Image from National Institute of Standards & Technology.

Sometimes criminal defendants win their cases by getting the evidence suppressed. That is how I won a recent DWI case.

Where I practice, judges, not juries, decide evidentiary issues over suppressing stops, searches, seizures, arrests  and statements to the police, although juries may be instructed to determine whether the statements to the police were made freely and voluntarily.

I recently won a Virginia drunk driving trial at the suppression motion hearing stage, as follows: The arresting officer testified that my client was stopped after driving at a high rate of speed apparently over the speed limit. The officer testified that my client was blasting his music, was not immediately orally responsive to the officer, and was soft spoken. The officer testified that my client lives and is licensed to drive in Maryland, and further testified that my client refused to do field sobriety tests.

On cross examination, I confirmed that the police officer only started policing the same year as the arrest. That precluded lending any special reliance on the police officer’s testimony.  The officer also agreed with me that the officer offer for my client to do field sobriety tests, but did not tell my client which tests she wanted my client to take (e.g. horizontal gaze nystagmus; one-leg stand; walk and turn, or other tests.) The judge questioned whether I was helping the defense by asking whether the officer had specified the field sobriety tests she planned to administer. I took that as a good clue for the defense.

The prosecutor rested his case for the suppression motion. In orally arguing to suppress my client’s arrest, I pointed out to the judge that my client’s refusal to do any field sobriety tests was no indication of consciousness of guilt, and in harmony with the caselaw in my client’s native Maryland, that puts Marylanders on notice that field sobriety tests are searches whose refusal is not even admissible in evidence in Maryland, whereas Virginia’s caselaw is significantly different from Maryland’s on that point. The judge indicated that refusal to do field sobriety tests would not sway him against my client.

Consequently, in further arguing to suppress my client’s arrest — in order to keep out of evidence the Intox EC/IR II/breathalyzer test results — I pointed out that my client’s loud radio was a sign of the times, and the judge agreed. I also argued that the loud music could have accounted for my client’s slow response to the officer after being stopped. I suggested that my client’s quiet speaking voice was probably from submitting to the officer’s authority, and no type of admission, nor anything worse. I argued that the totality of circumstances did not justify an arrest of my client, despite testimony about such matters as my client’s driving behavior, his statements about his drinking behavior that night, and behavior after being stopped by the police.

The judge found no probable cause to arrest my client, so entered an acquittal.

Had my client agreed to take the roadside handheld breathalyzer test, which my client declined, and if the result had been 0.08 or higher and performed on a Virginia-state government-authorized preliminary breath test machine. we may not have achieved suppression of my client’s arrest. Praised be my client for having refused a roadside preliminary breath test.