DUI

There are all kinds of combinations you come up against down in the different layers of law court. I’m trying to learn how to work every one. It’s about respect. Getting it for yourself, and taking it away from the other guy. Lawyering is an unnatural act. Everything in lawyering is backwards. Sometimes the best way to deliver a punch is: step back. But, step back too far, you aren’t fighting at all.

He has littler DUI experience than he says. In trial the prosecutor asks “How many DUI arrests have you done?” You always hear some enormous number like 50 or hundreds. There’s a report that will clear all of that up. You can even get it for the whole time an officer has been on the force. It can be big. The report is the Dispatch Officer Log. It is a log of an officer’s activity during a certain time period. I get it.

It’s a numbers game. The police have Quotas. They call them “performance objectives.” As a supervisor, when you send out 10 cops for 12 hour shifts, they better come back with results. If 15 officers go out and come back with only three DUI citations, someone will have some explaining to do. Quota’s are an officer’s lifeline. I leave this one alone. I just want you to know it exists.

They don’t want to be called out on having their “Implied Consent Card” or Miranda Cards. In court the prosecutor brings a generic Implied Consent card. I take it and inspect it for his signature. Each officer is supposed to have his own initials on his own card. Otherwise, he is wrong.

They don’t want you to know that they don’t know how to give the field sobriety tests. If you see a report where there are two cops involved. One stopped you and one gave the field sobriety tests. It’s a clue that the stopping cop doesn’t know how to give the tests. One remedy to this is with a Motion to Depose Arresting Officer.

They don’t give Miranda rights before questioning you. I lock them down by filing a good Motion for Discovery and Cross-examining them at the Preliminary Hearing.

Cops lie about where they were or what they did. They leave out important parts of a call. For example, an officer with radar is required to test and call dispatch to confirm. If he stops you and didn’t “test” and “call,” you are off the hook. I read the police report and it is all pretty and good for the cop. I’m looking for a time line. But, there is none in the report. Or maybe it says a thing happened at a certain time. Somehow I know it doesn’t add up. I find out what really happened and when by requesting the CAD Records, which is the 911 Report.

The report card is Peace Officer Standards and Training Records (POST) records.  This has all of their infractions, schools, positive and negative reports, including times when they lied under oath or falsified documents or reports.  You’re in court when the officer lies about something to finish the lie he began in the report.  For example, he says he actually read Implied Consent rights from the orange card.  But he never did.  Sometimes you’ll be shocked when you get his POST records. So, I get them.

The Nextel radio is how police work gets done. The police report shows that the cop barely used 911 Dispatch.  There are lies about how other officers arrived on the scene, what equipment an officer forgot; or how other unexplainable things happened.  Let’s say you’ve got the 911 CAD Records, and the police report and things don’t add up.  Well, most agencies Officers and Supervisors carry Nextel’s.  This radio is the key to how police work gets done.  I subpoena an Officer’s Nextel Records.

The DUI police officer comes up. He bangs on the glass. He gets your license. Then he starts…

COP: “Ma’mm, do you know how fast you were going?” or “Is there some reason you could not stay in your lane back there?” or “Miss, I clocked you with laser going 78 in a 45 miles per hour zone. Are you on your way to an emergency or something?”

YOU: “Officer, I choose to remain silent.”  Answer nothing about why you were stopped or arrested.  If you do talk, never say that you committed some traffic offense. Stay calm. Be nice.

YOU: “Sir or Ma’am, I believe I stayed in my lane.” Everything you say is recorded, and your DUI lawyer may be able to use the favorable things you said to win your case.

COP: “Get out of the car.” He’s watching you. How do you get out? Are you crying? Are you holding the door? He’s going to write it all down in his report in a little while.  You’re better off not immediately getting out of your car.

YOU: Politely, “May I ask you why I need to get out of my car?”

COP: “I think you’re drunk.”

YOU: “I would like to call my DUI lawyer to decide what to do.” He won’t let you.  He insists that you get out.  Never physically resist the DUI officer. Do verbally try to decline getting out of your car. If he helps you get out of your car by opening your door and putting his hands on you, then you are now in custody. And, this is what you want.  Don’t get mad or act out in anyway.  Just do exactly as he tells you to do. And be nice.

Don’t do the Field Sobriety Tests.

If you do the field sobriety tests, you will probably fail them without ever knowing that you failed.

