DUI: Representation Through Jury Trial
I’d like to talk about a gentleman I recently represented through jury trial. I’ll call him Ken. Ken was stopped in Santa Monica, California for driving under the influence and arrested by the California Highway Patrol. He was stopped because he made an illegal left turn from the middle of the street after being stopped at a green light for about 15 seconds. The CHP police car was equipped with a mobile audio-video recording system, which is a Dashcam that recorded the stop and the detention. What we’re able to see on the video is Ken who stopped at a green light and then made an illegal left turn before pulling over at the side of the road when the police officers activated their emergency lights. Ken was from the state of Nevada, he was driving his car from Nevada and he had a car full of friends who had all been out drinking and socializing. The CHP police officers involved conducted an investigation. They smelled the strong odor of alcohol coming from the car, so they took Ken out of the car where he could be isolated in order for them to determine where the smell of alcohol was coming from and to determine whether or not Ken was safe to drive. They took him off-camera, but we could still hear audio and they conducted a series of field sobriety tests on Ken to determine whether he was or was not safe to drive. After conducting three standardized field sobriety tests, the officer determined that he was, in fact, impaired for the purposes of driving.
The Motorist Was Unable to Perform Any of the Standardized Field Sobriety Test As per Instructions
They conducted the Horizontal Gaze Nystagmus test where they tested his eyes. They determined that his eyes were consistent with someone who is impaired by alcohol or another central nervous system depressant. They conducted a Walk and Turn test: Ken was unable to follow the instructions that the officer gave and showed significant clues which were consistent with somebody who was impaired for the purposes of driving. They conducted the One Leg Stand, which is the third standardized test where Ken was unable to successfully complete that test and showed clues of being impaired for the purposes of driving. The CHP officers offered Ken a preliminary alcohol screening test, a handheld breath test but Ken chose not to do that. He refused to submit to the breath test in the field. He was concerned that it may show that he was, in fact, impaired for the purposes of driving. They then arrested him. He was given the choice to submit a breath test at the Santa Monica Police Department or to go to the hospital for a blood test. He elected not to take a blood test and instead went to the police station for a breath test.
If an Officer Improperly Administers the Field Sobriety Tests Then It Can Be Used for Defense Purposes
However, once he got to the police station, he then refused to submit to a breath test, so the officers advised him of what the consequences would be. He still refused, and he was arrested and charged with driving under the influence and refusing to submit to a chemical test. The Santa Monica City Attorney’s Office brought charges against him with one count of driving under the influence with the refusal. We defended the case for about a year and negotiated with the Santa Monica City Attorney’s Office discussing the facts of the case, its strengths and weaknesses. We were looking for a reduction to a non-alcohol related offense because we didn’t feel that there was sufficient evidence to prove beyond a reasonable doubt that Ken was impaired for the purposes of driving. They did not have a chemical test. As for the field sobriety tests, we could not see them on camera, and there were some problems with the way the field sobriety tests were administered. The CHP officer who gave the test did not administer them 100% correctly by the script, and we had a debate on what the value of the tests were. At the end of the day, the Santa Monica City Attorney’s Office and I were unable to reach a resolution. I didn’t feel that it was appropriate to be an alcohol related charge, and they didn’t feel it would be appropriate to reduce it to a non-alcohol related charge. So, we went to trial, trial at the LAX Courthouse.
Expert Testimony Regarding the Administration of Field Sobriety Tests Are a Viable Defense in a DUI Case
It took us about five days to try the case. The first day was mostly settlement, negotiations. The second day was spent picking a jury, whittling down a pack of about 35 potential jurors to 12 jurors and one alternate. On the third day, we took testimony from a couple of witnesses. The first witness that the prosecution brought was a drug recognition evaluator or a drug recognition expert from the Santa Monica Police Department. We used the prosecution’s witness against themselves, showing how field sobriety tests should have been done compared to how they were actually done based on the audio recording and video recording that we had from the police car. They then called the CHP officer who did the investigation, and we were able to show more discrepancies and inaccuracies in the administration of the test. This raised more issues of reasonable doubt regarding whether Ken was or was not impaired from alcohol. We then brought a defense case where we had our own expert testify to explain what field sobriety tests are, what they’re good for and what they’re not good for. And we submitted the case to the jury for their consideration after an argument. The jury deliberated and came back the next day to continue deliberation.
