Better And Better

If you don't draw yours, I won't draw mine. A police officer, working in the small town that he lives in, focusing on family and shooting and coffee, and occasionally putting some people in jail.

Tuesday, September 01, 2015

DWI Trial

He had as good a defense as a man could ask for.

The defense attorney got a lot of stuff redacted from the trial: the drugs? Gone. (There was an ownership question, so we couldn't even mention them.) The passenger? Not to be mentioned.  Audio from the video? Muted. (On scene had been discussed the drugs, and the not-to-be-mentioned passenger.) 

Because of technical glitches, one of the three DVDs of the stop didn't work. 

I had made a typo on the PC affidavit, which made it into the text of the report. 

The defendant had refused to give blood, and I had shrugged and decided that my case was strong enough without it, so I didn't seek a blood draw warrant. 

In an interesting twist, the attorney really tried to nail me to the wall for NOT getting a warrant and taking his client's blood. I explained that, before 2007, I had NEVER gotten a warrant for someone's blood, and that I didn't like to bother judges unless I needed to. "It only takes, what, about 20 minutes, to do it?" the defense attorney asked. 

"Is that your experience? Because after hours, I tend to find that it takes longer, sir. In MY experience," I answered. 

The defense attorney really grilled me on Standardized Field Sobriety Tests. That guy knew his NHTSA manual, pretty well. Well, so did I. I guess I answered the questions about the tests fairly competently. Lord knows, I've been administering the tests long enough. He took me to task for presenting all nine steps out and back to the Walk And Turn Test, because the manual says to only demonstrate three, and then turn around and come back. To me, I was being MORE fair, and giving the defendant more of an example to follow, but he pressed the case (and, if I'm fair, made a good case) that by presenting the longer version of the example, I was making the defendant have to stand heel-to-toe for a longer time, thereby increasing the likelihood that he would lose his balance and stand normally. 

He asked me if it was "natural" or "unnatural" to stand like that for any period of time. I answered (perhaps a little impertinently) that, while it probably wasn't natural behavior, the question could be begged as to whether driving was in and of itself unnatural behavior. 

He grilled me hard about the videos. As well he should have. A the attorney for the defense, he should demand to know why a key piece of evidence was missing, and hold our --no, my-- feet to the fire for why I couldn't produce it. I answered honestly that I didn't know, and sure wished that I had it, for our case. (Honestly, he had to be cheering that it was not available, because the other two videos were quite damning.)  In fact, it was that missing video which probably gave him the best glint of hope for the trial. 

The jury returned in an hour and a half with a Guilty verdict. 

I shook the defense attorney's hand afterward. It turned out that he had represented a citizen who had sued my department and me a few years ago (I was eventually dismissed as a defendant.). I don't always wait to shake a defense attorney's hand. But he had stalwartly defended his client, and hadn't attempted to impugn my character while doing so. It was a spirited, honorable defense against a good (but not perfect) case. 

I hope the defendant finishes out his probation, clean. We don't need more guys in jail.

A lot of people --me included-- complain about how the government works. About how it unnecessarily oppresses the public. But in this case and many others, I have seen it made to account for why it charged a citizen with a crime. I have seen the government have to prove beyond a reasonable doubt that the crime was committed, by the defendant, during the time in question. That is due process. It is what we expect, but it is still a lot of work.

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At Wednesday, September 02, 2015 10:24:00 AM, Blogger Old NFO said...

Interesting post, and one wonders what happened to the other CD... Glad you withstood the questioning and were successful in helping get the guilty verdict. And good for the Attorney for not making it personal.

At Wednesday, September 02, 2015 8:00:00 PM, Anonymous Alien said...

If the third DVD was available and operable and did show what it was purported to show, if the blood draw warrant was obtained and the blood analyzed, if only the three required steps had been performed instead of the nine offered, if there had been no typo on the affidavit, do you think the attorney would have chosen to not pursue the case in court and seek other avenues of benefit for his client instead?

I'm also curious about the passenger - would that passenger not have been subject to subpoena as a witness?

At Thursday, September 03, 2015 12:26:00 AM, Anonymous KevinM said...

So... how are not your field sobriety tests total bs?
I have distal neuropathy and couldn't pass most of the tests I've seen.
Seems like a wanton persecution... of the clumsy.

At Friday, September 04, 2015 5:39:00 PM, Blogger Matt G said...

Great question, Alien. The answer is... possibly not?
I think that he decided to fight the DWI when he managed to get the drugs excluded, and realized: "they have mediocre video, and we can get the audio excluded because they talk about the drugs! Score!" Frankly, it was closer than the vast majority of cases. The attorney probably expected to be able to grandstand to the jury by showing that the officer was incompetent, and that works for nervous cops who don't testify confidently, and get buffaloed into agreeing with leading traps that the defendant carefully composed weeks before.

The vast majority of my DWI cases do NOT go to trial. This was the first one in over two years. (My last one didn't actually go to trial-- it went to a suppression hearing, and when the stop wasn't suppressed, the defendant pled out.)

The defense very capably eliminated the passenger as a witness because she was in on the drugs, and the prosecution didn't want to use her because she would have been uncooperative.

At Thursday, September 10, 2015 5:47:00 PM, Blogger Matt G said...


Look up Horizontal Gaze Nystagmus. It's a neurological examination that has nothing whatever to do with coordination.
Also, look up Divided Attention Tests. The tests aren't designed to test coordination; they're designed to test a person's ability to perform a physical act while thinking about something else... as one does while driving.
I've got 20 years worth of training and experience in this stuff, and have personally observed the validity of the tests. This guy was a candidate, and was intoxicated.


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