How to handle the rest of the DUI stop

• If asked about alcohol use or drugs, either admit nothing, or blame it on your bottle of mouthwash. You could say, “I just brushed my teeth.”
• Never incriminate yourself by admitting that you drank “only two glasses of wine with dinner.” If you do, you’re going to jail.
• If asked about your license or any documents have them ready for the officer.
• Never voluntarily get out of your car.  Stay seated. Keep your hands visible, on the wheel.
• If the officer asks you to get out of the car, tell him that “I prefer not to get out because of safety.”
• If the cop says he smells alcohol or drugs, never admit to anything. Just ask, “Am I under arrest?” The officer will say something like, “I need to give you some field evaluations to make sure you are safe to be on your way home.” This is a trick. It sounds good until he says you failed the tests. Politely say, “Thank you officer. Unless I have my lawyer present, I’d prefer NOT to try and perform field sobriety tests or medical tests that I don’t know about. Expect to be prodded and verbally challenged about why you are refusing to take these “simple tests.” Just sit there and listen to it. Never let the cop start any of these evaluations. Only when he orders you to get out, and physically opens your door should you reluctantly leave your car.
• Once you get out of the car, do nothing and walk nowhere other than where he says to go. Explain your desire to not get out of the car at the roadside, and your desire not to be asked to walk, balance, count or perform any voluntary roadside evaluations of any kind. If offered a hand-held breathalyzer, just say no. If asked, “Why not blow if you haven’t been drinking?” Tell him you have no confidence in battery-powered devices that could be wrong or carry bacteria, germs, and diseases like tuberculosis.
• Ask to call your lawyer on your cell phone as soon as the officer starts getting pushy. Also, tell the cop you are willing to satisfy his concerns for safety by handing him your keys and either walking home or taking a cab. But, you will never submit to testing that might be inaccurate or unreliable. The officer might ask, “So you don’t think you are safe to drive?” You reply, “That’s not true. I am trying to make you happy. I am being cooperative with you, even if I believe you are wrong.”
• Assume everything is being recorded in his car and outside your car. He’s wired. His microphone can hear you whisper. So, remain silent. Remain silent even if you think you’re in a private place.
• If you’re being followed by a police officer, never pull over before he puts blue lights on.
• May I call a cab, walk by foot, or go with a friend?
• Tell the cop that you are willing to satisfy his concerns for safety by handing him your keys and walking home, or cab it, but you will not take a test that is unreliable and inaccurate.

Imagine driving. Ahead is a wall of blue lights. They block the road. A policeman is directing traffic. He raises his flashlight. You slow suddenly. You’re in the jam. You stop. Two cops come to your window. One sticks a flashlight in your face.  One says, “Breath on me. Have you been drinking? Get out of the car.” The questioners have all the efficiency, coldness, and command of themselves as police who are policing and are not being policed on. “I beg your pardon,” you say.” You stand there and listen to this. The questioning is stupid. You are obviously a drunk driving. You see how their minds work. They are all young men and they are saving Savannah’s streets. And this is the price you paid for driving. Once it starts you are in the mill-race. This is the end of the trap.

Was the roadblock done by the rules? Did the roadblock have a supervisory cop? Did the roadblock have a good legal purpose? Were all cars stopped? Was the delay quick? The law is technical for roadblocks.  If the police didn’t follow the law, you have a chance to challenge your DUI and win. You do not want something reasonable, you want something technical and then stick to it without explanations.

I bought this four hundred dollar book called, “Drunk Driving Defense,” written by Lawrence Taylor and Steve Oberman.  I began reading it and saw that the only way to get good at this was to do what these guys did and to do only one thing: DUI cases.  I wrote a letter to Lawrence Taylor (The Dean of DUI Attorneys,) and pretty much thanked him for writing his wonderful book, and expressed my excitement to do what he did. He wrote me an email and told me to join the 1000+ member National College of DUI Defense (NCDD,) and take advantage of its excellent seminars, online data resources and very helpful listserve. I did as he said, and I went to a seminar in Las Vegas. It was a pleasure and I got to meet Lawrence Taylor, and Steve Oberman, and so many more top DUI lawyers.

The College is the best thing I’ve done since I became a lawyer.  The greatest legal minds alive in DUI Defense lead it, run it, share it, and keep up with it.  There mission: “to provide the finest advanced level training available to the DUI Defense Law practitioner.

I’m excited about going to New Orleans on April 14th for the seminar “Mastering Scientific Evidence in DUI Cases” put on by the NCDD.  The seminar was founded by William C. “Bubba” Head, one of the deans of DUI Defense in Atlanta, Georgia in 1994. In the end, I guess what I am trying to say is I am following the leaders.