Something a lawyer said...

[nr5667]

...So, a lawyer told my fiancee this about getting out of a drunk driving arrest...

If I were to be pulled over by a police officer, and arrested -- this lawyer said he could probably get the charges dismissed by showing that probable cause wasn't met...

...That is to say, when the police officer is asked why his client was pulled over, (swerving), the lawyer could say, "how do you know he didn't drop something and he was bending to pick it up?"

...If the police officer said the client was slurring his speech, the lawyer could ask, "have you ever spoken to my client before? Did you know whether or not he always speaks like this?"

...And on, in similar vain. Now, this seems a bit spurious to me, because probable cause suggests to me the police officer has reasonable suspicion when all the facts are put together, but this lawyer seemed to make it sound as though any alternate explanation would nullify probable cause...

...He also stated that by refusing to answer any questions or submit to a field sobriety test, you can basically ensure that even if arrested, when the case goes to court, the officer won't have any valid probable cause for the arrest (thus making any tests done moot)...

Is this at all plausible? Am I totally missing out on some caveat? Do you guys know what this lawyer is getting at?

This is a lawyer who also happens to be a marketing professor, so... Perhaps a little rusty... I just have difficulty believing that the laws wouldn't be changed if it was really this easy to get out of a drunk driving arrest.

Anyway, thanks for any replies, sorry if this has been asked before (probably has)...

[Fuzz]

...So, a lawyer told my fiancee this about getting out of a drunk driving arrest...

If I were to be pulled over by a police officer, and arrested -- this lawyer said he could probably get the charges dismissed by showing that probable cause wasn't met...

Lawyers arent going to tell someone that they stink and cant win in court...they will always say they might or could probably get a win

...That is to say, when the police officer is asked why his client was pulled over, (swerving), the lawyer could say, "how do you know he didn't drop something and he was bending to pick it up?"

Doesnt matter if you dropped something....if you crossed the line, made an unsafe movement, etc you have committed a violation and there is probable cause for a stop. Has nothing to do with why the driver made the movement....more lawyer BS.

...If the police officer said the client was slurring his speech, the lawyer could ask, "have you ever spoken to my client before? Did you know whether or not he always speaks like this?"

They could possible have a speech impediment, but that is but one of many factors that lead an officer to make a decision to arrest. It is the totality of the circumstances...not each one analyzed by itself.

...And on, in similar vain. Now, this seems a bit spurious to me, because probable cause suggests to me the police officer has reasonable suspicion when all the facts are put together, but this lawyer seemed to make it sound as though any alternate explanation would nullify probable cause...

Its reasonable doubt......... not all doubt.

...He also stated that by refusing to answer any questions or submit to a field sobriety test, you can basically ensure that even if arrested, when the case goes to court, the officer won't have any valid probable cause for the arrest (thus making any tests done moot)...

If there was no valid probable cause for arrest then they would not be arrested. It may be more difficult to prove an arrest or more difficult for the officer to determine sobriety or impairment, but an arrest can still be done. Do you really think that a stumbling falling down drunk could get out of a DUI by not talking or doing FST's........nope still arrested. Somoene who is at the legal limit it might be more difficult for the officer to tell....... but it does not ensure that there is not probable cause.

Is this at all plausible? Am I totally missing out on some caveat? Do you guys know what this lawyer is getting at?

The lawyer is talking BS....... just listen to any of the ambulance chasers on tv. They will tell you what they think you want to hear. Do they win sometimes...yes. Does that mean what they say is correct...no.

This is a lawyer who also happens to be a marketing professor, so... Perhaps a little rusty... I just have difficulty believing that the laws wouldn't be changed if it was really this easy to get out of a drunk driving arrest.

Anyway, thanks for any replies, sorry if this has been asked before (probably has)...

A lawyer who is also a professor........ thats a double whammy for someone who thinks they know everything. Sounds like he needs to brush up on some of his laws.

[StudChris]

Asking if I've ever spoken to their client before is something I hear about once a week in DUI court (aka every single time I go). The defense will have an alternative reason for every single observation you made. That's their job, and if they didn't have those defenses than I have a problem with them because they're horrible at their job. If you spend enough time in court, then you realize that the defense is there for a reason (because we do make mistakes, and our mistakes SHOULD be brought out in court). I can honestly tell you that I've learned more about DUI (as far as the report goes) from a certain defense lawyer than I've learned from any other cop.

The thing about DUI that sets it apart from almost every other crime is that it's it's mostly opinion based, not fact based (not as much the case in states where you PBT before you arrest). That's why a good report is very detailed, and shows that you made the arrest based on the totality of the circumstances, not just a swerve, and the odor of an alcoholic beverage.

[KAA951]

They can refuse to make any statements or take the sobriety tests...

