THE SIX KEY FACTORS IN A DRUNK DRIVING CASE

Factor One:  Did The Police Follow The Rules? | Factor Two: The Story of Your Day
Factor Three: The Driving | Factor Four: Your Behavior | Factor Five:  The Chemical Test | Factor Six: You!

Most people, including some lawyers who should know better, believe that if you are stopped for drunk driving and fail a breath or blood test, that you don’t have a chance to win.  Certainly, drunk driving cases are difficult to win.  In my twenty-six years as a trial lawyer I have fought and won many of them (and lost a few, too), including cases with very high blood or breath test results.  Winning a drunk driving case requires a careful investigation of all of the facts, not just the facts that the police have reported.  In order to analyze a case, I have developed what I call The Six Key Factors in a drunk driving case.  These are the factors that I consider in fighting a drunk driving case.

These factors cover the actual facts, not just the facts in the police reports. When a policeman makes a drunk driving (or any) arrest, he is required to fill out various reports detailing his observations.  In drunk driving cases these forms may be fill-in-the-blank, or they may be in the form of a narrative.  In almost all cases, the officers focus a few facts and ignore the rest.  For example, they may note that you stumbled in the “heel-to-toe” test, but they will fail to mention that you had no other difficulties in your balance.  So, winning a drunk driving case requires a careful review of The Six Factors.

A good lawyer does not merely review the police reports in order to analyze the case. A good lawyer investigates and knows that what is in the reports and what might be said in the courtroom are two very different things.

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Factor One: Did The Police Follow The Rules?

Whether or not you are guilty may be one of the least important factors in your case.  That's because of the exclusionary rule, a rule of law designed to protect the most important and precious of our civil liberties: the right to be free from unreasonable stops, seizure, search and arrest.  In a free society the police must operate under strict rules that prevent them from stopping and arresting you without a proper legal basis.  Too often, the police act on a mere hunch or suspicion, without adequate evidence.  When that happens, the evidence they get as a result of their unlawful behavior may not be used in court, even if it shows that you are guilty.

So, the first thing a good lawyer will do is a careful analysis of all of the facts that went into the police officer's decision to stop, question, test and arrest you.  A good lawyer will always take any opportunity to challenge the legality of the police decision to pull you over, make you do field sobriety tests, arrest you or make you take a chemical test.  Do not assume that just because you "flunked" a breath test, that the test result can be used against you; because, a good lawyer may be able to keep it out. 

The federal government has established a set of drunk driving investigation procedures called "National Highway Traffic Safety Administration Standardized Field Sobriety Testing."  Many, but not all police officers are trained in this procedure. This requires a three day course, with proficiency testing.  A good OWI DUI defense lawyer will be certified in standardized field sobriety testing.  In this way, he will be best able to pick apart the manner in which your case was investigated by the police.

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Factor Two: The Story of Your Day

Obviously, whether or not you are intoxicated depends on whether or not you have consumed an excessive amount of alcohol.  Therefore, the story of your day is very important, because it includes your alcohol consumption.  The details are important because the truth often lies in the smallest fact.

What did you eat? Where did you go? Where were you coming from?  Who were you with?  And yes, what did you have to drink?  This information is necessary to determine whether you were intoxicated, whether there are witnesses to support you or whether the chemical test result may be flawed.

For example, I once had a client who was arrested coming from his wife’s wake. He had crossed the centerline slightly while driving on a curve in a two-lane country road, and was stopped.  The police report contained the usual recitations: bloodshot eyes, slurred speech, poor balance, etc.  The story of my client’s day became critical.  He had been to the cemetery, and then to a memorial reception for his late wife.  He had eaten and drunk wine at the reception with his friends and relatives.  These people were available to testify that at no time did he appear to be intoxicated during the entire day and evening.  They were able to corroborate his moderate alcohol consumption, food intake  and sobriety.  My client not only became credible, but he became human and sympathetic.  Too often, decent people are portrayed in the courtroom as anti-social monsters, and a humanizing touch can be very helpful to level the playing field.  Obviously, if you were at a drunken biker’s party, you may not want to advertise those facts. But, even if you were socializing at a tavern, the people you were with, including the bartender, can be important witnesses.

Chemical tests of breath and blood can be flawed and unreliable. So if possible, it is important to locate any credible witnesses to document your actual alcohol consumption.  Be aware that this may be possible using charge card records, as well.

Likewise, alcohol hits harder on an empty stomach.  So if possible, it is important to document what you had to eat.

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Factor Three: The Driving.

Police will usually try to report in detail on the driving violations that led to the initial stop of your vehicle.  The prosecutor will argue that these violations are evidence of the impaired judgment and coordination of intoxication.  Of course, that it often not the case.  The police will often stop cars for slight or invalid cause.

