Sep 14, 2011 “Innocent” can be a beautiful plea
As I repeatedly tell my clients when advising them to plead innocent and go to trial, that is the only way to have a shot at beating the charges against them, and sometimes nuggets of gold are discovered during trial that were not obvious before starting the trial.
In that spirit, my client and I recently took his Virginia drunk driving case to a bench trial. Nothing jumped off the page immediately that we would win in this county where prosecutors and police rarely show us police reports, and do not have to, by law. By the same token, I did not anticipate any significantly worse outcome by pleading innocent than pleading guilty, and anticipated no active jail time if convicted. I kept my eyes on telling the most persuasive possible story as the trial proceeded.
The arresting officer testified that my client’s wheels repeatedly touched the yellow dividing line, that a moderate odor of alcohol was coming from the car (with a passenger inside) after it was stopped, and my client admitted to drinking at a nightclub several hours ago. The officer testified to field sobriety test performance that was significantly less than stellar. He said my client mentioned a broken ankle from many years ago, and the officer tried downplaying that.
The officer tried testifying from his notes. This particular judge tends to allow that, but also allows defense counsel to see the notes on request when that happens, and that is what I did.
The judge integrated the suppression motion and trial together. The officer had already given me good material for a favorable story for my client, so I narrowed my cross examination to include highlighting how the officer had completely deviated from the National Highway Transportation Association-approved method for doing the one leg stand by having my client count backwards rather than having him count to thirty by the one-one thousand, two-one thousand method, thus raising the question about how much the officer may have deviated from the NHTSA standards in doing the rest of the field sobriety testing.
In closing, I focused the judge that all of my client’s behavior was consistent with being tired at a time when most people are asleep, and with someone having previously suffered a broken ankle. It probably did not hurt my client that he said he had finished drinking several hours before, and that the officer testified to a moderate odor of alcohol rather than a strong odor of alcohol.
The judge issued what might be seen as a compromise verdict, finding my client guilty of reckless driving rather than drunk driving. Arguments can be made that the judge had no legal authority to do anything other than finding innocence or guilt of the only filed count, which was drunk driving. However, had I complained, what would have happened if the judge had then converted the guilty verdict to drunk driving, and left my client with an appeal as the only option (with the risks of a worse sentence if convicted on appeal)?
Reckless driving was a much better result than a drunk driving conviction here with the sentence being only thirty days of restricted driving (versus a year of mandatory restricted or suspended driving for a drunk driving conviction) and a fine.
“Innocent” can be a beautiful plea.