May 16, 2011 Obtaining an acquittal after a blowout
It goes without saying that one cannot win a criminal trial without pleading innocent. Certainly, except for those who are idealists, whether to negotiate a guilty plea deal is a matter of realpolitik of hedging bets as to possible verdict and appeal outcomes; possible collateral consequences to careers, academics, student loan eligibility, security clearances, immigration status; possible probation violations; and any future criminal cases; and possible sentences, even for those who in fact committed no crime.
A criminal defense client will have less problem pleading innocent when s/he knows his or her criminal defense lawyer will fight like hell and with beneficial skill every step of the way. Those flat-fee-paying defendants who do a dollars-and-cents analysis may wonder whether the lawyer’s heart is into spending more time on a trial than the lower amount of time needed by the lawyer to handle a guilty plea. Some lawyers answer that questin by billing additional for a trial. I ordinarily answer that not by charging extra for a trial — because I prepare for trial every step of the way — but by conveying through honesty and my actions that my personal ethics, the governing professional ethics rules, my history as a lawyer, and my passion for doing trials translate into my preparing with gusto for trials early on and at every stage. The truism holds that preparing a case to settle makes it more likely to go to trial, and preparing it for trial makes it more likely to settle.
In a recent bench trial victory, I used word pictures to bring the judge to the scene of the incident, in order to see the reasonable doubt that necessitated — at least as I argued — an acquittal, which we obtained.
The sole police officer on the scene asserted that he found my client’s car stopped with its ignition on, on the lefthand side of a major highway with a flat left front tire. The prosecutor focused his testimony on my client’s moderate odor of alcohol, slurred speech, bloodshot eyes, and stumbling when moving outside the car.
Through my cross examination of the police officer and through my motion for judgment of acquittal and closing argument, I reframed the matter as a police officer with little present recall of what happened; a thin police report in terms of scope and length; a defendant whose behavior could have been explained as startled by a tire blowout on a highway during an hour when most people are sleeping; failure to show when my client drank; and failure to connect any alcohol use to driving behavior. I also focused the officer during cross examination on my client’s complaints about his knee, and followed that up with testimony from my client’s parent during our case in chief about his significant knee problem that included surgery a few years ago. As always, cross-examination served the purpose not only of deflating the opposing witness’s direct exam testimony, but also to further out trial story, theory and themes, as I outline herein.
As always, I timely demanded the presence of the breath technician within the twenty-day pretrial deadline, thus precluding the introduction of any breath testing results without the breath technician’s presence. Lo and behold, the breath technician had a conflicting obligation and did not appear at trial.
My client refused to do further field sobriety tests after complaining about knee discomfort. This being a Maryland trial, I successfully argued to the judge that such a refusal cannot be adversely considered at trial, because in Maryland field sobriety tests are searches, and refusal to do searches is inadmissible at trial, as I have explained here. Unfortunately, I am not aware of any other states that treat field sobriety tests as searches, so refusal to do such tests outside of Maryland may still be admissible into evidence.
We were in front of a judge who seems to be very careful before issuing acquittals. The judge made clear to me at trial that he did not think there was sufficient evidence to find that the tire blowout was a startling event that contributed to my client’s behavior nor that the blowout made the car inoperable. I considered this revelation a gift on my road to persuasion, because the judge shared this with me while I argued there was no reasonable articulable suspicion to believe that my client was operating or attempting to operate an inoperable vehicle, even though the ignition was on — because I could then refocus my remaining arguments around the judge’s thought process.
At the close of the prosecution’s case in chief, I moved for judgment of acquittal on all counts. The judge acquitted on driving under the influence, and left intact the lesser included offense of driving while impaired. Such a result often happens in Maryland for me at the motion for judgment of acquittal stage where there are no breath test result in evidence and no evidence that my client refused a breath test, so long as my client’s alleged behavior is no worse than poor coordination that does not cross the line into falling down, vomiting, or urinating on oneself (which has happened to many of my clients).
I put m client’s parent on the witness stand to detail my client’s significant knee problems over the years, with one knee being a problem, and the other knee having problems overcompensating for the problem knee. As usual for drunk driving trials, my client did not testify; the Fifth Amendment forbids criminal defendants’ trial silence from being used against them.
Early on in closing argument, I became for a brief moment my client’s car, driving towards the judge and hitting a bolt or nail, causing the tire to blow out. I then illustrated how the officer saw no driving behavior. I argued that there was too much reasonable doubt about whether alcohol had any influence on my client’s behavior that the officer witnessed. The judge agreed and acquitted my client.
Certainly, the stakes are often lower for this and other misdemeanor cases than with felonies, for pleading innocent and having a trial. Nevertheless, my general watchword is to go to trial when the likely verdict and sentencing outcome looks to be not much worse than what might happen if the defendant pleads guilty. Sometimes the outcome will be even better with an innocent plea, like in this acquittal.