What got you into DUI defense?
“I used to have a more general criminal defense practice. I would handle DUI cases, but I’d also take on every other type of criminal case, from petty theft to murder. The thing that struck me about DUI cases is that they were totally different than any other type of criminal case. The system is more unfair to those accused of DUI than any other kind of case.”
How so?
“Most criminal cases turn on the facts as being true or not. In a drug case, either the defendant possessed the drugs, or he didn’t. In a murder case, either the defendant pulled the trigger, or he didn’t. You have a dead body. There’s not usually much question of how he got that way; the only question is whether your client pulled the trigger or not. In a theft case, either the defendant stole the stuff or he didn’t. A DUI case is totally different. It is based entirely on the officer’s opinion. It is the officer’s opinion that the person was under the influence based on such silly things as the Field Sobriety Tests, which aren’t really tests at all. And my experience is that when I thoroughly press these officers on the basis for their opinions, they are not well-founded. I saw people getting railroaded based on a poorly-trained officer’s lousy opinions, and I’ve dedicated myself to turning that around, one client at a time.”
Why are the Field Sobriety Tests not really tests?
“Look, when we went to school as kids, we had tests. We received the material in advance, the teachers told us what to study. We were told when the tests were going to happen. We all took those tests under exactly the same conditions, in a familiar place, with good lighting and without distractions. There weren’t any guns in the classroom, or cars whizzing by. There were objective criteria used to score those tests. With Field Sobriety Tests, it is totally different. On Field Sobriety Tests, the person tested gets no advance notice of what will be required. Sometimes the conditions are good, |
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like a flat surface with good lighting, but more often than not they are in lousy conditions, on slanted streets, poorly lit, with cars whizzing by. Can you imagine how nervous the person is? Especially if you know you’ve had something to drink, and now you are out of your car, on the side of the road, in front of this person with a badge, and a gun, and the flashing lights of the police car? I was pulled over for a speeding ticket about a month ago, middle of the day. I hadn’t had a thing to drink, and I spend my life grilling cops, but my heart was thumping out of my chest!”
Probably because you grill all those cops. Didn’t you just talk your way out of it?
“I did. But that’s not the point! The point is that the anxiety level of someone being subjected to a roadside DUI investigation is just off the charts. And, to make matters worse, when the officer is conducting these tests, they are not being objectively measured. |
Most of the time, there is no videotape so that we can all look at the person’s performance. It is just what the officer jotted down, usually on his or her hand, that later gets put into a report and parroted back to the jury as if it were gospel. That’s just one of the frightening aspects of these so-called ‘investigations.’ And, when I get done cross-examining these officers on the stand, what we end up learning is that even where the subject does 90% of the tests correctly, the officer’s ‘opinion’ is that the person still failed the tests. Schools may have changed a bit since I was a kid, but I think 90% should still be a passing score. But, since these officers aren’t trained to assign a score, they still inevitably reach the conclusion that…”
The person failed?
“Exactly. Now you are starting to understand what drives me. I think this is incredibly, and unacceptably, unfair.” |
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