Friday, October 09, 2009

DWI Story: Listening to the Radio While Intoxicated

For a new kick, I'm starting a series of stories about past cases I've handled. This one's a DWI story, from a few years ago. As part of my pattern for stories about cases, some elements will be fictionalized mainly to protect the client. In this case there was a trial, so the truth is really a matter of public record, though practically it would be difficult to find the record if you don't know where to look.

Client was accused of DWI. His BAC (blood-alcohol content) was reported to be 0.32, four times the legal limit. This occurred before the Aggravated DWI law, so it was only the regular DWI charges under 1192(2) and 1192(3). Due to the high BAC, the prosecutor would not agree to a reduction to DWAI. I would not have recommended my client take that deal, but he would have if it had been offered because he did not want the fight.

I would not have recommended it because he was not guilty. The client had an argument with his teen daughter. She wanted him to drive him somewhere. He refused because he was too drunk. To get away from the argument, he went out to the parking lot, got in his car, started it, and turned on the radio. He did not move the car. He was not going anywhere in the car and hadn't driven it in hours. At the time the police arrived, his wife was sitting in the back seat with the door open.

A neighbor heard the argument and called the police. An officer arrived at the scene, and went to the apartment. The daughter answered the door and said there was no problem. Asked where her parents were, she said they were outside.

The officer then went outside, met up with another officer arriving at the scene, and they went over to the client's car. Seeing that the car was running and that he was intoxicated (we did not dispute that), they arrested him for DWI. Yes, my client was arrested for listening to the radio while intoxicated.

So we fought the case. The first major step was the suppression hearing. This is where the prosecution has to show that the stop and arrest were proper. If not, the evidence is suppressed, and that makes it hard to prove anything.

The big issue is whether the police had "reasonable suspicion" for the stop. Well, actually, there's even the question of whether this was a stop. The car wasn't moving.

The police clearly had a reason to come to the door of the apartment - a civilian complaint. But once they talked to the daughter, who said everything was fine, what was the reason for approaching a car sitting in a parking lot? Now I guess if it wasn't a traffic stop, then maybe you don't need reasonable suspicion for a stop. But if it's not a stop, then how can you say the defendant was driving?

But before we get to that, there was another problem. The time for the hearing arrived and there was no police officer. After about 15 minutes the prosecutor said he was on his way. He showed up a half-hour later in an undershirt and gym shorts, looking like he'd just woken up. The hearing went ahead. The officer - I'll call him Officer A - testified that he arrived, went to the apartment, talked to the girl, and Officer B arrived as A was walking out to the parking lot.

After the hearing I argued that it was either a traffic stop without reasonable suspicion, or if it wasn't a stop that he wasn't driving and then the arrest was without probable cause. Some judges find such logic irrelevant to their main job of doing whatever the prosecutor and police want, so suppression was denied. I'm being a little cynical on that. I like this judge very much for a variety of reasons, but I did not agree with the decision.

So we went to trial. It'd take too long to tell the whole trial story, so I'll just hit some highlights. First, my associate knew one of the jurors - said that the juror got hammered at a wedding and then drove home. That's the kind of juror the defense wants. The juror did disclose that he knew my associate.

Second, Officer B testified that he went to the apartment, talked to the girl, and Officer A arrived as B was walking out to the parking lot. They did not get their stories straight. Also, B testified that my client was walking out as he was walking to the apartment. One juror later told me that he thought it was significant B did not notice the client was intoxicated while passing him in the hallway. I didn't see that as important, but that's one of the things about juries - you never know what will grab their attention.

Third, my client and his wife testified well. The prosecutor's cross-examination did not go well. This is a very difficult thing for a prosecutor in a criminal case. They have no idea what the defendant will say and have difficulty preparing.

In a civil case, like our personal injury cases, both sides testify at a deposition well before trial. So the lawyers all know what everyone's story is. When you cross-examine someone, you know the answers to your questions before you ask them. There's a "rule" about cross - never ask a question if you don't know the answer. Much tougher for a prosecutor who doesn't know the defendant's story.

Two or three times during cross, the prosecutor asked what he thought was a winning question and each time the client nailed the answer. He'd explain what happened and the jurors nodded their heads like what he'd said made perfect sense (because he did make perfect sense - helps to have a good client).

Throughout the trial I focused on one thing with the jury - my client was accused of DRIVING while intoxicated. He wasn't driving. It is true that under NY law judges say you can technically be guilty. Judges are one thing, but it's pretty heavy lifting for a prosecutor to sell that one to a jury.

The jury came back with "not guilty" pretty quickly.

I just remembered one of the funnier moments in the trial. During jury selection there was an older man with a strong European accent. The prosecutor started asking him questions and the man said: "You're not going to like me. He (pointing at me) gonna like me." He went on to explain that he did not like the DWI laws. The prosecutor asked if he drinks and drives. "Of course." He provided details too. Asked about the holidays, he said: "I go to family. I have 5 or 6 drinks, put the kids in the car, and drive home. No problem." I wish I could remember that better because there was more and it was hilarious. The whole courtroom was laughing. The prosecutor decided to exclude him from the jury. I consented.

Oh, and one more detail. I was a little worried about one thing. I like trials where the jury is likely to identify with my client. Here it was an all-white and mostly blue-collar jury. My client was foreign, from a continent that is often accused of stealing blue-collar jobs, and he had a strong accent. I'm pleased to report the jury seemed to have no problem identifying with him.

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