Disproving DUI Defense

[PatrolOfc]

Here's a question for the experience CHP officers out there as I know you run into this all the time. Per 40300.5 VC, you may arrest a subject for DUI if they are found in or about a vehicle. I.e.; the typical guy/girl pulled over to the shoulder peeing in the bushes and their vehicle on the shoulder. Person is obviously DUI and if you can articulate they are the driver of that vehicle, then the DUI arrest is good...right? Or better yet, the guy/girl passed out in the driver's seat of the vehicle pulled over on the shoulder, although you did not observe them drive.

So, I have this case, where I find a guy parked on the wrong side of the street, which to me, appeared that he ran off the road. The headlights were on, the engine was off. As I contact him, he exits the driver's side door. He smells of alcohol. During the prelim investigation, he admits to driving after dropping off his girlfriend down the street at an undisclosed hotel. FSTs conducted and has 0.10+ BAC on the PAS. He gets hooked and breathalyzer tests shows same BAC.

Instead of towing his vehicle, we pick up the girlfriend down the street to release the vehicle to her. Hand her the keys and off she goes.

Now, I think this would be the guy's 4th DUI conviction. Now he's claiming, his girl was driving the car, they get into a verbal fight, she pulls over, tells him to drive drunk, and walks away. That's when I happen to find him seated in the driver's seat of the vehicle.

Based on his initial statement that he drove and FSTs, I believe the hook was good. Now this guy is going to jury trial. Can anyone see where I can poke holes at this guy's defense???

[dw]

Based on his initial statement that he drove and FSTs, I believe the hook was good. Now this guy is going to jury trial. Can anyone see where I can poke holes at this guy's defense???Did you get any statement from the girlfriend at the time? A statement from her (if she choses to roll on the BF) after the fact would be better than none at all... Where was she in relation to the vehicle and where she was going? (If he dropped her off wherever she was going, why would she be walking around?)

If I understand correctly, his defense is that he was the passenger, she gets out, for some reason he switches to the driver's seat and then just sits there? His statement that he was driving is helpful -- hopefully it was recorded. Where were the keys? Where were they coming from and did anyone see him drive away?

[carcop]

How far away is the hotel she was staying at? Is it walking distance? What's the time relation? Her statements? Could she have walked and changed clothes in the time you found him?

His statements should hold water, recorded or not, so long as you documented it in the report. Was the engine still hot? If it was on a dirt shoulder, were there any footprints coming out of passenger side that matched suspect?

hmmmmmmm...

[Mac]

Here's my own personal theory on a situation like this (and it's worth exactly what you paid for it):

It's not my job to "poke holes in his defense" - that's the DA's job. I'm not a prosecutor, I'm just a witness. My job is to show up in court, testify accurately and truthfully to the circumstances surrounding the arrest, and let the chips fall where they may as far as a verdict goes. Whether he is found guilty or not guilty has no effect whatsoever on my pay, my job status or my life in general, so I couldn't care less. I did my job when I got a recidivist drunk driver off the street that night and kept him from harming anybody through his selfish, irresponsible actions.

If a judge or jury chooses to find him not guilty in court and let him off scot-free, then the blood is on their hands when he injures or kills somebody next time he does it.....and if he has 3 prior DUI convictions, he obviously will do it again....and again....and again. That's all beyond my span of control - all I can do is tell "the truth, the whole truth, and nothing but the truth, so help me God."

People (including jurors) often fail to realize that attorneys are not under oath as we are - they can prevaricate, fabricate and outright lie in court without consequence. They can (and do) make up ridiculous, far-fetched (but clever) cock-and-bull stories to explain their clients' actions, and there's not a damn thing we as law enforcement officers can do about it.

For what it's worth, you made a righteous pinch. Good job.

[x MAIT]

[quote=PatrolOfc;32155]

Instead of towing his vehicle, we pick up the girlfriend down the street to release the vehicle to her. Hand her the keys and off she goes.quote]

No good deed goes unpunished.

Mac has hit the nail right on the head. Too many officers feel that they must get a conviction on every case they go to court on, be it an arrest or citation. Some take it personal when they lose. You will look more professional and should feel the same if you just go to court and present your case and let the cards fall where they may. If you fight with the attorney and refuse to give in to any little point, you can sometimes give the jury the feeling that you are too involved in the case and have taken things personal. Just be a fair and impartial witness. You did your job when you took that person off the road. Just remember the details of this case next time you are involved in something similiar. Consider everything that you are involved in as training for the next time.

Keep up the good work and be safe.

[x MAIT]

People (including jurors) often fail to realize that attorneys are not under oath as we are - they can prevaricate, fabricate and outright lie in court without consequence. They can (and do) make up ridiculous, far-fetched (but clever) cock-and-bull stories to explain their clients' actions, and there's not a damn thing we as law enforcement officers can do about it.


Mac, this is a great point. I'm going to try to say this every time I get on the stand.

