Recently, I was successful in suppressing a DWI client’s arrest, which will lead to the dismissal of the charge, and they manner in which the case went down has me thinking a lot on the work I do and premium I charge for sed work.
Now, let me start off by saying, I (hopefully) don’t have a big head about what I do. There are plenty of talented DWI attorneys out there, some smarter than I am. But there is a very distinctive divide between those who have dedicated their life to criminal defense, and those that dabble in it.
So, in this case, several things occurred with the Officer’s testimony that, I feel, a less experienced/prepared Defense attorney would have missed, and therefore, would have led to a conviction, instead of a dismissal. In my 8 years of practicing law, I have learned a lot, but no area more then DWI Defense. I love it. It fascinates me. The intricacies, the case law, the various ways to challenge them, all make for a very interesting area of practice. As a Wake County DWI Attorney, I have come, not only to learn the finite details of DWI Defense, but also the procedures of a trial, and most importantly, the Judge’s I argue in front of. All of this, from understanding the law, the case law, the various arguments, and those you are making them in front of came in play in the case, and was the big difference in the outcome. Let me explain.
In this case, my client was stopped for a fender-bender on I-40 during stop-and-go traffic. While this was argued by the State as negligent driving (this is important) it’s not so tied to DWI as say, Failure to Maintain Lane Control, but not as benign as say a registration violation or a little speeding ticket. The officer that was investigating initially did not smell an odor of alcohol from my client, but eventually said he did because “I guess the wind changed” (this, too, is important). My client admitted to drinking approximately 5 and ½ hours earlier. The Officer had my client provide two Portable Breath Test samples (2 are required for the officer to testify whether the results are ‘positive or negative for the presence of alcohol’) of which his notes indicate was positive. He had my client perform the battery of Standardized Field Sobriety Tests, of which my client demonstrated 6 of 6 clues on the HGN (Horizinatal Gaze Nystagmus) test, 1 of 8 clues on the Walk-and-turn, and 0 of 4 on the Walk and Turn. Now, the Judge I was in front of has persuaded by the argument (and there is some case law that supports this) that an odor of alcohol, along with negligent driving is enough for Probable Cause. Additionally, one of the more recent case laws on P.C. states that, even without negligent driving, 5 of 6 clues on the HGN test is enough (there’s A LOT of debate on this case and how persuasive it should be). So, you can see, I’m starting in a hole.
Now, I first realized, and argued, that the results from the PBT should be suppressed because, while the officer did obtain two samples, it was highly likely that my client had dip in his mouth for the first one (officer had him remove it after the first test was administered) which tainted its results and demonstrated that the officer did not follow the required step of ensuring there is nothing in the Driver’s mouth. At the close of my argument, the Judge seemed to indicate he may accept the result of the second test because it was after the dip was removed, but I correctly pointed out that the guidelines specifically require TWO subsequent samples, and only when a Driver refuses to provide a second sample can the officer testify to the results of a single test, so my objection was sustained (i.e. I won my argument and therefore that was no ‘machine’ to confirm the odor of alcohol).
Next, the officer began testifying about the HGN test and how he conducted it. It became apparent very fast that this officer was not familiar with the guidelines set out by the National Highway Traffic Safety Administration (NHTSA for short) as he should of and of which I am very versed in. I quickly identified where he failed to list 2 of 3 medical rule-out steps that are required, that he failed to hold the stimulus at the appropriate distance, that he moved the stimulus during the test way too fast and failed to hold the stimulus at a certain position for one of the test for the amount of time required by NHTSA. All of this went to the weight of the ‘6 of 6 clues’ he claimed he saw and drastically undermined the evidence the State argued against my client.
Last, I was able to demonstrate that the manner in which he conducted the other two tests was not to NHTSA standards either. Specifically, he failed to confirm my client understood the instructions before asking him to start the test. Additionally, the one clue he claimed he saw on the Walk-and-Turn test was that my client stepped out of the starting position, when, in fact, the officer failed to instruction my client to remain in the position until told to move (as is required by NHTSA).
So, this went from a case that looked not great on paper, to a winnable case very fast. Without the PBT results, the State only had an odor of alcohol ‘because of a breeze’ which was never confirmed to come from my clients breath. I was also able to discredit the only clues the officer claimed to have showing my client was impaired.
At several different places, the case was still winnable by the State. Had I not caught the problem with the PBT, the results would have come in and overcome the issue with the odor of alcohol. Additionally, if the HGN clues had come in unchallenged, the Judge would likely have used it to find in favor of the State. So, I say all of this to say, a good DWI attorney is expensive, but for good reason. Being able to correctly identify problems with the State’s case, during trial, is only really done by an experienced, learned professional in this field, and the kind of attorney you should be seeking if you have gotten a DWI.