Sample Defenses in
California DUI Cases
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Late last year, Mr. Client was arrested for driving under the influence of
alcohol and driving while his blood alcohol was in excess of .08 percent. I
think that such charges should never go unchallenged. They are very serious
in every way. Here’s his story:
Client was driving his mother’s car and arguably may have violated a minor
traffic law in its operation. LAPD officers stopped him. Client had been drinking
moderately and admitted as much to the officers. He complained of a nervous stomach
and other problems. He was directed (not asked, an important legal distinction)
to take certain field sobriety tests, which the cops testified he failed. He
was arrested for DUI, transported to a police station and asked to provide a
breath sample. He did so twice on a brand new machine, which was working well.
He blew a .16 and a .17 and was booked.
Upon examining Client’s medical records, we discovered that he had been
diagnosed with a gastro-esophageal reflux disease. His doctor would so testify.
We then consulted with a well-known blood alcohol analyst who told us that this
condition made Mr. Client a poor candidate for breath analysis, and that the
breath test should be ignored. He, too, said that he would testify to
this. Score one for the defense.
We did pre-trial motions to exclude the field sobriety tests (limited, but
not excluded) and to suppress all of the evidence as having been illegally
seized (no chance, but it made a legal record for an appeal had we lost the
trial).
Armed with our expert, and having limited the prosecution’s case, we appeared
for trial last month and picked a jury. Two prospective jurors said they didn’t
much like lawyers. Their presence on the jury actually changed our trial tactics.
We became like Columbo on television, dropping pens, bumbling a bit,
but making all our points with last moment “Oh, by the way, . . .” questions.
The prosecutor was a fairly typical lawyer.
The prosecution presented the two arresting cops and a criminalist. We presented
Mr. Client, his doctor, and our blood alcohol consultant. We argued forcefully
that the jury couldn’t trust the breath test, and that a minor violation
just doesn’t rise to the criminality of driving under the influence.
We proposed specially drafted jury instructions backed up by legal briefs,
and got the jury instructed on the law as we felt it should be explained. The
jury came in with not guilty verdicts to both charges. The Client was
happy. We liked it, too.
An unusual case? Absolutely not! Every client gets a high level of legal
service in our office. We do full preparation and give vigorous representation. Our
job is to clear you, and we do our job. Of course, that’s not a guarantee
of success. Call 1-866-DUI-MIKE to talk. We’re affordable, and we
provide a real bang for the buck.
A Strong Finish Without Trial
Ms. Client, a small attractive housewife, went out for dinner and had a glass
of wine with her meal. No other drinking. She was stopped on the way home by
police who were looking for somebody driving a “similar” car who was
also a small woman. The person they were looking for had just fled the scene
of an injury accident. The police officers noted that Ms. Client’s car
had no exterior damage at all. They further saw on closer inspection, before
they approached the driver, that the front license plate was attached to the
car, which was reportedly not attached on the suspect car.
Wishing “to clear up the matter,” the cops approached our client and
asked for her license and registration, which she produced. They asked her to
get out of the car, which she resisted. She had once been attacked by a man impersonating
a policeman and she asked why they needed her out of the car. They simply became
more demanding, insistent and began using what they called a “command voice.” To
you and me this might be called yelling at her.
She became more frightened and rolled up her window. The cops ordered her
out of the car. The cops noted the “strong odor of an alcoholic beverage” and
had her do field sobriety demonstrations. She was extremely nervous and upset
by this time, and could not concentrate on the required demonstrations. She did
not perform them to the satisfaction of the cops. They arrested her for DUI.
I moved to suppress all the evidence of everything which took place after
the original stop. My brief pointed out that the cops had no probable cause
to stop her car at all, that it was not identified as the perpetrator’s car from
the prior incident, but only looked “similar.” They further developed
that this was not the car as it had no exterior damage and had the front license
attached. Once they knew they were in the presence of the wrong car, they had
to let her go. Their desire to “clear up” the matter was simply an
unauthorized detention, followed by an illegal search and seizure (they seized
the observations of her condition, a sample of her breath, etc.)
The judge ordered all evidence suppressed, and dismissed the charges.
They Got the Wrong Guy
Mr. Client (not related to the above Mr. Client) was noticed, quite wasted,
changing a flat tire at the side of the freeway. His girlfriend had been driving
because he was in no condition to drive, and she had left to get help for him.
When the CHP rolled up, he thanked them for offering to help and handed one
of them a lug wrench. The officer noted the “strong odor of an alcoholic beverage” and
made him perform their so-called field sobriety tests, which are neither legitimate
tests nor designed to determine anyone’s level of sobriety. Mr. Client
performed the tests as well as he could, considering his drunken state, all
the time protesting that he had not driven the car to that location.
Of course, the officers ignored his explanations and arrested him for a DUI.
We made a motion to suppress the evidence on the ground that, since he was
not the driver, he should not be forced to take any tests. That motion was
denied and we began the trial. We picked a jury and let the prosecutor put
on her case. We got the cops to remember that he always said someone else was
driving. We produced his girlfriend who testified he was not driving, that
the tire blew out and she left for help. The jury came in Not Guilty on both
counts.
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