Winning in the absence of a breath technician
When a criminal defendant’s trial date continuance motion is denied, s/he ordinarily must proceed to trial on that date, or resolve the case by settlement negotiations. When a Virginia prosecutor is unable to obtain a trial date continuance, s/he can move the court to enter the casenolle prosequi, which is a case dismissal without preventing the prosecutor from subsequently recharging the case: A “[n]olle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown.” Va. Code § 19.2-265.3.
I regret the many times that Virginia trial judges grant nolle prosequi‘s over my objection, even when clearly used as a prosecutorial end-run around a denied prosecutorial continuance request. Then again, those who don’t want the vagaries of the battlefield do not belong doing criminal defense in the first place.
Today, I write about a happy ending arising from the prosecutor’s denied continuance motion in a driving while intoxicated case, followed by a denied request to enter the case nolle prosequi.
My client was charged with DWI after crashing into a highway barrier after speeding on a slick road. We came to the trial date armed with a breath test expert, whom we disclosed to the court and prosecution three months earlier. Our expert witness disclosure made clear that our expert was coming from several hours away, and that a return trip by our expert implicated additional expert expenses.
Despite my three-month-old expert witness disclosure, the prosecutor on the trial date checked on the whereabouts of the police department’s breath technician, to learn that the breath technician was offsite in training on our trial date.
The prosecutor, therefore, moved to postpone the trial to get the breath technician to court. I successfully objected, pointing out that the prosecutor already had obtained a postponement on the first court date for the very purposes of presenting the testimony of the very same breath technician who was absent on our new court date. I pointed out that my expert witness could have saved an unnecessary hours-long trip to court had the prosecution simply subpoenaed the breath technician’s presence and informed me way in advance of any issues with the appearance of the technician.
The judge denied the prosecutor a trial continuance. The prosecutor then moved to enter the case nolle prosequi. Without even inviting argument from me on that, the judge denied the prosecutor’s nolle prosequi motion. The case was immediately called for trial.
The prosecutor tried painting a story of my client’s speeding (admitting going 90 miles per hour to the police officer) and car crash being connected to his admitted drinking, which drinking the prosecutor also claimed caused my client not to have been more coordinated during the field sobriety tests. Through cross examination and closing argument, I painted a picture of my client as a man who had received his just desserts — in the form of crash that totalled his car — as a result of driving too fast on a slick highway, but who had not been proven beyond a reasonable doubt of driving under the influence of alcohol, where his head was clear but his body was wobbly from the startling event of this serious collision. It did not help us, though, that the police claimed my client had a strong odor of alcohol, and watery, bloodshot eyes.
My cross examination was aided by the police officer’s need to refer several times to his rather brief handwritten notes and brief typed report to “refresh his recollection” (which for some police officers is actually a method to read the document and recite back from it). In Virginia, I am not automatically entitled to review the statements, notes and reports of prosecutorial witnesses, but am permitted to do so when that witness refers to notes or reports to refresh his or her recollection (although sometimes just the portion of those documents that are used to refresh recollection).
I pointed out, for instance, that my client was polite and cooperative, did not fumble to give the police officer his driver’s license, and did not slur his speech. My client counted backwards correctly, although allegedly slowly at two points, and did the finger dexterity test correctly except to have done it too many times. He never put his foot down on the one leg stand, despite claims of wobbling.
Our judge pointed out during my cross examination of the police officer that the judge saw field sobriety tests just as observations not cloaked with any special reliability. He said they were designed many years ago with healthy 26 year old men in mind when driving with a 0.15 blood alcohol level could be unlawful, versus today’s 0.08. When a judge truly means that, the trial is going well for the defense.
Knowing this judge, I did not go into deep detail about items that he clearly already knew about. For instance, when the prosecutor went into great detail in rebuttal closing argument that my client had declined an ambulance and denied any physical problems, I figured the judge knew that in such a startling crash totalling a car, a driver does not always know if s/he is physically okay or confused. When the prosecutor harped on my client’s speeding as supporting the charge against him, the judge pointed out the many people coming regularly to court caught for high speed without any charges of DWI. From the judge’s comments during the prosecutor’s rebuttal closing, I felt closer and closer to victory.
The judge found my client not guilty. The thrill of this victory was as wonderful as my first one twenty-three years ago. Justice was done.