Why were you stopped?  What was it about your driving or car that drew the attention of the police?  Was it a burnt out license plate light?  Was it speeding, three miles per hour over the limit?  Was it swerving and severe unsafe lane deviations?  Was there an accident?   Many times, people are arrested for drunk driving, when the initial stop was due to some factor unrelated to alcohol consumption.  Often times a stop occurs on some pretext, which has nothing to do with impaired driving.  Unfortunately, it is undeniably true that racial minorities are stopped far more often on such pretexts (Emerge magazine has called this “DWB,” or driving while black).  It can also be said that an old rusty car is a far more likely target of an unreasonable stop (this might be called “DWB,” or driving while broke).

Some driving may, at first blush, appear to be erratic, when in fact it is not.  For example, police like to stop people for “weaving within the lane.”  What does that mean?  As long as you stay in your lane, you are not weaving, right?  Another, similar pretext is for an unduly wide exit to a turn. In many situations, however, a wide exit from a turn is the only proper or safe maneuver, even if it crosses traffic lanes.

Every person who drives a car knows that most people drive about five miles per hour over the speed limit.  Low level speeding, or a similar traffic violation, may give the police the right to stop you, but it is definitely not evidence of intoxication.

Similarly, if you were in an accident, was it your fault?   It is critical to show that whatever driving errors you made were not the result of alcohol-related impairment.

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Factor Four: Your Behavior

Observation, and the lack of observation, of your behavior are crucial.  This includes your behavior from the moment you are stopped and first observed by the police, to the moment when the observations stop, usually when you leave the police station.

Police are trained to observe.  Yet in most drunk driving cases, their observations are limited to your driving and the field sobriety tests.  To properly analyze a drunk driving case, all of your behavior should be considered, from the first moment you were stopped.

The field sobriety tests, to put it bluntly, are unfair. A very high percentage of stone-cold sober people cannot successfully perform the field sobriety tests. Many trained police officers, when asked to demonstrate the tests in front of a jury, will fail (or cheat, e.g. keep their eyes open on the finger-to-nose test). Jurors who attempt to do these tests during deliberation will often fail.  So, it is important to consider all of your behavior, not just you field sobriety tests.

I will mention the most common field sobriety tests, but only in passing.  These are the one leg stand, walk-the-line, finger-to-nose and alphabet tests (there are other, less common tests, such as horizontal gaze nystagmus).  The United States Department of Transportation publishes various manuals on how these tests should be performed, as do many state and local police departments.  Nevertheless, it is common for the police to depart from proper test format, or to grade on irrelevant factors.  For example, a subject will be told to recite the alphabet clearly, with no mention made of speed of recitation, but will be marked as failing if the recitation is slow.  Another example would be to fail a subject who sways when performing the finger-to-nose test, even though the fingertip is touched correctly to the nose.  These tests are usually performed under the worst of circumstances: in poor lighting, uneven pavement, poor weather, in improper clothing, etc.  Further, a subject may be arrested for failing a single field sobriety test, after having passed a series of previous tests.  A skilled lawyer will be able to show the unfairness of the field sobriety tests and direct the jury’s attention to all of the defendant’s behavior consistent with sobriety.

The other standard observations that are made in virtually all drunk driving cases are bloodshot eyes, slurred speech and odor of alcohol.  Again, a skilled lawyer understands how to show a jury that these observations are often fabricated, exaggerated, inconclusive and taken out of context.  Bloodshot eyes, for example, may be due to contact lenses, cigarette fumes, fatigue or may be the subject’s normal appearance.  The police have usually no prior experience with a subject or a subject’s voice, so the subject’s normal tone or accent (especially in the Milwaukee or Chicago area) may sound slurred. Similarly, the odor of alcohol may indicate recent alcohol consumption, but cannot indicate the amount consumed.

It is necessary to show the jury the entire picture of your behavior, not just the police observations which are taken out of context.

Did you pull over promptly, safely and in a controlled manner when the police activated their lights and siren?  Were you able to produce your driver’s license without fumbling?  Were you able to get out of your car without difficulty?  Were you able to walk to the area where the field sobriety tests were performed without difficulty?  What were the weather and lighting conditions?  What were you wearing?  What was the state of the pavement?  Were you able to communicate your name, etc. to the officer without stumbling on your words?  Were you able to get in and out of the squad car without difficulty? Were you able to walk into the police station without stumbling?

Most of the time, police reports are silent on all observations except for the field sobriety tests.  Since police are trained to write all relevant facts in their reports, their credibility will be subject to devastating challenge if they add facts to their testimony, which is not in their reports.  So, if the reports are silent, it is safe to say that none of your behavior except for the (unfair) field sobriety tests evidenced any intoxication.