The Jury Could Not Be Convinced of Finding the Defendant Guilty Beyond a Reasonable Doubt
After over eight hours of deliberating, the jury sent a note back that they were hopelessly deadlocked. The judge questioned the jurors, discussed with them the deliberation process and it was determined that the jury was unable to reach a unanimous verdict with a significant portion of the jurors believing that Ken was not guilty of the charges. The judge then declared a mistrial, and the prosecution was unable to get a conviction for driving under the influence. So, after a year of litigating and arguing with the City Attorneys, we were able to get some vindication by 12 people from the community who proved to the City Attorney’s Office that they could not prove their case that Ken was impaired from alcohol beyond a reasonable doubt. That was a wonderful victory after a long, hard battle.
DUI: A 65-Year-Old Driver
I want to tell you about another case, one that ultimately resulted in a successful outcome. This success came on the courthouse steps right before trial. This was Rick’s case. Rick was actually stopped by Los Angeles Police Department for driving without his headlights on. Rick was about 65 years old, and he agreed to do field sobriety tests as well as a breath test in the field.
The LAPD had assigned a DUI taskforce to this area, and the saturation patrols stopped him for driving without the headlights on. Rick was administered the full series of field sobriety tests: he was asked to walk the line, touch the nose, follow the pen, etc.
After administering the field sobriety tests, the officers formed the opinion that Rick was impaired for purposes of driving. They requested that he agree to a preliminary alcohol screening test. Rick agreed.
Two DUI Charges within 10 Years
Rick blew into the breath test machine, and the machine read a 0.18, which was more than twice the legal limit. Rick was arrested for driving under the influence, and he was charged with a DUI for driving under the influence of alcohol and/or drugs, and charged with driving with a 0.08 or above.
He was also charged with having had a prior DUI within the last ten years, making it a second time DUI. It was also the second DUI for Rick within a ten year period.
Our office was retained, and we immediately went to work contacting the Department of Motor Vehicles to demand a hearing within the ten day period allowed. We scheduled that hearing and got him a new temporary drivers license. Handling the DMV hearing early was the key for getting a successful resolution to the case in the long run.
Having an Attorney to Defend the License Suspension at the DMV Hearing Can Uncover Crucial Evidence to Defend the Criminal Component of a DUI Charge
With the Department of Motor Vehicles, we actually subpoenaed the investigating officer to the DMV. This gave us an opportunity to get the officer under oath and cross examine him regarding his complete investigation in this case.
What we were able to develop at the hearing was that the officers lacked the proper training to properly administer the preliminary alcohol screening device. They were proven to not have received the paperwork, classroom training, and testing necessary to be qualified to use this relatively new breath testing instrument that the Los Angeles Police Department had in their possession. This was one of the keys to getting a good resolution at the end of the case.
Showing the Prosecution a Weakness in Their Case Results in a Favorable Plea Bargain to a Non-Alcohol Related Offense
Through the court process, we were able to look into the officers’ personnel file by filing a series of motions with the court and the City Attorney’s Office. We were able to find out that the investigating officer had a history of complaints against him. Some very trustworthy and reliable witnesses were actually located who were willing to come to court to testify at the time of trial.
When we arrived on the trial day, we had impeachment evidence to show that not only was the officer not properly trained on the breath testing equipment but that he also had a history of trustworthiness issues in the community.
As Originally Charged, a Second DUI Would Have Entailed a Jail Sentence
When we brought these issues to light with the city attorney who was prosecuting the case, they realized that they would have significant difficulties in obtaining a conviction. A settlement was agreed to where Rick would not be convicted of a DUI or even a reckless driving; instead, the charges would be reduced to a non-alcohol related offense that would result in no jail time. This was extremely positive, as Rick would have faced mandatory jail time when the case was originally filed.
Even on a second time DUI where the city attorney is looking for significant jail time, if the case is strongly defended and we are able to find information regarding the officer’s training and the officer’s trustworthiness and credibility, cases that may look like a lot of jail time in the beginning turn into no jail and no DUI conviction at the end of the day.
A Strong Defense Is Key to a Favorable Outcome with DUI Charges
Cases can be won even without going through a jury verdict—but they must be defended tirelessly.
Felony-Level DUI – Sherry’s Story
Sherry was driving from work, and she was driving on surface streets. She was a little distracted and was unfortunately involved in an accident. She clipped the mirror on a parked car, and then she accidentally bumped the car in front of her.
An Accident Can Enhance DUI Charges
Sherry stopped and exchanged information with the driver of the car that she had bumped. Her own car was damaged to the point where it needed to be towed, so she called her husband who came to pick her up.
Sherry’s husband brought all of the insurance information to exchange with the other individual that was involved in the accident. They exchanged the information, and Sherry went home. In regards to the first accident where the mirror had been clipped, Sherry did not even know what had happened, and there was nobody there to exchange information with.
