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Winning a DWI trial after keeping out the breath test result

Feb 17, 2012 Winning a DWI trial after keeping out the breath test result

If given a choice between having my client’s drunk driving case prosecuted in Virginia or Maryland, ordinarily I would choose Maryland. In the Maryland counties where I practice most often, including Montgomery, Prince George’s, and Howard, ordinarily, absent such unusual circumstances as a bad accident or an unusually high blood alcohol content result on the breathalyzer machine, my clients who are convicted of a first-time offense receive a probation before judgment, which avoids points off one’s license, and enables to the PBJ recipient to say s/he has not been convicted for the case, because a PBJ is not a conviction.

In Virginia, however, any first-time driving while intoxicated conviction mandates a one-year suspension of one’s Virginia driver’s license, and a one-year suspension of an out-of-state licensee’s Virginia driving privileges, with eligibility to seek limited restricted driving privileges; and completion of alcohol education. Findings of having a blood alcohol content over 0.15 or a second DWI conviction within ten years brings mandatory minimum jail time, and longer waiting periods to start restricted driving privileges. PBJ’s are not received for DWI’s in Virginia. That is not the situation in Maryland

In Virginia, a conviction for unreasonable refusal to provide a breath or blood test after a DWI probable cause brings one year of suspended driving without restricted privileges, and longer for subsequent convictions. That is not the situation in Maryland

In Virginia, restricted driving is only permitted with the ignition interlock for subsequent convictions within ten years, and for convictions for DWI’s with a least a 0.15 BAC. That is not the situation in Maryland, either.  

On balance, my Virginia DWI clients more than my Maryland DWI clients feel higher stakes to plead not guilty when charged with subsequent DWI’s, BAC’s of at least 0.15, and with refusal along wtih the DWI, and when prosecutors offer to strike the alleged BAC, strike the subsequent offender charge, and/or strike the charge of refusal. I advise my Virginia clients risking mandatory minimum jail time or loss of license for refusal to balance the following: chances of winning at trial in District Court and through any de novo trial on appeal; the range or most likely penalties of convicted at trial; and future problems from a conviction.

Recently, a Virginia client took a risk of going to trial, and the risk paid off in an acquittal, as follows.

The police officer stopped my client for allegedly drifting into the adjoining lane. The officer had my client do field sobriety tests, and testified to my client’s putting his foot down fourteen times on the one-leg stand, and repeatedly missing heel-to-toe throughout the walk and turn test, as well as taking two steps too many on the walk-and-turn test. The officer testified to a strong odor of alcohol in the car, but my client had a passenger who had been drinking, and the officer never checked the odor of alcohol on my client separately from his passenger.

During my cross examination, the arresting officer admitted he wrote in his criminal complaint that my client put his foot down five times during the one-leg-stand test. On redirect, the only explanation he could provide for the huge gap between putting my client’s foot down 14 and 5 times was imprecise paperwork. That insufficient answer was key to my arguing that the officer clearly was relying at trial on his paperwork, based on the number of times he needed to refer back to it during his testimony. Therefore, his paperwork — which was fraught with imprecision, at least at to his report on the one-leg stand — had become the officer’s erroneous gospel.

For suppression of the car stop and arrest of my client, I called my client’s car passenger to the witness stand, who said: My client did not cross into the adjacent lane, and instead briefly started going towards the other lane but corrected that; my client told the police officer that he was physically unable to perform the one leg stand and walk and turn test, despite the officer’s saying that my client made no such claim to him. The passenger also confirmed that my client is very uncoordinated. Also for suppression, we called another friend to the witness stand who corroborated my client’s lack of coordination. 

The judge denied my suppression motion.

The prosecutor put on the witness stand not only the stopping police officer, but also the breath-testing officer. The judge sustained my objection to admitting the certificate of analysis into evidence, after I argued in part that the Virginia Department of Forensic Science’s regulations for administering alcohol education tests require that the breathalyzer be checked every six months for accuracy, and the prosecutor had provided no admissible evidence of such accuracy check.

We had retained a breathalyzer expert, but once the judge sustained my objection to the admission of the BAC scores, our expert was not needed.

In closing, I argued such items, beyond those above, as the following: This was a rookie cop — not a problem in itself, but here possibly relevant to his mixup with his paperwork — who did not testify to checking the odor of alcohol on my client himself, did not testify about how much my client drifted into the other lane, nor how much he missed heel-to-toe on the walk and turn test. All of these considerations gave cause for pause, I argued, about whether the prosecutor had proved his case beyond a reasonable doubt.

"Not guilty," the judge ruled. 

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