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Wednesday, January 6, 2010
By Michael Nichols
Categories: Drunk-Driving, OWI
ARREST
You awake in the drunk tank. Your head hurts. You didn’t sleep at all. Now what? The first thing to understand is that you are experiencing many emotions and will continue to feel those for a long time regardless of whether this is your first arrest until well after this matter is resolved. The officer’s investigation is targeted at trying to convince you that you are guilty. You are not guilty until and unless 1 of 3 things occurs: 1) the jury convicts you; 2) the judge convicts you or 3) you plead guilty. You are presumed innocent and you should maintain that plea of not guilty until and unless you are able to negotiate a result in the case that you can live with in exchange for giving up your right to a trial.
If you are reading this shortly after you were arrested, the best thing that you can do to help yourself is to retrace your steps on the day of arrest. Everything that you did, including what you had to eat, any unusual activities in which you engaged, how much you drank if anything and what medicines that you ingested for starters: all of this information may create a trail of breadcrumbs to a defense for you when there seems to be only a path to a guilty plea. If you decide to look for a lawyer to represent you, make sure that DUI/OWI defense is a major portion if not THE major portion of his or her practice.
BEFORE YOU MEET with the lawyer, you should assemble the following information to save you both some time and you some money and it will help the lawyer with his or her analysis:
- A written timeline of the events of the day of your arrest including any medicines taken and alcohol consumed with the time that you started and time that you stopped consuming each;
- A complete synopsis of any medical history for you and your family back two generations and forward two as applicable;
- Details about your stature and any recent fluctuations in your weight;
- Anything unusual about any stage of the three phases of a DUI case. These include the:
- Vehicle in Motion: why did the officer stop you? Did he/she say why?
- Personal Contact Phase: were you fumbling your papers, did you stumble if you exited the vehicle or while outside the car? Did you make any admissions about consuming alcohol?
- FSTS/SFSTs and PBT: what tests did the officer ask you to do? Did you do them all or did you attempt to decline any tests? How did you perform those that you did take? Did the officer explain to you properly the rules about taking a preliminary breath test? Did you take one? Did the officer observe you for 15 minutes prior to taking the pbt? Was there anything going on that may have called the pbt’s reliability into question such as weather or any items in your mouth?
The officer’s observations will be preserved in a police report. If the officer testifies in court to things that he/she did not preserve in this report – the officer’s credibility will be shattered by an effective cross examination. Once the officer is pinned down to only those signs of impairment that he/she did preserve, a thorough cross makes the officer the defense attorney’s best witness. That is because of all the signs of impairment by alcohol that he/she could have observed, a truly effective cross examination will bring out that the officer observed more signs of sobriety than of impairment.
One more thing: the officer’s claim that he/she detected an odor of intoxicants, and that raised his/her suspicion that the person may not be safe to drive home is some of the greatest testimony that I have ever had the pleasure to cross examine an officer about. There is nothing about ethyl alcohol (the active “intoxicating” component of an alcoholic beverage) that carries an odor. Moreover, the odor of “intoxicants” on someone’s breath is a sign of “consumption” and nothing else. There are other reasons why this is a claim that can be turned around in favor of the accused citizen very easily. You can discuss this issue with me if we have the privilege of analyzing your case for you. Perhaps I will also have the opportunity to discuss it with the officer while he/she is on the witness stand.
ARRAIGNMENT
The arraignment is the first step in the state’s effort to prosecute you. The arraignment is really just a formality during which the court reads the charges to you in open court, advises you of your rights and asks you if you want to enter a plea of any sort or assert your right to remain silent or “stand mute.” My advice is to plead not guilty. People sacrificed their lives, blood and properly over 230 years ago so that each of us has the right to require the government to prove allegations against us beyond a reasonable doubt in open court. If you want to simply plead guilty because you want to get the case over with or maybe the officer’s investigation convinced you that you are guilty then you might as well do that yourself.
However, if you want to really investigate whether the government can prove the case beyond a reasonable doubt you should start by investigating who is the best lawyer to handle your DUI/OWI case. There are many and I mean many lawyers who take cases in which a citizen is charged with DUI/OWI. There are few who make it the only part of his or her practice or make it the major focus of his or her practice. If you hire a general practice lawyer who includes DUI/OWI in his or her caseload you might as well save your money unless your defense is that you were not operating your vehicle.
If you retain a lawyer, the first step to take is to waive the arraignment. The arraignment is a formality. Nothing good comes from an arraignment. The problem with appearing for the arraignment is that the judge may decide to impose restrictive bond conditions on you like daily breathalyzer tests. Once the arraignment happens or is waived, the matter will be set for a pre-trial conference at which time your lawyer and the prosecutor will meet to discuss the case. By this time, your lawyer should have conducted some investigation into the facts and begin looking for a defense.
*DUI = Driving Under the Influence/OWI = Operating While Impaired