Sherry went home and was getting ready for dinner when there was a knock at the door. When she opened the door, it was the Los Angeles Police Department. Sherry was actually asked to step out of the house and was given a series of field sobriety tests and a breath test.
Felony-Level DUI Charges
Sherry was arrested for driving under the influence, and she was actually arrested for felony DUI because the person that she had bumped from behind claimed that Sherry was impaired for purposes of driving. This lady reported that she was injured as a result of the accident and that Sherry appeared to be impaired and smelled of alcohol. That was found to be a DUI with injury and therefore filed as a felony.
The Importance of Retaining an Attorney As Soon As Possible Following a DUI Charge
Sherry had to post bail to get out of jail. She retained my office to represent her. We immediately got to work, not only at the scene examining and documenting it but also by getting in touch with the District Attorney’s Office, the insurance companies, and the LAPD who had done the investigation.
Did This Case Warrant Felony Charges?
After consulting with us and reviewing the case, the District Attorney’s Office, agreed that the injuries were not severe enough to be filed as a felony. The District Attorney rejected the case and sent it over to the City Attorney’s Office, which handles all misdemeanor matters that happen in the city of Los Angeles.
Without an Attorney, Some Charges Can Have Very Serious Consequences
The city attorney reviewed the case, and we contacted them and discussed the case with them. It was agreed by the city attorney in our office that although the victim in the case claimed to notice impairment from alcohol (trouble standing) and the odor of alcohol, Sherry’s supposed impairment was untenable. Almost two hours had elapsed before my client was arrested at home where she could have something to drink. These factors would make it nearly impossible for the Los Angeles City Attorney’s Office to get a conviction for driving under the influence.
This is because they could not prove beyond a reasonable doubt that at the time the driving took place Sherry was impaired or she was at 0.08 or above.
Hit and Run Charges Are Considered a Crime of Moral Turpitude
The City Attorney’s Office agreed to reject the DUI charges. However, they felt that there was a hit and run where the mirror was clipped and driver information was not exchanged. The case did go forward. Although the DUI police report was there and the felony and misdemeanor charges that were originally there were rejected, the hit and run charges, which are considered a crime of moral turpitude, were filed. After attempting to settle and negotiate a reduction in charge, we set the case for trial.
Once the case was set for trial, the case went out to a trial judge, and we got to actually meet the witnesses, or “victims”, that were involved in the hit and run case. After talking with the victims, we were actually able to work out what’s called a “civil compromise”. This is where a small amount of money was paid to the victim for the broken mirror and time taken off of work. The case was civilly compromised. At the end, the charges were actually dismissed.
Sherry was originally charged with felony DUI causing injury; it took us about six or eight months to resolve the case completely. The felony charges were never filed, the misdemeanor charges for DUI were never filed, and the hit and run charges were actually dismissed in the interest of justice.
In Sherry’s case, what looked like a state prison case at the beginning ended up being a complete dismissal of all charges.
DUI Case Study: Single Car Accident, DUI with a Hit and Run Outcome: All Charges Dismissed. Facts
The California Highway Patrol (CHP) investigated a single car accident where the driver fled the scene after crashing into the center median and spinning off the freeway down a dirt hill and into a sound barrier/retaining wall totaling his car. The CHP found our client walking down the freeway’s shoulder a short time after the accident. He was reported to appear dazed, confused and impaired.
Although the CHP officers did not see the traffic collision, their investigation was able to establish that our client was the driver of the car and that he had left the scene improperly.
In the course of the CHP investigation, they established that our client’s car was recently driven (warm engine, witness statements) and that there was only one occupant in the car (air bag deployment, seat positions, door positions and damage). In addition to the car being registered to our client, his driver’s license was found in the car. Our client was found walking on the same freeway, not far from the totaled car, with injuries consistent with being the driver of the totaled car. He also had the signs and symptoms of someone who was driving under the influence.
Defense Team Investigation
Our office immediately went to work investigating the case. In order to get the best outcome, we looked into all possible issues. What we were able to show was a lack of evidence to prove DUI or hit and run.
When we looked into the DUI issues, we were able to show the DA’s office that they would not be able to prove impairment from alcohol or drugs. We did not have any witnesses who actually saw the driving. Without a “driving pattern” there was no evidence of bad or impaired driving. Without officers on the scene of the accident, there were no field sobriety tests done. Even if tests had been done, the effects of the accident could render the results of any field sobriety tests unreliable.
Our client was not found walking on the freeway for more than an hour. The science showed that our client’s blood alcohol level was not the same an hour after the accident.