[LAWNMUSIC]

We all know anybody can be found innocent of anything. It all depends on the jury. But, almost any person wouldn't believe that... a) A person is arrested for DUI and doesn't say that his girlfriend was actually driving at the time he's questioned/arrested; and b) you contact the girlfriend after the arrest and she doesn't state that she was the driver when her boyfriend is going to go to jail for something "he didn't do". This isn't the first time officers/DAs have had this scenario and it wouldn't be too difficult to convince a jury that the story was made up after the fact. Also, the DA can try and have his past DUI convictions allowed into the trial (if it goes that far) which will obviously show he has a history. That was a bombshell on an already airtight 20001 case I just had when the fact the guy had two prior hit and runs on his record was brought up at trial. I haven't had one of these (4 or more DUIs) actually go to trial yet. I've had 6 or 7 and they have all plead out. I know one guy got 18 months prison time (plead at the last second), but it would have been considerably more if he had been found guilty at trial. Mac's right though, if you're on the stand, just state the facts. The DA is the one who will "poke the holes".

[AyatollahGondola]

So, I have this case, where I find a guy parked on the wrong side of the street, which to me, appeared that he ran off the road. The headlights were on, the engine was off. As I contact him, he exits the driver's side door.

??
Isn't this still an offense he can be charged for which would then make him the "operator" of the vehicle? Seems like it would be easier to get a parking violation conviction first, since it would be a lesser burden of proof, and then having done so, move on to the DUI?

[Dipmo]

Isn't this still an offense he can be charged for which would then make him the "operator" of the vehicle? Seems like it would be easier to get a parking violation conviction first, since it would be a lesser burden of proof, and then having done so, move on to the DUI?

$20 parking ticket, or DUI, tough choice.

[x MAIT]

Isn't this still an offense he can be charged for which would then make him the "operator" of the vehicle? Seems like it would be easier to get a parking violation conviction first, since it would be a lesser burden of proof, and then having done so, move on to the DUI?

You need to do some research on case law for DUI.

[PatrolOfc]

Well...thanks for the reply, but I don't have to worry about that anymore. I was just glad I got a drunk off the streets that night before he creamed one of us when we do our job out there on the streets or some other innocent motorist/ped.

As far as the "girlfriend" goes, there was more to the story. Suspect claims he just dropped of his "girlfriend" with another man at one of 2 hotels down the street. First thought....B girl and he's the pimp. After we hook him, we call her and see if she can pick up the car and ask what hotel she's at. I get the run around cause she doesn't want to say. Wants to make her own arrangements even though i can provide a courtesy transport since it's about a good 1/2 to 8/10 of a mile away. But she denies.

We wait a bit, takes too long so we go and find her walking with the "other man." Suspect is being transported already by my other partner for Intoxilyzer and county jail. So we pick her up, id her, drive her over and hand her the keys, which were in the ignition at time of contact with suspect. Engine was off, but I didn't think to touch the engine at the time...but I know now, plus note size of seat position consistent with driver.

Out of curiousity, we follow her blacked out and find out which hotel she's at. We check with the desk who oddly says, she was asking where to buy foil at 3 in the morning. Hmm....H&S? We didn't have enough PC, so we let it go.

Priors for the suspect, he's got a DUI conviction, 245, 459, etc, and on probation. "Girlfriend's" history. She's got priors for 148, LOTS of H&S, and oddly enough 647(b).

Either way, the suspect took a plea instead today. The DA was going with 23152(a/b) with prior conviction. The deal was plea to the 23152(b) minus the prior conviction. He got 3 months court probation with the DUI terms, suspended DL...plus time served, which was 180 days and included his probation violation.

So it ends well...but he'll be out and about again.

[bcjack]

Now, I think this would be the guy's 4th DUI conviction.


Congratulation on getting something on this guy...BUT..."The deal was plea to the 23152(b) minus the prior conviction. He got 3 months court probation with the DUI terms, suspended DL...plus time served, which was 180 days and included his probation violation." for what should have been a FELONY is kind of lame on the DA's part IMHO!!!!!:cry:

[Mac]

....for what should have been a FELONY is kind of lame on the DA's part IMHO!!!!!:cry:
The cold reality of it is that it has a lot to do with politics. DA is an elected position, and they're all about the "conviction rate" because they like being able to throw those numbers around when election time comes. A high conviction rate (ostensibly) shows that they're doing their job and are "tough on crime". A plea bargain counts as a conviction, so they'll often go for the sure thing rather than take a chance on going to trial. Sad but true.

[bcjack]

The cold reality of it is that it has a lot to do with politics. DA is an elected position, and they're all about the "conviction rate" because they like being able to throw those numbers around when election time comes. A high conviction rate (ostensibly) shows that they're doing their job and are "tough on crime". A plea bargain counts as a conviction, so they'll often go for the sure thing rather than take a chance on going to trial. Sad but true.

Yep!!! Unfortunately.:cry: