Tough Times Call For Tough Representation

Photo of Gary S. Bernstein

You have to know when to run and know when to fold them when you are on the witness stand and you screwed up.  As the bailiff told my client after the case, her lawyer put a beat down on the police officer.  The reason for that was because he was an arrogant prick.  I have a great relationship with officers from all departments.  Some send me clients.  But when you choose the morning of the trial to study for the test, you tend to fail.

Now my client took a breath test, but it has to be admissible. To be admissible, the arrest had to be valid.  For the arrest to be valid there had to be clues of impairment, especially from PROPERLY ADMINISTERED SFSTs.   What you claimed you saw something, it should be on the Body Camera footage, which I watch WEEKS before the trial date.

Now the trooper walks in and the prosecutor tells him “this is a trial.”  We hear him respond incredulously “there’s a test!”  She shrugs and he sits down and powers on his computer and starts to study for the test by watching the Body Camera footage.  He even goes out into the hallway to watch it some more while the docket progresses  He can watch it all he wants but he doesn’t know what he did wrong.

The trial starts and he ascribes a medical condition to my client that comes from over consumption of alcohol and that causes her to sway from side to side.  Of course she has SLURRED SPEECH.  Now she isn’t swaying and her speech is PERFECT.  He finds clues on the Walk and Turn test but he gives incomplete instructions.  AND he is arrogant about how he is trained at the Academy, Advanced DUI Training; he has a total of 96 hours of SFSTs training. – the man is a legend in his own mind.   NOT ANYMORE!

Well we all watch the video and he cannot point out any swaying consistent with this medical condition that he blurted out on direct examination.  After I got done with him on this, the Judge wanted to know where my client swayed and said in her decision she saw NONE. I ask him to tell me what word she slurred and I demonstrate slurring. I drill him like a dentist to tell me one word she slurred or didn’t understand.  As he hedges, THE JUDGE ASKS HIM the same question.  He has no answer because there was no slurred speech.

Now he screwed up the Walk and Turn instructions and tried to deny it- IT IS  ON THE F…ING VIDEO!!!    Well I play it for him again and he tries to minimize the instruction- like the SFST Manual makes it optional. I ask him that after 96 hours of training he doesn’t know what the instructions are. I am sitting there with the Manual (as I have the same Certification), and ask him where it says that.  I offer him to look at the Manual, and he says “the whole book? ” I ask him where I would find it and he grudgingly concedes it is not in there.  Instead of just saying, oops,I screwed up, he wants to fight a fight he has no shot of winning.  My client performs well on the tests even with the missed instruction and her driving is not bad.  The judge finds no probable cause for the arrest and the DUI disappears.  In fact I got the Expungement Certificate in the mail today.

When we teach how to try cases, we always say “know thy judge.” It applies to know who the defense attorney is.  Some of the police I am friends with the me that when they see my name or a couple of others, they know to study for the test in advance, and its it is a close case, they expect the client to be acquitted.  They understand the difference between probable cause to arrest and proof beyond a reasonable doubt, and recognize that they decide probable cause, and just have to recite the facts and leave it to the judge or jury to determine reasonable doubt.  This trooper didn’t follow that admonition and he wanted to decide the case.  The last one to do that was the SVU Unit Sgt. in the Rape case a few blogs below who got his lunch handed to him as well.  I have to say that it is always a lot of fun when you have something to work with.