Winning a DWI trial by putting our own traffic stop witness on the stand
It is St. Patrick’s Day evening, and a police officer testifies at my client’s bench DWI trial that he stopped my military-enlisted client for blowing a traffic light that was solid red for my client at all times, with the officer driving a few car lengths behind my client in my client’s direction. The officer then investigated and arrested my client for alleged DWI/driving while intoxicated.
In my opening statement and on cross examination, I point out the questionability of the police officer’s accurate recollection of events, where his own incident report date is dated eight days after the incident and where he concedes from the witness stand that he might have taken at least over twenty-four hours to complete his incident report. Of course, such a substantial passage of time can cause faded memories, particularly on such essential points as whether my client had a solid red traffic light or green light when first he was approaching the intersection.
Cops do not have a monopoly on the truth. They come from the same gene pool as the rest of humans. Enter my client’s passenger, in his military uniform, who testifies that my client approached the traffic light on a green signal, got caught in some traffic that caused him to be in the intersection when the light turned from green to yellow, and cleared the light when it was still yellow.
We thereby have two diametrically opposed versions of what happened at the traffic light. My client’s liberty may rise and fall on the judge’s decision whether this traffic stop was lawful or not.
To take the wind out of the prosecutor’s sails, I proactively ask our passenger witness whether he had consumed any alcohol the night of the incident. He had two drinks, the first several hours before the police traffic stop and the second an hour before. He felt no effects of the alcohol.
Some judges might resolve such conflicting testimony in favor of the prosecution by pointing out the low burden a police officer has to conduct a traffic stop, which is reasonable articulable suspicion to believe that the defendant has committed a moving violation. That might work if the conflicting testimony is whether the defendant ran a stop sign, but not when the cop claims my client had a red light at all times and his passenger testifies that the light started as green when my client started going through the light.
Thankfully, our judge credited our client’s passenger testimony over the police officer’s testimony, thereby finding the traffic stop unlawful and my client not guilty.
Hot damn! Lucky for my client he had a trial witness to the police traffic stop of my client’s car– a lucid one at all times at that — in the first place AND we got assigned a judge who resolved the dueling testimony in my client’s favor when I think numerous other judges would have treated the stop as lawful.
Few trials are criminal defense shoe-in victories. At the same time, this and other trial victories only come from pleading the magic words of “not guilty”, or NFG (“not friggin guilty”).
Thanks to my client for pleading not guilty, and for being a team with me on the road to this acquittal. Military members convicted of DWI can risk their jobs, depending on the decisionmaking of their commander.