11.18.2011

When I Lose, I Admit That I Lose

The DWI trial just ended in a guilty verdict, and it didn't take long. I feel like I'm the only one shocked.

Basic facts: It all starts at a convenience store in Boyd around 1:00 a.m.   My client buys a coke and cigarette and, as she leaves, the clerk turns to three cops standing around and says,  "Did you smell alcohol?".  (The clerk will testify that it was just an observation and "never thought she would end up being arrested." She said it was the perfume that got her attention with an underlying scent of alcohol.)  A Boyd cop follows her for about a half of a mile and stops her for speeding (36 in a 20.)  There were multiple turns with no traffic violations along the way.

The toughest part for me (post verdict) are the field sobriety tests. She did fantastic.  Although the officer detected some clues and thought he had probable cause for an arrest, the prosecutor would have to concede that the jury could not convict based solely on the tape.  It was that good. The State's expert in breath testing, amazingly, said she performed "very well."

At the Sheriff's office, she agreed to provide a sample of her breath and the results of the two tests were .203 and .202.   (The legal limit is. 08). That makes no sense to me. I've seen hundreds of videos of field sobriety tests, and compared them to the breath test results. She should have been hammered on the video. Note: This is a DWI-First with no criminal history whatsoever for a middle-aged woman.

I pointed out through testimony every known flaw the breath test machine has and the case boiled down to this: Do you believe your eyes or do you believe the machine? (Here's my stream of consciousness closing argument notes that I typed out.)  The jury believed the machine. Quickly. They didn't even deliberate 30 minutes.

I'm always a pessimist down deep while I wait for a jury's verdict. But somehow I fully expected a "not guilty" verdict on this one.  Maybe I was the only one.  But if there was ever a chance to beat a high breath test, this was the case.  Great video. Good jury (five men/one woman). Presentable and well spoken client. And technical malfunctions in the courtroom  throughout the trial that I couldn't have scripted when asserting a "don't trust technology" defense.

And now I'll second guess myself.

Edit: Hey, don't bag on the jury.  They paid attention, and they ultimately get to set their own standard of "reasonable doubt."  Jury trials are always the ultimate crapshoot.

Edit: And I won't post personal criticisms of my client. Couch it in terms of general observations and I'll let it go. I am, as always, fair game.

65 comments:

Anonymous said...

Well, you've always got softball coaching to fall back on

Anonymous said...

LOSER !!!!!!!!

Anonymous said...

I see nothing surprising about it. Wise County residents are very susceptible to making the ignorant assumption of "They got arrested, so they must be guilty."

Anonymous said...

The "don't trust technology" argument would have gotten me for sure, but definitely the difference between the tape and the results would have given me reasonable doubt. .202 is falling-down drunk.

Rage

Anonymous said...

That's Wise Co "justice" for ya. Surprised the judge didn't give her life in prison.

Anonymous said...

So, the same county that let Sharon Green walk out of a courtroom and get into a limo after helping her husband brutally murder multiple people is going to convict a woman of DWI with that flimsy evidence? Do they honestly believe that was guilty without a reasonable doubt?

Typical.

Anonymous said...

At least you tried, Thank God because Cops are not ALWAYS right as much as they think. That's Sad, I feel sorry for the Lady

Anonymous said...

So question. At the point of the breathalyzer test results should she have asked for a blood test?

Gary the Graboid said...

The most plausible explanation for the situation is that your client is a "functioning alcoholic"--one who has developed the ability to physically mask (to a certain extent)her virtually continuous state of intoxication. Most of the drinking population cannot even reach the .20 BrAC threshold and remain vertical. Those who can do so because they have had a lot of practice. Their potion of choice is generally vodka.

Anonymous said...

I don't always drink and drive, but when I do, I like to smoke marijuana as well. Stay thirsty, my friends.

Anonymous said...

The most plausible explanation for the situation is that your client is a "functioning alcoholic"

No, the most plausible is that the machine was wrong but the jury just believed it.

Try this case ten more times to ten different juries, and I bet you'd get acquittals far more than convictions.

Rage

Anonymous said...

Rage... Right on...

By the way,

Do you EMBRACE your rage??

Anonymous said...

