Dare to challenge a judge’s evidentiary ruling, and s/he might growl: "I have already ruled, counsel. Move it along." The judge may not be growling only to directly address the lawyer’s behavior, but  alsoto scare the lawyer’s client so much that the client will beg the lawyer not to upset the judge too much.

Give into a judge’s wrong and damaging evidentiary ruling, and risk irreparble damage.

With the foregoing in mind, recently I went to trial in a Virginia driving while intoxicate (DWI) case. I anticipated that our victory relied on convincing the judge that probable cause was absent to arrest our client, because failure to suppress seemed nearly inevitable for our client’s blood alcohol content test to come into evidence, to be relied on by the judge as accurated, and to lead to a conviction for driving well over the 0.08 legal limit for blood alcohol level.

At the suppression hearing, the prosecutor presented the defense with a mixed bag of damning and redeeming evidence. Damning was my client’s one-car accident leading his car to smash into an embankment, very recent alcohol drinking activity, and all six clues for the nystagmus test (with the trial judge incorrectly assessing the HGN results as very bad). Redeeming for us was that the ground was wet from recent rain, my client told the officer his car skidded on the wet road, he did great on the so-called standard field sobriety tests, other than the HGN,  and showing no clue other than stepping off the walk and turn line but once. Also helpful was that the judge sustained my objection to the officer’s testifying from his notes, leading his testimony to be more watered down against my client than his actual police report. Hallelujah!

On redirect, the prosecutor asked the officer (this exchange is to my best recollection and not verbatim)

Prosecutor: What was the result of the handheld preliminary breath test result?

Jon Katz: Objection. (Available bases: Absence of the officer’s telling the defendant he did not have to take the test. Absence of the officer’s saying it could not be used for guilt-innocence determination. Absence of showing that the preliminary breath test machine was a model approved by the Virginia Department of Forensic Sciences. Absence of proof that the machine had been recently and correctly calibrated for accuracy and that the oficer was properly trained in operating the machine, was properly operating it, was properly instructing my client in using the machine, and was properly reading it. Had the judge let in the PBT result, the result would have been shown to be well over the 008 BAC legal limit, and the judge would have likely found probable cause to arrest my client.)

Judge: Overruled. (Or: I have already ruled, counsel. Move it along.)

Jon Katz: Judge, the law prohibits this evidence without a showing that the PBT machine model used was one approved by the DFS and properly satisfied. (BINGO! Responding to an incorrect ruling with the Written Law.)

Judge: Commonwealth, lay your foundation.

Prosecutor: What model PBT machine did you use? (The judge already has overruled my objection that this PBT line of questioning exceeds the scope of my cross examination of the officer.)

Officer: I do not recall. (Praised be this officer’s honesty here.)

Prosecutor: Judge, I will now call the DFS blood technician to establish the PBT machine model use . (I highly doubted she would know, and she did not.)

In arguing that no probable cause to arrest existed, my focus included: "How many convictions do we see for DWI where the field sobriety tests are this excellent? The law directs us to look at the totality of the circumstances."

The judge proceeded to say that the evidence was close on probable cause, but that he was ruling in our favor, and dismissed the case.

In the moment, I risked the judge’s irritation at my asking him to revisit a ruling that had no basis in the law. Had I done otherwise, we would have lost. Instead, we won.