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Storytelling to an acquittal at trial on charges of DWI and breath test refusal

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My Virginia driving while intoxicated clients who refuse to be breath or blood tested for blood alcohol and/or drug content post-arrest, know that a first-time refusal conviction spells one year of no driving at all, with no exceptions. If also convicted of DWI, an additional year of suspended driving gets tacked on, but at least with eligibility to apply for restricted driving privileges for such driving as for work purposes. One year of no driving at all is a bitter pill to swallow.

A good number of my clients are willing to risk a refusal conviction in order to try to beat a DWI charge, even if that means using public transportation, taxis and the kindness of friends’ and families’ transportation during the one year of no driving on a refusal conviction. Defendants also always have the right to appeal any General District Court conviction, for a retrial in Circuit Court, and by jury for jailable charges and for a charge of refusal.

Congratulations to my client who recently declined the common guilty plea offer in Virginia General District Court to plead guilty to DWI and dismiss refusal, when nothing else unusual is involved in the case. We ended up winning my motion to suppress my client’s arrest, leading to his acquittal.

The Virginia state police officer/trooper testified that he saw my client weaving in and out of heavy traffic on the highway, and then driving at a high rate of speed after exiting from the highway. The officer smelled alcohol on my client’s breath, and saw glassy and bloodshot eyes. He said my client’s speech was slurred at times, and that my client said he had a couple of drinks.

My client did field sobriety tests. He allegedly stepped off the line three times and thrice missed heel to toe while doing the walk and turn test. Instead of taking the instructed nine steps out and back, he reportedly took eight steps out and back.

For the one leg stand, he allegedly put his foot down twice, and started counting from the number one each time he lifted his foot, even though the cop had instructed him to resume counting where he had left off when re-lifting his foot.

My cross examination focused on telling an alternatively plausible story of a man just trying to get home — even if improvidently weaving around traffic to get there more quickly — at a time of night (2:00 a.m.) when most people are asleep. Through my cross examination, I got the police officer to admit that my client immediately obeyed the officer’s emergency lights. My client was polite and cooperative. He had no problem producing his driver’s license, and did not fumble to do so. As instructed, he counted aloud and did not raise his arms on both the walk and turn test and one leg stand test. My client counted aloud correctly and in order.

Despite my pretrial motion, the judge declined to have a DWI trial followed by a bifurcated refusal trial, so the judge allowed the prosecutor to try to bring in the preliminary breath test results to help argue that the police officer had probable cause to arrest my client. Bless the officer for honesty testifying that while he offered my client the test, he never advised my client that he had the right to refuse the preliminary breath test, which right must be advised to suspects, pursuant to Virginia Code § 18.2-267(C) and (F). After the prosecutor and I spiritedly argued the matter before the judge, he came down on my side, keeping out the PBT results from evidence. Had the PBT results come into evidence, the result was substantially high enough for the judge to have found probable cause to arrest, thus bringing us closer to the possibility of a refusal conviction. Thankfully, preliminary breath test results are inadmissible for considering guilt for DWI, but how many judges are able to disregard such PBT evidence once they hear it? The prosecutor rested his evidence as to my motion to suppress my client’s arrest. In arguing my suppression motion, I highlighted my above story of my client’s plausibly being someone imprudently driving around traffic but simply wanting to get home to sleep, being frustrated in his goal to get to home and sleep by the police stop, and doing his best — at all times politely and cooperatively — to follow what the officer had asked this likely tired man to do. I pointed out that the officer testified to an odor of alcohol but did not say whether the odor was light, moderate or strong. The officer did not testify to when the alcohol was consumed, where, nor in what sized for each drink. I of course pointed out the good things my client did in producing his license without issue, being polite and cooperative and doing plenty of the field sobriety test instructions right or close to right.

The judge cut off my argument after a few moments and asked what the prosecutor’s response was. Trustworthy judges make such interruptions when they are leaning towards agreeing with the lawyer the judge cuts off, being ready to let the cut-off lawyer resume argument if the judge might rule against the cut-off lawyer. Here, the prosecutor highlighted my client’s driving behavior, odor of alcohol, glassy and bloodshot eyes, admission to having had a couple of drinks, and errors with the field sobriety tests.

The judge then started stating his view on my suppression argument, leading to his decision. The judge at one point said his decision was a close call, and stated his agreement with me that some of my clients behavior could have been caused by tiredness from the late hour. The judge suppressed the arrest, which of course meant an acquittal on DWI and refusal, because conviction for both required the prosecutor’s meeting the significantly higher standard of proof beyond a reasonable doubt.

Unfortunately, many judges would have found probable cause to arrest my client. I believe our judge reached the right result in ruling that probable cause to arrest was absent. This acquittal, as all my acquittals, was at least as exhilarating as my first acquittal twenty-three years ago.