Sorry, BG, but as a diabetic since age 22, I'm a big "trust the machine's numbers; don't trust the physical signs" guy. My glucose can be sky high and I don't feel the difference.

Anonymous said...

BG I think you wasted your time trying to fight that.

If you would post the chart, weight verses amount of drinks verses blood alcohol concentration amounts it makes sense.

Anonymous said...

Were Drugs or Alcohol involved?

Anonymous said...

Typical. Don't like the results of the field sobriety tests, then complain about how hard they are and argue that you should have gotten a breath test.. Get breath test results you don't like, then complain about how unreliable the breath test is. Get a blood test that reads over the limit and complain about violation of rights....

I am sure your feelings would change if you ever knew someone who was killed by a drunk driver...

So what would your answer be if there was a blood test and it still read .200?

Anonymous said...

It's not a "machine", it's an instrument. It's so easy for someone to blame the "machine" for showing someone was intoxicated. The fact of the matter is that the Intoxilyzer 5000 is an exceptionally acurate instrument. In addition, wherenever there is a difference between a BAC from the Intoxilyzer 5000 and a blood draw (which I'm sure everyone would agree is more acurate), the Intoxylyzer was slightly lower than the blood sample. Which means that the Intoxilyzer is almost identical to taking a blood sample, and if there is a difference, the Intoxilyzer is actually more conservation (favoring the driver, not the State).

And just because she does well on field sobriety tests doesn't mean she's not intoxicated. She might just be a functional drunk that can look more normal at higher levels than most social drinkers.

Anonymous said...

Barry, you've reduced it a bit.

The case was not only "The jury believed the machine."

The case was "The jury believed the machine. And the police officer who swore that he observed 6/6 clues for nystagmus and believed that she was drunk. And the clerk who smelled more than the usual odor of alcohol."

We all have known functioning alcoholics. I happen to know one local cop who dealt with a woman (maybe your client) whom he suspected of being slightly tipsy, and had allowed her to call for a ride home. While waiting, another cop offered the use of his PBT. She blew .200 BAC. The cop was as good as his word, though, and let her go with a ride. He had seen the nystagmus, but couldn't let himself believe that a person who was that drunk could walk and talk that well.

You tried, man. You put up a spirited defense. The officer saw what he saw and found that it was probable cause. You both did your jobs. Then the state's expert witness did his, and told the truth in his expert opinion. Then the jury did theirs, and found that there wasn't reasonable doubt. At the end of the day, you all did what you were asked to do.

And, more than likely? Justice was done.

The Devil said...

.202 is falling down drunk, no two ways about it, the machine was wrong. The "functional alcoholic" arguement is junk science, an untested, unproven hypothesis.

Stories from cops and others who claim to know "functional alcoholics" are usually embellished a bit...just like telling old war stories. Most of the time you are not going to know the BAC of the "functional alcoholic". You just assume they are shiate faced all the time and they can handle their hooch. Maybe they always keep themselves at a cozy .102. Their ability to function is not because they stay shiate faced it is because they stay buzzed.

The sad thing about this case is the police knew the lady in question, which was probably the reason they took her in anyway, despite her passing the FST's. Small town politics lead to the arrest and a small town mentality lead to a conviction!

Anonymous said...

Lessons:
If you have had a few and get pulled over REFUSE THE BREATH SAMPLE

If you know you are over the limit REFUSE THE FIELD SOB TEST

Either way get BG on retainer and take you chances with a jury

Anonymous said...

Rage is the biggest LOSER on here.

Anonymous said...

Do you EMBRACE your rage??

Only in the dark, and when my wife is out of town.

Wait. What are you talking about?

Rage

Anonymous said...

I'm going to cover your butt here.

Clarks third law: "Any sufficiently advanced technology is indistinguishable from magic." is applicable in this situation.

You have a case where the individuals concerned - the jury - actually see the condition but there is an officer with an infallible "Magic Black Box". It says the sky is green.

Result? The sky is green! You are, after all, in Wise county!

Anonymous said...

Well, I'm glad you admitted that, because NOBODY puts Baby...er...Barry... in the corner : )

Anonymous said...

At 160 pounds that's 7-8 beers 1 hour after drinking.

That's nothing for someone who likes to drink.

