You don’t get many “freebies” as a criminal trial lawyer and I had one today, at least I thought I did. The client is writing a review as well. The second prosecutor assigned to the case watched the Body Camera. My 79 year old client is charged with a DUI and DWI after a minor fender bender. She is administered the HGN as well as the Walk and Turn and One Leg stand and according to the “SFST trained police officer” she does not pass any. She is arrested and takes the breath test also administered by a “trained breath technician” and blows a .07, just under the per se limit. Now before every trial I dream about the case. I dream about the cross-examination. It is just how my brain operates. Well I spend the last 3 NIGHTS dreaming about this case because it was going to be a blood bath, and none of the blood was going to be my clients. Because she was coming from her high school reunion luncheon (61 years) and blew so low, I did not have her take an alcohol education program. I did have her do the on-line M.A.D.D. Victim Impact Class. She is a professional and has been at the same job for 58 years in multiple managerial positions.
If she is convicted there is ABSOLUTELY NOTHING, I REPEAT, ABSOLUTELY NOTHING a judge is going to do to her except offer her a Probation Before Judgement. That would require an interlock be installed per MVA requirements and that was not happening. My first prosecutor offers her to plead guilty and NOT recommend a PBJ. Declined! We go for trial and the breath tech is on vacation so we have to postpone the case. I tell the judge my client turned 80 a few dats ago and does not want to wait until the fall to get this over with and ask for a trial date in 2 weeks- and I get it.
I WATCHED THE BODY CAMERA, I TOOK THE SFST COURSE AND PASSED- no fucking way the arresting office should have passed the course. I prepare a USB of the HGN where she did not do ONE THING correctly. I also copy the pages of the 2018 and 2023 SFST Course Book, that is probably sitting unread in the trunk of her police car, on how the HGN is administered. Because there is the preparation eye pass and 3 components to test, I was going to explain to the jury in my opening statement that they had to have patience as I played the USB OVER AND OVER AND OVER again with the officer during cross examination focusing on each part and clue at a time.
You do not offer the Walk and Turn or the One Leg Stand to anyone over 65. You don’t offer it to someone with severe arthritis who walks with a pronounced limp with there legs going at different angles who is wearing high heeled shoes (even at 79 she is stylish going to her reunion). She is scared and tells the police officer her legs are shaking her knees are severely sore and she has arthritis. Undeterred the officer makes her attempt to stand heel to toe and then after the instructions perform the exam. The officer does the same for the One Leg Stand exam. I have the pages of the 2018 and 2023 SFTF manual ready for these too in case the “trained SFST police officer” doesn’t remember what she was taught.
The breath testing procedure as a total shit show. No one watched her for 20 minutes and no one checked her mouth, therefore the .07 might have been lower! The “trained breath technician” just strolls into the room, fires up the machine and hands her the mouthpiece and has her blow twice.I had a second USB with four clips showing the entire breath testing procedure involving each officer. They are all going to be slaughtered on the witness stand.
I AM GOING TO BE THE PROM KING!!
While waiting for my prosecutor to show up, another experienced prosecutor comes over and says it is her case now. I say jury trial and she says she is amending to a payable citation and dismissing the DUI and the DWI. Stunned, I ask if she watched the Body Camera. She starts laughing and says “yes I did” and I am dismissing the DUI and DWI. I blurt out neither officer did a fucking thing right, and she laughs again and says I am dismissing the DUI and DWI. I have no choice and we do it and the client gets a PBJ- no points- pay costs and we file an Expungement. I have to ratchet myself down and accept that they canceled the prom and I don’t get to be the king. I go home and get out of my nice suit and jury pleasing tie and type this Blog and now go on to the next case.