Well, I wound up with three prosecutors today. The 2 new and the Division Chief. It was fair because the new prosecutors were not familiar with all the legal issues that could be raised to support their side. This was a non-video stop with a trooper who tried to volunteer every opinion he could muster. I had a recently appointed judge who had been a prosecutor and criminal defense attorney and knew the law. In fact, she left the bench after argument to read some cases. As another attorney remarked to me, “she is a breath of fresh air,” although this county’s District Court judges are a great group to try cases with. The Division Chief did not jump in until the end of the probable cause testimony.
Other than speeding, there was no bad driving and virtual perfection on the SFSTs. I had the officer demonstrate the one-leg stand test and he performed it incorrectly! He said my client swayed during the test, but never put his foot down. The trooper could not make it past 5 or 6 before he put his foot down, and this trooper was in shape. He admitted he demonstrated it incorrectly, but gave my client the correct verbal instructions. I did not ask if my client was supposed “to believe what you told him or his own eyes,” see the previous post about the Marx Brothers. The Division Chief tried to get the PBT in the backdoor but the Judge shut it. The reported case the State relied upon for probable cause was not on point, but it was the only one they had. The judge explained everything she considered and the Suppression was granted and a verdict of Not Guilty was entered. We then expunged the DUI charges, for what that is worth.