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Do Prosecutors give LEO's Benefit of the Doubt on PC OWI's?

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  • Do Prosecutors give LEO's Benefit of the Doubt on PC OWI's?

    I know this answer will be different from jurisdiction to jurisdiction, but if you establish PC a driver is operating a vehicle impaired by alcohol but blows under a .08, do the prosecutors give you the benefit of the doubt in most cases? LEO's are vested with a responsibility to keep the roads safe for the motoring public, so I would hope that they would. Or do they drop the case, citing .08 as the benchmark even though technically they than can still prosecute a sub .08 in most states?

  • #2
    I think most prosecutors would prefer to have such a low BAC cited as careless driving or another moving violation that can be easier to prosecute.
    Jerry
    "If all else fails, stop using all else!"

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    • #3
      ..........
      Last edited by 4 Turns; 07-07-2006, 09:06 AM.

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      • #4
        Ours have become so reliant on video, if you don't have the SFTS on video AND audio they won't touch it.
        "Courage is doing what you're afraid to do. There can be no courage unless you're scared." — Eddie Rickenbacker
        World War I hero

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        • #5
          I'm a prosecutor, although in my state DWI is handled in municipal court, so I don't get to be involved in those unless they are attached to a more serious charge. I will say this about prosecuting a weak case. I downgrade or dismiss a lot of weak cases. From my perspective, it is not about the me being "spineless" or afraid to try a case, it is about not wasting the court's time, a jury's time, police officer's time, and my time to try a case that is a straight up loser. I work in a crime-ridden county, with only 2 criminal courts. That means, at best, 2 trials a week. If we pushed every case to the max, we would be waiting a long time for trials. As it is now, it takes 1-2 years from arrest to trial. Can you imagine being called as a witness in a trial 5, 10 or more years after the arrest? Forget police witnesses who may be retired or gone, imagine trying to locate civilian witnesses, much less get them to remember anything. So we have to move cases and try the cases that have the best chance of it being worth everyone's time.

          Also, we as prosecutors lose credibility with the judges when we waste their time with junk cases. This hurts us when we need the judge to give us the benefit of the doubt when setting bail or handling other matters. In other words, we want the judges to understand that when we prosecute a case, it is a good case and should be taken seriously.

          Look, I would love to prosecute every case. I don't mind losing, it happens. But the problem as I see it is not that prosecutors are spineless and only care about conviction rates, the problem is the lack of criminal courts. Whenever politicians talk about public safety and increasing funds, they increase funds for more cops and more prisons. They never add criminal courts, which creates a major bottleneck in the system.

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          • #6
            ..........
            Last edited by 4 Turns; 07-07-2006, 09:06 AM.

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            • #7
              Originally posted by 4 Turns
              I didn't consider a .092 when the per se limit was .10 to be a "straight up loser", seeing how the time from the stop to the blood draw was enough to have dissipated below the .10.

              I also had an arrest refused by the prosecutor when the BAC came back .000. If he'd read the report, he might have noticed that it was for the driver being stoned out of his gourd and had admitted to it.

              I finally decided that regardless of the prosecutor, I'd done my job for any DUI arrest; the drunk was off the street for the night without having killed anyone.
              Like I said, I don't do DUI's, but I agree with you a .092 should be tried, especially if you have other evidence of impairment (officer observations). Question: Do you need an expert to testify that he could have been legally drunk at the time of the operation? If so, maybe the expense of the expert was part of the reason for the dismissal. Another question: Is DUI a jury trial in your state?

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              • #8
                In my state the law says .08 is presumed to be under the influence while .04 to.079 is left up to the discretion of the jury.

                In my county, the DA will not file if the suspect blows below .08 at the jail. Even if it is a diminishing BA and we can prove mathematically that the suspect was .08 or above at the time of the arrest the DA won't prosecute.

                The problem here is that we have too much crime, too few prosecutors and too few courts, so they just go after those cases that offer the greatest probability of conviction.
                Going too far is half the pleasure of not getting anywhere

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                • #9
                  In my jurisdiction, an .08, and to some extent an .09, are not very solid if they go to trial. Therefore, it is not uncommon for them to be reduced to reckless driving, depending on the circumstances. I think the rationale is that sometimes people are arrested while their BAC still increasing, so it is possible that the .08 at the jail was a .06 on the street.

                  I don't think that the problem, in general, is spineless prosecutors -- I think the proseuctors are being smart because it is a waste of time to try a case that is l unlikely to sustain a conviction on the DWI. Also, a reduction to reckless driving is far from a total loss -- here they get about the same punishment, including restricted license and prevention programs.

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                  • #10
                    Originally posted by chaser266
                    I think the rationale is that sometimes people are arrested while their BAC still increasing, so it is possible that the .08 at the jail was a .06 on the street.
                    To address that issue, we do two BAs, so many minutes apart. We then look to see if they were increasing or decreasing and compute back to the time of arrest to determine the actual level at the time of arrest.
                    Going too far is half the pleasure of not getting anywhere

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                    • #11
                      I hope attorney's don't throw cases out based solely on the BAC, particularly if it specifies in the officer's report of other drugs possibly being involved. There are prescriptions out there that affect people more than alcohol. The video footage, level of "impairment" from driver actions during the vehicle in motion and personal contact phases, and other info from a good DUI officer's testimony should have just a good a chance as those cases with a high BAC.

                      it is about not wasting the court's time, a jury's time, police officer's time, and my time to try a case that is a straight up loser.
                      I hope that you would take a close look at every DUI case considering the statistics show that nearly 50% of all fatal accidents in all 50 states are alcohol related. There's a reason for the stiff penalties/fines on DUI cases.

                      I know there are "loser" cases out there if you have an inexperienced officer and you want to hold good credibility with the judge, but with the high amount of cases in metropolitan cities (as case where I am), I sometimes get the feeling some DA's plead it down to reckless when it shouldn't be.

                      There's fault on both the LEO's and attorney's in some cases, but I have learned to deal with it.
                      I'm 10-8 like a shark in a sea of crime..

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                      • #12
                        Originally posted by SgtScott31
                        I hope attorney's don't throw cases out based solely on the BAC, particularly if it specifies in the officer's report of other drugs possibly being involved.
                        If its an arrest for DUI drugs and the DRE articulates their observations well, there is rarely a problem getting a filing in my neck of the woods. Its just the ones for alcohol intox only that are below .08 that pose a problem.
                        Going too far is half the pleasure of not getting anywhere

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                        • #13
                          Originally posted by SgtScott31
                          I hope that you would take a close look at every DUI case considering the statistics show that nearly 50% of all fatal accidents in all 50 states are alcohol related. There's a reason for the stiff penalties/fines on DUI cases.

                          I know there are "loser" cases out there if you have an inexperienced officer and you want to hold good credibility with the judge, but with the high amount of cases in metropolitan cities (as case where I am), I sometimes get the feeling some DA's plead it down to reckless when it shouldn't be.

                          There's fault on both the LEO's and attorney's in some cases, but I have learned to deal with it.
                          Like I said, I don't do DUI's at all. In my state, that is handled in municipal court as are all traffic offenses and nonindictables (misdemeanors). Municipal courts do not have jury trials, and in fact, in my state, a DUI charge CANNOT be dismissed or downgraded without the consent of the Attorney General, which essentially means the defendant either pleads guilty or has a bench trial.

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