However, there is no way to stop me from smelling the odor of alcohol on their breath, looking at their bloodshot eyes or watching as they stumble to the rear of the their car before they are arrested. Then you have to factor in the officer's experience and opinion based on that experience. The officer has arrested or been involved in the arrest of XXX hundred intoxicated persons- based on their opinion and experience was the suspect intoxicated in this case? I have had court convictions where the suspect refused testing or stated that they had some injury that precluded them from the sobriety tests.

The convictions are based on the totality of the circumstances- their driving, their conduct and my observations.

Yes, defense attorneys try to pick cases apart and attack each individual part of a stop. The problem is that while they can explain each individual clue or violation away- when the prosecutor puts the pieces together it provides a clear picture that leads to convictions.

Here is an example for you from a civilian perspective:

You are sitting at the local 24 hour pancake house at 2:10 AM on a Sunday morning. You notice that several people have entered the pancake house who are dressed for a night on the town- not the usual $4 breakfast crowd. You know that the local bars close at 2 AM. The group is loud and boisterous as they come in and you notice that several of them seem to be having trouble maintaining their balance. As they walk by your table, you smell a strong odor of "alcoholic beverages" and one of them stumbles as they pass your chair. After they stumble into you, one of them turn to you and apologize. As they speak with you, you notice they are slurring their words and mumbling. Their eyes are bloodshot, their face is flushed and their eyes are very watery.

What would a reasonable person taking all the facts above into account say about the group? I would bet that someone in your party would say, "Wow, they are hammered!" or something along those lines.

The defense attorney in this case would pick apart your reasoning by saying that there was a function at a local church that went late and the volunteers, who were dressed well, were hungry after working all day. They were very tired and this effected their balance and coordination. At one point during the event, someone had spilled an alcoholic beverage on their clothing so they smelled that way. The person who stumbled hurt their leg last week playing softball and is under a doctors care- that is why they stumbled. They also have a condition where they slur their speech when they are tired and their allergies are bothering them- hence the red, watery eyes. Their face is flushed because they have just helped an old woman in a wheelchair up the stairs outside the restaurant.

Judges (for the most part) have common sense- many of them have been defense attorneys at some point and understand the game.

[CruiserClass]

The hypothetical drunk would be the subject of a hypothetical search warrant for his hypothetical blood. I would then have the hypothetical sample analyzed to get the hypothetical subject's BAC. This would provide prima facie evidence that the hypothetical subject violated state law by operating a motor vehicle with a BAC above tolerances established by the state legislature.

That ought to be written so a lawyer/professor can understand it. For everyone else:

I'll just get a warrant for the drunk's blood and that'll be the end of legal shenanigans.

[nr5667]

How would you get the warrant? This lawyer's point is that he can sufficiently question probable cause, such that the resulting tests would be inadmissable as evidence.

However, the answers seem to trend towards affirming my suspicion that all evidence taken together creates probable cause...

Thanks for the replies

[SgtScott31]

How would you get the warrant? This lawyer's point is that he can sufficiently question probable cause, such that the resulting tests would be inadmissable as evidence.

However, the answers seem to trend towards affirming my suspicion that all evidence taken together creates probable cause...

Thanks for the replies

The lawyer cannot prevent an officer from getting an arrest warrant. A judge or commissioner makes the determination that probable cause exists to sign a warrant. The lawyer has nothing to do with the actual arrest process. Even if the driver requests an attorney on scene, we do not have to award him that privilege. Drivers are detained, but not under arrest during a traffic stop until we determine there is enough PC for a DUI arrest. The Field Sobriety tests and other questions during the stop are just that, during the stop. If the driver is not yet under arrest, Miranda does not apply. Following the DUI arrest, implied consent is read and if the driver refuses to submit to a chemical test, another charge is added. An attorney is still not required at this point. The implied consent rule is part of receiving your driver's license. If the officer has RS that you are under the influence of an intoxicant and requests you to submit to a chemical test and you refuse, it is an automatic suspension of your license for 12 months (for TN), regardless of the outcome of the actual DUI charge. If the driver requests an attorney once he is under arrest, he is free to call him once we get to booking. I rarely ever mirandize DUI defendants because I never ask them incriminating statements following the arrest. They normally talk themselves into more trouble anyway.

All evidence = totality of circumstances = decision to arrest or not arrest. A good DUI officer knows this and his/her report reflects such. If they follow the NHTSA guidelines, the evidence from the (1) vehicle in motion, (2) personal contact phase, and (3) pre-arrest screening (SFSTs) will help in making their decision.

[nr5667]

The lawyer cannot prevent an officer from getting an arrest warrant. A judge or commissioner makes the determination that probable cause exists to sign a warrant. The lawyer has nothing to do with the actual arrest process.

I realize that; this would be during the trial, the lawyer is basically saying that during the trial, he can cast sufficient aspersions upon the officer's probable cause, which would render moot whether or not the driver was drunk because the arrest would have been made without probable cause...

I suppose a different way to cast my question would be -- if you pulled over someone for a vehicle violation (swerving), and they refused to answer any questions, or take a field sobriety test, how would you go about arresting them such that their case would not be dismissed in court due to a lack of probable cause?

