Q:

OK. Was it a felony case because of high blood alcohol content?

A:

It was because he had a prior DWI. In this case, he was acquitted of the DWI.

Q:

What was the key to this case?

A:

One, it was showing that the officer really did not administer any of the field sobriety tests properly. Two, all the good things my client did, such as how he was driving. I also showed that there were other reasons that the officer did not take into account such as nervousness, the pressure to perform perfectly under threat of arrest, the anxiety that goes along with having to perform these roadside gymnastics, and the unfairness of it all.

Q:

So was a Breathalyzer test administered?

A:

My client refused. So, therefore, I had to explain to the jury why he refused, since a jury will likely hold that against somebody.

Q:

So it’s up to you to persuade the jury that there are valid reasons for refusing. It’s not a forgone conclusion that it’s a guilty thing.

A:

Correct, and in this case, I communicated to the jury that my client was not treated entirely fairly – his protestations of innocence and that he was not feeling well and why, were never really listened to, and that the officer just concluded that he was a typical DWI from the beginning, and so the officer did nothing except what would confirm that. So, after having to do all these tests that weren’t administered properly, and after my client had been treated unfairly, and how no one would listen to what he was saying, so why should he go and continue to participate in this completely unfair exercise? No matter what he did, it was a foregone conclusion that he was going to be arrested, so why continue?

Q:

As the officer is pulling the person over, does the officer have access to the fact that there is a prior DWI?

A:

He does have access to that, but in this case, my client was stopped for incorrect tags on the vehicle. That was one of the things I mentioned in the case: stopping the vehicle had nothing to do with driving behavior. So, how can you say that he was incapable of driving safely?

There was a video in this case as well, and we used the videotape to our advantage. Between the two cars in the video, the police car and my client’s car, it was the police officer who was driving well in excess of the speed limits, weaving over lanes to catch up, and immediately when he got behind my client, he turned his lights on. So, my client is driving along at night, driving the speed limit in his lane, and suddenly this car comes barreling down the road with no emergency lights, so he just thinks it’s another person. This car comes barreling down the road at a high rate of speed, right up on his tail, and suddenly the lights go on. When that happens, my client’s car moves a little bit in the lane but still inside the lane, and they say that that moving in the lane is caused by his intoxication. I suggested to the jury that the police officer caused that when he came barreling behind him and right up on his tail when he suddenly turned on his lights and startled him. That was the beginning of the end for my client.

Q:

What kind of sentence was your client facing if found guilty?

A:

He was looking at prison time.

Q:

It’s very interesting to hear how that all goes down. Most people only know what they see on TV.

A:

Sometimes people think a DWI arrest is a done deal, but preparing a defense is very similar to my approach in the other case. You take the time to go through all the police reports thoroughly, you go out to the scene, watch the video carefully, and it becomes clear that there are completely innocent explanations for what the police are charging as a crime. You know, as in blaming my client for taking too long to come to a stop in the parking lot of the restaurant he pulled into. Well, the restaurant had no parking spots, and it was the middle of the night.

Q:

Yeah, you don’t want to stop in the middle of a dark road.

A:

Right, and he was looking to go to the edge and park near the grass so it would be like a parking spot. You could see that on the video that that’s where he parked. Then, there’s this gravel where there are divots from other cars driving in and out, and yet the officer expected my client to perform almost perfectly in the field sobriety test on this very uneven surface of loose stones and rocks. He’s supposed to walk in a straight line despite the officer not giving him a straight line to walk on, and he’s supposed to stand on one leg, etc. The officer gives him a series of instructions of 9 or 10 different things to do and explains it all in about 15 seconds. Doesn’t give him any chance to practice, and expects him to remember all of those different things after only hearing them one time.

In the walk-and-turn test, the officer tells him

you need to walk, start with your left foot, walk heel-to-toe, in a straight line, hands down at your side, counting out loud, when you get to end after taking 9 steps, turn pivoting on your right foot taking small steps with your left foot, turning all the way around, walking back the same direction in a straight line, walking heel-to-toe, hands at your side, counting out loud again.

This officer admitted that he spoke very quickly, and you could see that he did on the video. He tells my client the instructions one time, and my client performs well on the test, but the officer still counts it against him because he didn’t do every single thing that he was told. He was expected to do the test on this poor uneven gravel surface, and the officer never takes that or his nervousness into account. That’s a lot of pressure. Someone is taken out of their car on the side of the road and expected to perform in this test, and the officer doesn’t take any of those factors into account and holds them against him? That’s just not fair.

Q:

Thank you for taking the time to explain these things. A lot of people don’t have a glimpse into these kinds of situations at all, and it’s good to know.

A:

I’m not saying that DWI should be legal – absolutely not – but when you arrest someone, it should be done properly. Everyone should be able to expect that the police will be properly trained, that they’ll follow their training, and that they will treat everyone fairly. They shouldn’t jump to conclusions, and they should objectively look at the facts and presume that everyone is innocent until proven guilty.