The hit and run allegations related to damage to the freeway and retaining wall. This allegation too was proven to be misleading or false. Although our client’s car was totaled, it did not do any damage to the freeway or retaining wall. Our office’s investigation and the Department of Transportation’s investigation (launched at our request) showed no actual damage to any property. With no damage, there would be no billing and no hit and run.
With the District Attorney’s Office unable to prove that our client was driving beyond a reasonable doubt and that at the time he was driving he was impaired and/or a 0.08% BAC or above, they had no choice but to reject the case and not file charges on the DUI.
Dismissal of the Hit and Run
After we were able to prove that no damage was done, the District Attorney’s Office should have dismissed the case. However, with all that had transpired, they elected to move forward with the prosecution.
We filed legal motions showing the deficiencies in the District Attorney’s case, proving that our client was not guilty of the charges. After a contested hearing where both the prosecutor and our office were given an opportunity to argue, the judge agreed with us and the case was dismissed.
Why a DUI and Hit and Run Defense Attorney Is So Important
It takes special knowledge and skill as well as dedication to get these kinds of results. This case took us over nine months to win. The knowledge and experience we have with the science of alcohol and its affects on the human body was key in this case. Without a good understanding of breath testing, police procedures, and the overall science of a DUI case, we would not have been able to get this result.
The other half of this case was putting in the time that was required: the time in court, the time with our client, the time with the Department of Transportation, and the time to draft the legal motions necessary to bring the case to its conclusion.
No matter how bad a case may sound at first, a knowledgeable, skilled and diligent defense attorney can make a difference. In this case it made all the difference in the world for our client.
DUI Case Study #1
Client is speeding down the surface street at 75 mph in a 35 mph zone. CHP pulls him over, and Client admits to drinking eight beers and feeling the effects of the alcohol. Client fails all of the field sobriety tests and blows a .12/.12 standing outside of the car. At the police station, he blows a .12/.13.With my representation, Client is acquitted, found not guilty of all charges. The key to winning this case was having an honest police officer, legal and factual research, and a good cross examination of the officer. Not all cops are honest, but when they are, you can get answers that show that the government does not always have all of the information as to what really happened and that cases cannot always be proven beyond all reasonable doubt. We were able to show that the officer made a lot of mistakes in his investigation and that he had large gaps in his memory of the arrest. We showed that our client displayed no driving signs of impairment, that the field sobriety tests were in fact inconclusive, that the eight beers had been consumed over a very long period of time, that the officer had switched the answers to questions, and that our client had never admitted that he felt impaired. The breath testing instruments were discredited due to the way the tests were given, errors in the equipment, crime lab standards (or lack of standards) and the range of accuracy of the instrument. In total, it was not that our client was “not guilty”, but that the prosecution could not prove it.
Case Study #2
Client, on police car dashboard camera video, runs a stop sign cutting off the cops. Client then admits to having been drinking all day. Client has an open beer in the back seat cup-holder and proceeds to fail all of the field sobriety tests. Client takes a breath test at the police station with a reading of a .20/.19.With my representation, a jury deadlocked with seven votes for not guilty. The key to winning this case was proving that the police officer was dishonest and had falsified his report, changed his testimony, and improperly administered the breath test. When it came to the .20 breath test results, we were able to show that the instrument used had a history of mechanical problems and a lack of service records; therefore, the crime lab could not explain the history of errors discovered.
Case Study #3
Client passed out in his car in the middle of the street with the engine running and part of six pack of beer in his lap. With my representation, the case was dismissed after a jury trial. The key to winning this case was to go to trial and make the prosecution prove their case, which they were unable to do. Although our client was, in fact, drunk, he was not driving. We were able to show that there was reasonable doubt as to whether he was in the middle of the street or near the curb. We were able to show even with the beer in the car that there was no way to know our client’s actual blood alcohol level at the time of driving. The prosecution could not prove the time when the driving was to have taken place. With all of these questions, a jury could not convict, and the prosecution dismissed all charges.
Case Study #4
A big rig driver with a blood alcohol level of .11 was stopped for swerving all over the road. With my representation, the case was dismissed based on an illegal search (and factual finding of innocence). The key to winning this case was to fight on legal and factual grounds. We brought a motion to exclude or throw out evidence because of an illegal search. We cross examined the officer and showed a judge that the officer had, in fact, conducted an illegal search of our client’s truck without a warrant. It was what was found in the truck that had ultimately led to the DUI investigation and arrest. When the judge agreed that there had been an illegal search, all of the field sobriety tests and chemical testing was thrown out, and the prosecution was left with no evidence. The judge dismissed the case.