Saturday, April 21, 2007

Interesting DWI case

I had a case some time ago where my client had been arrested for DWI. I reviewed a document I refer to as "The Green Sheet." This, technically, is what's known as a DWI Bill of Particulars and Supporting Deposition. Partial images of each from this case are below. I've intentionally omitted my client's name and the name of the Trooper (I have met the Trooper many times and like him, but even if I didn't like him it would be wise to leave his name out of it).

Note: If you click on the images you will see a larger version than what you will see on this blog. You may want to download the images to your computer and then zoom in with whatever image software you like to use.

First, from the top of the green sheet, is a part describing what my client allegedly did. Most notably, it asserts that my client had a BAC of 0.13. The per se limit for DWI is 0.08, so this would be well into the illegal range.

Next is a larger portion of the document. What's most interesting here is Section 6. There are a lot of blanks. At the bottom, time of test is blank. Location of test indicates State Police Albany. Witness to test is also blank. On the upper right the BAC is blank. It does indicate the unit they used to do the test, but it appears that either no test was done, or something was wrong with the machine. I should note that there is no indication my client refused the test.

I am guessing, and it's only a guess, that the 0.13 BAC reported in the first image comes from the breath screening test done at the arrest scene (at the bottom of Section 4). Those tests are considered unreliable by the courts and are not admissible in a trial.

So this is an example of a great DWI case to fight. Among other things, since there's no valid breath test, the client does not get suspended while the case is pending. Even a difficult DA's office is probably going to agree to take a case like this out of alcohol and reduce it to something like a speeding ticket.

This brings us to one of the frustrations of being a defense lawyer. The client just wanted the reduction to DWAI.
We had a great case to fight, one of the best I've seen to date. I normally do not try to talk my clients into what to do, but in this case I did push for the fight. I think the client just wanted it to be over.
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