It sounds like the lawyer was stretching things a bit when he said he could render moot observations about the suspect's behavior (slurred speech, bloodshot eyes, difficulty maintaining balance).



Have any of you had a lawyer succeed at this with you?..

[LA DEP]

I have spoken with a couple of DUI lawyers here in the LA area that suggest the very thing the OP is posting......personally, I think they are trying to drum up more business......

While what they are suggesting MIGHT get you cleared in a jury trial (or at least a hung jury, which is the same thing most of the time in LA) it will almost guarantee your arrest.

Even if you beat the DUI in trial, you will still be out legal fees to the tune of anywhere from 5K to 20K depending on the length of trial, and which lawyer you pick.......if you refused a BAC test (blood or breath test) your CDL will also be suspended for one year, whether you beat the case or not

[nr5667]

I have spoken with a couple of DUI lawyers here in the LA area that suggest the very thing the OP is posting......personally, I think they are trying to drum up more business......

While what they are suggesting MIGHT get you cleared in a jury trial (or at least a hung jury, which is the same thing most of the time in LA) it will almost guarantee your arrest.

Even if you beat the DUI in trial, you will still be out legal fees to the tune of anywhere from 5K to 20K depending on the length of trial, and which lawyer you pick.......if you refused a BAC test (blood or breath test) your CDL will also be suspended for one year, whether you beat the case or not

So even if you do get out of it, you're still out a large sum of money and your license for a year... Sounds like the laws have been constructed in such a manner to get around this lawyer methodology.

[ChargerPD]

I'm actually 1/3 done with getting my law degree from a T1 law school and am a sworn Texas peace officer. I plan on remaining one after completing my degree.

First of all, your professor must be on something. No offense, but no lawyer worth his salt would make idiotic defenses like that. He needs to stick to marketing.

Beyond a reasonable doubt is the burden of proof in a criminal trial. Without going into much more, some of the things that the lawyer suggested is not "reasonable" doubt. It is simply irrational doubt, for lack of a better term.

Second, a peace officer can make a traffic stop for ANY violation of the law. If he then smells alcohol, he can go that route, or he may choose to look for eratic driving behavior or as we like to call it "swerving". In that case, based on the officer's training, the time of day, direction of travel (proximity to bars) and later the initial interview, he can say that he had a reasonable suspicion of DWI.

Personally, I like to get them from different angles. Many times, they have no LP light present or their registration is expired in addition to their swerving. In that case I stop them for the no LP light and bring up the swerving. My department hasnt yet started mandatory blood draws, but I think it is an excellent tool. You cant argue with a .08.

The best way to beat a DWI or DUI (whatever it is in your state) is to watch your alcohol intake.

[LA DEP]

So even if you do get out of it, you're still out a large sum of money and your license for a year... Sounds like the laws have been constructed in such a manner to get around this lawyer methodology.

The DUI laws in CA have been around LONG before these guys even started practicing law......

As ChargerPD said, the best way to avoid a DUI charge is to not drink and drive.

[nr5667]

Always do, I'm actually just beginning law school myself (though I don't plan on being a DUI lawyer!), and though I thought the claims were tenuous, I felt encouraged to seek the opinion of a knowledgable source other than a DUI lawyer.

Thanks for the input guys.

[chiefcop]

It is the job of a defense attorney to create "reasonable doubt" upon a juror to attempt to protect his client. (That was hard to get out)

To stop a car what does an officer need......usually it is "reasonable suspicion" .... once the car is stopped and further information is obtained...smells, observations and the like, then "probable cause" may be met for the crime in question.

Humm I see a pick up swerving in its lane and cannot keep speed even....and speeds up past the speed limit. This is where reasonable suspicion is fromed. A driving pattern is obtained, and then contact is made. 1/2 mile later the truck finally pulls to the side and drivers over the curbing of the sidewalk.
Humm the dead bottle of Jack and a few cans of beer in on the floorboard of the pick up, smell of an alcoholic beverage about the breath and person, red, watery bloodshor eyes, hummm he opened every window except the one I am standing at(driver's window) passes by the driver's license 5 times in the wallet and hands you the Bank of Alcoholic VISA debit card as he belches.....phew...

Driver gets out of the truck and pulls the door off of the hinges because it is the only thing holding him up, trips over the smooth pavement and sways like a tree in a hurricane (with no wind present)

Hummmmmmm

Oh yeah and the only comment you may get is (steady....)

"Officer I only had two beers........"

[StudChris]

Lawyers are scum. Plain and simple, anyone disagreeing with this stand on your head.

I disagree, they have a job to do, and to be honest most lawyers (good ones) work harder than most of us do. Do we agree with their job? No, because it's the opposite of ours. However it's a necessary job and just because they're doing it doesn't mean they're scum.


With that said... there are plenty of scum lawyers.