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Factor Five: The Chemical Test

This little primer is not intended to be a manual of how to handle a drunk driving case, much less a manual on the technology and pitfalls of breath and blood tests.  The technology has improved dramatically in the last few years.  But like all technology, it is only as good as the people who operate it.

There are three main types of breath tests in operation in the USA:

The Breathalyzer,

The Intoxilyzer and

The Intoximeter.

The most famous of the three, the Breathalyzer, is largely obsolete.  Most police departments use the latter two machines.

These machines are subject to error if not properly operated.  One of the most common errors is mouth alcohol contamination (sometimes called belch contamination, giving rise to the term, “belch defense”).  These machines are designed to test the air in a subject’s lungs.  However, before the air can be tested, it must pass through the subject’s mouth.  And who knows what is in the subject’s mouth?  If the subject belched before the test, which can be a silent process, the mouth may contain relatively undiluted alcohol from the stomach.  Hence the breath sample will be contaminated and the machine will give a false high reading.  These machines are designed to detect mouth alcohol contamination: but the detection devices are fallible, and the manufacturers warn police to not rely on the machine to detect mouth alcohol contamination.

Rather, the police are supposed to perform a twenty-minute observation of the subject prior to the test, to certify that the subject did not smoke, drink, belch, etc. prior to the test. Needless to say, these observations periods are often very lax, if they occur at all.

A skilled attorney can often demonstrate the failure of the police to perform a proper observation period, by making the police testify as to the exact timing all the completion of their various tasks, including the police reports, setting up the breath test machine, communications with other officers, etc.

That is just one example of the many different kinds of errors to which breath, blood and urine testing are subject.  The important thing is to realize that these tests are flawed and fallible.  If you believe you were sober, but failed the test, there is a strong possibility that the test was false.  Detailed analysis and study of the testing process are a necessity in each individual case.

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Factor Six: You.

Your lawyer, more than any other skill that he must have, needs to be able to show the jury, the prosecutor and the judge that you are a decent, productive, likeable human being.

Since you’ve been charges with drunk driving, you must be an antisocial, sloppy, mean, nasty drunkard, right?

That’s what the prosecution wants the jury to believe.  And, from a practical point of view, that’s what they will believe unless you negate that impression by showing them that you are a nice, decent person.  You must let them know that you are not a monster, you are a human being.

For the most part, we choose the image that we convey to the world.  Our clothes, hairstyle, speech patterns, gait, etc., reveal the choices we have made in cultural identification.  We may be artistic individualists, and choose to appear that way, with tattoos, body piercing, iconoclastic hairstyles, etc.  There is certainly nothing wrong with this; but we must be aware that the jury who will judge us will also judge the message we convey by our appearance.

Whatever out path in life, our appearance will convey a message.  But, in a court case, it is important that the positive aspects of that message be emphasized.  It doesn't matter whether you dig ditches, play hard rock music, sell computers or do brain surgery, you have an important positive creative, productive life.  You have family that relies on you and needs you.  You give of yourself to society and your family.

Your lawyer needs to be able to communicate these things in court.

How?  This is done with your appearance, your posture, and every aspect of the way that your lawyer treats you, relates to you and speaks to you in court.  It is also done by the story of your life that your lawyer conveys on your behalf.  This is why the talent of your lawyer is so important, and why some lawyers are winners and other lawyers are not.

If the jury likes you, they will give you the benefit of the doubt; but if the jury dislikes you, they will simply find you guilty.  Juries are intelligent; they have a way of being able to smell deception.  I’m not saying that you should flimflam them with a false image-you don't need a false image.  The real you must shine through.

Remember my client, the nice hardworking guy, coming from his wife’s wake?  The jury gave him the benefit of the doubt.

Another example of a great client was the only woman in our state to own an automobile body shop.  She was a no smooth and slick type of lady; she was just a working-class woman who had made herself a success in a man’s world by her simple hard work. The jury believed her even though she had a breath test result of .17 (which was explained by organic solvent contamination of her blood through long-term exposure to industrial chemicals and paint; and, there was also a police videotape showing her sober demeanor).

One more example is the pretty young wife well into her eighth month of pregnancy.  Or, one last example is the eighty-three year retiree, who spent his days taking care of his invalid seventy-nine year-old wife.  The prosecutor had a difficult time explaining the field sobriety testing procedure for a gentleman who used a walker to get to the witness stand.

You don’t need to be a special case like these examples in order to be successful. Be yourself and be the kind of person that ordinary average people will want to believe.

I am a firm believer in the truth.  In order to win you may have to testify.  You will have to look the jurors in the eye and swear to them that you are innocent.  If you are lying, they will see it.  But, if you are honest your words will ring true, and they will see that, too.

If you and your lawyer adequately prepare and carefully consider the Six Key Factors of a drunk driving case, you will have a fighting chance.

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