Tuesday, November 15, 2005

DWI cases

I seem to be getting more DWI cases lately. I think my website has been doing better, but I'm not sure if that explains it all.

I've got three cases pending now where we're actually fighting the charges. In most cases you encourage your clients to take a deal. In two of my cases the clients have DUI charges that are recent enough that any regular plea deal (to DWI or DWAI) would mean loss of a drivers license for a significant period of time. And in all three, we have good cases to put to trial.

In one, the defendant was pulled over for running a stop sign in a parking lot. Problem for the prosecution is that V&T Law 1100(b) makes the stop sign law generally inapplicable in a parking lot. If the stop is invalid, the ensuing blood-alcohol test is thrown out and we win. Client blew a 0.09, which is at the bottom end of DWI. The prosecution's response to our motion was not impressive. They claimed that the stop was valid because of the defendant's "erratic driving". But the DWI bill of particulars has a checkbox for "erratic operation" and it is not checked off.

In another, the defendant passed 4 of 6 field sobriety tests. The Trooper gave him a breathalyzer anyway. He blew a 0.07, and is charged with DWAI. A DWAI case is harder for the prosecution. They must prove the defendant was impaired by the alcohol. For regular DWI (0.08 and above), simply proving the blood alcohol content is enough. In this case we can fight the admissibility of the breathalyzer itself and the question of impairment. We have at least one excellent witness to testify the defendant was not impaired, and then we have the defendant passing the field sobriety tests.

In the last case, the defendant's car broke down near his home. He walked into his apartment. The police came later (at least 40 minutes, maybe more -- I don't have the papers in front of me). Client blew a fairly high BAC (maybe 0.14, but I don't remember for sure). The problem for the prosecution here is that they can't prove what his blood alcohol was when he was in the car. I anticipate testimony that my client drank a substantial amount after he went into his apartment. This one will probably be the most interesting of the bunch.

The real goal in all of these is to persuade the DA to agree to a reduction that takes the case "out of alcohol", so it doesn't affect the defendant's license. The client will generally prefer the certainty of a deal to the risk of hearings and trial, even when they have a good case.
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