Why our DUI attorneys don’t think your DUI is unwinnable (and you should’nt either)
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Previously, I mentioned reasons why some or all of the State’s evidence in a DUI case may never see the light of the courtroom. But what if the Judge decides the evidence is admissible?
What does the evidence really mean?
From a Criminal Attorney’s perspective, DUI cases are an entirely different animal than other criminal crimes. In most criminal cases, the question presented is whether or not the State can prove the crime alleged beyond a reasonable doubt. The Criminal Law Attorney builds his defense around inconsistencies in the evidence, “poking holes in the case”, and asking the jury to quit because a reasonable doubt exists as to the prosecutors version of events.
When trying a DUI case, however, the DUI attorney goes on the offensive. He points out the fundamental unfairness of an officer taking seemingly innocent activity and interpreting it as an indicator of criminal activity. He teaches the jury how the field sobriety tests are abnormal exercises, and therefore ridiculous evidence of normal faculties. He points out to the Jury the shaky science that the State tries to hang their hat on. He shows the Jury that the evidence probably does not mean what the Government thinks it means.
The majority of DUI cases naturally start with an officer stopping a car. Take the case where the driver is stopped for speeding. Almost everyone drives in excess of the speed limit at one time or another. People speed for a variety of reasons. Speeding is a non criminal infraction, punishable by a slight fine. The problem is the case where the driver is stopped for speeding, but ultimately arrested for DUI. Now, the arresting officer, if called to testify, will turn to the Jury and tell them that in his training an experience, speeding is a sign or indicator of impairment.
That would be fine and dandy, but what about the case where the driver was stopped
for driving to slow? Almost everyone drives slower than the speed limit at one time or another. People drive below than the speed limit for a variety of reasons. Driving too slow is not an infraction. However, if this driver was ultimately arrested for DUI, then when the officer was called to the stand to testify to the jury, he would turn to them and tell them that in his training and experience, driving too slow is a sign of impairment.
See the problem? In a DUI trial, anything that is not perfect driving could be used by the arresting officer to be a possible sign of impairment. And the officer uses the following stock line: “In my training and experience, [insert activity here] is an indicator of possible impairment. The State’s theory of the case is that a multiple little possible indicators of impairment equal a drunk driver.
So what to do? A good DUI attorney will simply then get up on cross examination and show the jury all the perfect driving behavior. Maybe the client was speeding, but he maintained a single line just fine. Had he not maintained the single lane just fine, officer, you would have told us on direct, right? Because driving outside the single lines is an indicator of being impaired. And our client was driving inside the single lanes. Maybe the client slowed down when the officer turned on his take down lights, pulled over to the side of the road in a model manner, and put the car in park. If the client did all this correctly, then the DUI attorney must inform the jury. The conclusion, if done correctly, is unmistakable: the client may have done a handful of things incorrectly, but most of his driving was ok, was perfectly normal.
After a stop, the officer is likely going to ask the defendant out of the car to conduct field sobriety exercises. The officer has a battery of three main different exercises that he is going to try to tell the jury are standardized tests that can help ferret out the drunks from the rest. Each test has multiple components that all will be minutely studied and dissected by the cop to determine if the client was drunk. For example, the walk and turn requires nine steps down a line, heel to toes, then a very specific three part turn, then nine steps back. The accused is told to keep his hands down at his sides during the test. Counter intuitively, he is instructed to not use his hands for balance. If the tested does anything incorrectly, then the officer will mark him off, concluding that is an indicator of impairment. If the tested does not remember the lengthy instructions correctly, then the officer will consider that an indicator that alcohol has impaired the driver’s memory.
What to do? The officer wants mistakes on these tests to be indicators that the clients normal faculties are impaired, A skilled cross examiner will get the DUI cop to admit that he is trying to use abnormal exercises to try to measure the clients normal faculties. For example, the officer’s heel to toe test requires the tested to walk down a thinly painted line heel to toe, one foot to another. People don’t walk like this down the street. The officer’s stand-on-one-foot is likewise abnormal’ people don’t stand on one foot in normal day to day activities. A DUI attorney should start with the fundamental ridiculousness of the officer’s exercises.
But often, the officer slaps the handcuffs on the defendant after these abnormal exercises. He carts the defendant down to the police station, and he offers the defendant a chance to blow into his special machine. This machine is the Intoxilyzer 8000. This machine will relay a blood alcohol number. If that number is over a .08, then the State will tell the jury to convict because over the limit, breaking the law. If the client refuses to take the test, then the State will argue the client had a guilty conscious and that’s why he chose not to take the test.
What to do? A skilled DUI lawyer cross examiner does not shy away from the breath testing machine. He must attack it. At its heart, the idea that this machine that takes a sample of a person’s breath and analyzes it to determine what a person’s blood alcohol content is patently ridiculous. The State will not present evidence to show that the machine is a scientifically reliable machine, and it is the defense attorney’s job to illustrate that point. A DUI attorney must inform the Jury that the officer could have taken the driver’s blood. Logically, alcohol level in the blood clearly is easier determined by testing a blood sample than some by a machine that analyzes breath. The truth is that officer’s due not request blood tests because they are more expensive than breathalyzer tests. Your DUI attorney must explain this fact to the Jury. The jury must be made aware of it.
What is the relevance if the driver decided not to blow into the machine? Does that mean the defendant was drunk, or just distrustful of a machine the arresting officer explained nothing about? The DUI attorney can take the officer through the questions he asked to the client before asking for the breath sample. The officer never tells the client anything about the reliability of the machine, or how it works. Remembering that it is perfectly legal to have a drink and drive, so long as you’re not drunk, it seems perfectly reasonable that a client who sipped on a drink does not want to blow his breath into a machine without knowing if it is reliable or not. You DUI attorney must explain to the jury that it is perfectly reasonable for an accused citizen, who has already been placed under arrest, to choose to not be tested by a machine he knows nothing about when his criminal record is at stake.
An experienced DUI attorney knows how to spot and attack these issues. Our attorneys know the game. Before you decide you DUI case is unwinnable, consult an experienced DUI attorney.
