HOW TO GET THE BEST RESULT!
A driving under the influence case has two separate parts, the criminal case and the Department of Motor Vehicle (“DMV”) hearing. Each involves the same four components: attacking the police officer’s observations of bad driving, contesting the police officer’s field sobriety tests/results, refuting the so called “objective symptoms of intoxication,” and casting doubt upon the validity of the chemical test results. The DMV hearing uses administrative law and uses relaxed rules of evidence addressed in Section V.
I. Attacking the police officer’s observations of bad driving
The prosecutor will try to show that alcohol impairment caused bad driving. For example, a prosecutor will argue that speeding or failing to stop fully at a stop sign is consistent with being impaired.
We will emphasize all the good driving. In the example above, speeding or failing to stop fully at a stop sign, the officer typically in his report omits everything that the driver did correctly. Cross examination of the officer can show, for example, that when the officer turned his overhead lights on to pull the driver over, the driver immediately reacted to the lights (consistent with sobriety). The driver chose an area to pull over that was safe (consistent with sobriety). The driver pulled over safely (consistent with sobriety).
In addition, cross-examination could show that even if the driver was speeding, the officer has pulled over many other persons for speeding who have been sober. Also, cross examination can show that the driving that jurors associate with “classic drunk driving,” such as crossing over lanes, accidents and fleeing a police officer, did not occur in this case. If an accident did occur, we would endeavor to show that the accident was not caused by alcohol.
II. Contesting the police officer’s field sobriety tests
The prosecutor will highlight anything that the driver failed to do correctly during the field sobriety tests.
We will contest the field sobriety tests several different ways. First, we must educate the jury that being impaired for purposes of driving under the influence cases means mental and not physical impairment. The prosecution and the police officer, almost inevitably emphasize errors that a driver makes on field sobriety tests that may easily be explained by physical rather than mental impairment.
Then we attack the actual test “results.” The officer may have directed the driver to perform, for example, a “heel-to-toe” test, in which the person must take a certain number of steps in one direction and then turn around and take another number of steps to return. The officer will say, for example, that the person did not place his heel immediately against his toe on step number three and left a distance of one half inch between his two feet. Physical problems of being stiff from driving late at night can cause such a result. Moreover, uneven surfaces, fatigue, and/or glare from oncoming traffic (or from the officer’s own vehicle) can cause such a result. Equally importantly, cross-examination must show that certain gaps between a person’s heel and toe is, in fact, permissible.
In addition, we will show everything that the driver did correctly on each of the field sobriety tests. Using again the example of the heel-to-toe test, we can break down the heel-to-toe test into separate parts. For example, if the officer had the person perform eight steps out and seven back, with the person having a gap between his heel and toe at step four going out, we could show that the person did step one going out correctly, step two, step three, step five, step six, step seven, step eight, etc and keep a tally of everything done correctly vs. those done incorrectly. If, for example, during the entire field sobriety tests, the person did 79 things correctly and three things incorrectly, that surely would be a passing grade in school, work, etc.
III. Refuting the so called “objective symptoms of intoxication”
The prosecutor will elicit information from the officer about, for example, driver’s red or watery eyes or “odor of alcohol” on his breath.
We must, from the very onset of the case with jury selection, emphasize that the law does not prohibit drinking and driving. The law prohibits driving while impaired. This difference is vital for cross examination of the officer concerning the “objective symptoms of intoxication,” because those so called symptoms are present when persons drink, whether or not those persons are impaired. In addition, we can show that other factors, independent of alcohol consumption, can produce red eyes (contacts, fatigue). In addition, the “odor of alcohol” is a misstatement because the additives in alcohol, rather than alcohol itself, create the odor.
Alternatively, we could (if factually correct) use the “odor of alcohol” to establish that the driver drank immediately before getting behind the wheel and thus has a rising blood alcohol defense (while driving, the blood alcohol was under the limit, but by the time the driver is taken to the station for the test, the driver’s body has fully absorbed all the alcohol and thus the person at the time of the test is over the .08 limit).
IV. Casting doubt about the validity of the chemical tests
The prosecutor will call as a witness a person from the Department of Justice, the “criminalist,” to testify about the chemical tests and to render an opinion about the state of sobriety of the person who was driving. The chemical test may be blood or breath.
Cross examination of the criminalist can show, for example, that the criminalist is biased because he made his mind up before coming to court that the driver was under the influence at the time of driving. In addition, cross-examination could reveal that the criminalist has very limited experience, or that all of his experience has been gained through his employment with law enforcement. Moreover, the criminalist’s resume could show that he has never written any articles about his so called area of expertise (in contrast to a defense expert).
A. Blood
Cross-examination can show that the criminalist, in a case of a blood test, did not test the sample to determine if the appropriate level of preservative and anti-coagulanant were present (the absence of either or the insufficiency or overabundance of either may cause a false high reading). Moreover, we can retest the blood sample, and if the result is different (lower), cross examine the criminalist about the discrepancy between the two results.
B. Breath
As to a breath test, the criminalist can be cross examined concerning the breath result being an indirect measure of a person’s blood alcohol, the shortcomings of the calibration of the breathalyser (if any), and any failure by the officer to maintain the appropriate 15 minute observation period before administering the breath test to prevent contamination by ethanol in the mouth.
V. The Department of Motor Vehicle Hearing
Independent of the criminal courts, the Department of Motor Vehicles will take action against the driver’s license when a person is arrested for driving under the influence of alcohol. The driver has only ten days after the stop by police to request a hearing so that his license is not suspended.
The hearing is very different from a criminal court trial. The judge is an administrative law judge and the rules of evidence are much more informal, making it far easier for the DMV to introduce evidence against the driver. However, we can use these relaxed rules of evidence to our advantage. The officer’s report must be properly sworn before it can be used against the driver. If, however, the officer’s report is not properly sworn, you could win. If the DMV hearing officer only uses the officer’s report and the report fails to show specifically why the officer stopped you, you could win.
In addition, we can attack the officer’s observations of bad driving, contest the officer’s field sobriety tests/results, refute the so called “objective symptoms of intoxication,” and cast doubt about the validity of the chemical test/results, just like in a criminal trial. Usually the officer and the criminalist are not present at the DMV hearing. We could have the advantage of having better and more persuasive evidence because our side would present live witnesses and would not just rely on hearsay evidence as would the DMV.
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