What inspired you to defend DWI cases?
“I used to have a more general criminal defense practice. I would handle DWI cases, but I’d also take on every other type of criminal case from petty theft to murder. The thing that struck me about DWI cases is that they are totally different than any other type of case. The system is more unfair to those accused of DWI than any other kind of case.”
How are DWI cases different?
“Most cases turn on whether the facts are true or not. In a drug case, either the defendant possessed the drugs, or he or she didn’t. In a murder case, either the defendant pulled the trigger, or he didn’t. In a theft case, either the defendant stole the stuff or he didn’t. A DWI case is totally different. It is based entirely on the officer’s opinion. It is the officer’s opinion that the person was under the influence based on such ridiculous things as the Field Sobriety Tests, which aren’t really tests at all. My experience is that when I thoroughly press these officers on the bases for their opinions, they are not well-founded. I saw people who were railroaded based on a poorly-trained officer’s opinions, and I’ve dedicated myself to turning that around, one client at a time.”
I’ve heard that Field Sobriety Tests are not entirely fair. Is this true?
“Look, when we went to school as kids, we had tests. We received the material in advance, and the teachers told us what to study. We were told when the tests were going to happen. We all took those tests under exactly the same conditions, in a familiar place, with good lighting and without distractions. There weren’t any cars whizzing by the classroom. Objective criteria are used to score those tests. With Field Sobriety Tests, it is totally different.”
“On Field Sobriety Tests, the person tested gets no advance notice of what will be required. Sometimes the conditions are good, but more often than not the tests are performed |
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in lousy conditions, on slanted streets, with cars whizzing by and poor lighting. Can you imagine how nerve-wracking these tests are if you know you've had something to drink, you are standing outside your car on the side of the road, you are answering to an officer with a badge and a gun and red and blue lights are flashing your face?"
“The anxiety level of someone being subjected to a roadside DWI investigation is off the charts. And, to make matters worse, the tests conducted by the officer are not objectively measured. Most of the time, there is no videotape so we can all look at the person’s performance. It is just what the officer jotted down, usually on his or her hand, that later gets put into a report and parroted back as if it were gospel. That’s just one of the frightening aspects of these so-called ‘investigations.’ And, when I get done cross-examining these officers on the stand, what we end up learning is that even where the subject performed 90 percent of the tests correctly, the officer’s opinion is that the person still failed the tests. |
Schools may have changed a bit since I was a kid, but I think 90 percent should still be a passing score. But, since these officers aren’t trained to assign a score, they still inevitably reach the conclusion that…”
The person failed?
“Exactly. Now you are starting to understand what drives me. I think this is incredibly and unacceptably unfair.”
But what about the machine? What about someone who gives a blood test that shows he or she is above the legal limit?
“The critical questions in a DWI case are whether the accused was impaired as it’s legally defined and whether the person’s blood or breath alcohol level was above the legal limit. Of course this assumes that the breath test machine is working properly, or that the blood sample was properly drawn and properly preserved. These forensic tests raise more questions than they answer. |
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