Get real people.

Didn't your client have an open container too?

Anonymous said...

I guess I am confused. Your client chose to drink alcohol, then chose to drive a vehicle, and got caught. We all know it's illegal. Pay the consequences.

Anonymous said...

I guess I am confused. The client chose to drink alcohol then chose to drive her vehicle. We all know it is illegal. Pay the consequences of the actions. What I find most frustrating is that we all trust the law and their machines when they are saving us, but distrust them when we get caught breaking the law.

Remote Controller said...

Breathalyzers are fallible, even the Intoxilyzer 5000. It would be interesting to see the stored results on the breathalyzer to see how precise it actually was and calibration dates.

I can name you about about 20 things off the top of my head that could cause a false positive with the machine. From the cleaning agent of the breathalyzer, perfume, inhalants, blood/breath ratio content to hormonal imbalances due to that time of the month.

Blood is the only real way to test BAC currently. Field sobriety tests are bad due to the large number of people with astigmatism and Nystagmus, chronic colds or respiratory issues, plus many more. Field tests are for one real purpose, probable cause so you can test them later to make sure the defendant drunk/sober

I have tested hundreds of people with breathalyzers (if not in the thousands). We have tried every possible way to show bad readings.... We succeeded more then we thought we could.

Anonymous said...

My general observation of certain people is that they look like they like to get their drink on.

Will that work?

FYI, I have a female cuz who has that same look. She drinks like a fish and doesn't miss a step.

You should have called me. I could have saved you some humiliation. ;}

Anonymous said...

@The Devil:

I know, it sounds apocryphal, doesn't it? But the fact is, I've personally seen the blood results of too many men and women who were fully-functioning, and weren't slurring their words, who were over .200 BAC. (%g/dL)

Me? I feel like I'm staggering and slurring words at .025 BAC. But that's me. You might be the same. But those with acute, learned, and metabolic tolerance have three types of tolerances over you and me, and we'll never keep up.

There's too much documentation of alcohol-tolerant individuals out there for it to be false.

I've personally seen individuals walk into a jail to blow in an intoxilyzer, only to be walked right back out to go to the hospital because they blew over a .25 (most jails won't take them over that level, due to the possible liability issue if the drunk is on his way up. They have a rule that if the arrestee can't walk himself in, he goes to the hospital. They don't want those kind of troubles.). But I've never heard of the hospital doing their in-house toxicology blood screen and then saying, "What are you talking about?!? This guy's only at .12!! Send him back right away!"

Due to the changes in the law, blood draws are getting more and more common. We're seeing them support the state's claim of intoxication more and more, and if the defense tries to argue the results, we can re-check the blood specimen. The state would ask that The Devil and Counselor Green take notice of Daubert[1993]("Generally Accepted") and of Robinson[1995] ("Relevant and Reliable.").

Anonymous said...

Rage,

If you listened to a certain sports radio station, you would know what I meant. Thought you might've been one of the two who make up RAGE..

Never mind.

Anonymous said...

Goes to show, if you fail at everything else in life, you can always become a cop.

Anonymous said...

Sports radio is for losers.

Rage

Anonymous said...

Who's taking me into the weekend?

Rage

Anonymous said...

Anything Radio is for losers except CB...10-4

Anonymous said...

I heard DWI's come off of your record after 10 years! Is this true?

Anonymous said...

1:57, it seems like it would be a lot easier to just not drink and drive.

Anonymous said...

Rule #1...never take a breath test, never!!
You're only incriminating yourself....drunk or not.

Anonymous said...

My mother is an alcoholic. She has never tested drunk, but she becomes a stumbling, incoherent embarrassment after one drink. Luckily she lives in a senior village where they never drive.

Could your client have requested a blood test after they have given her a breathalizer test? I question the test because if you know that you are drunk, you don't agree to a test.

Anonymous said...

Yeah and speed Radar "instruments" are infallible too....yeah right!

RPM said...

The machine says 98% of all LLDQ posters are child molesters.

Do you trust the machine now?

Wise County, the birthplace of Idiocracy.

Anonymous said...

Counselor, you were delivered a cream puff and whiffed it. Defendant may have a case for inept representation. Less blogging, more defending. Obama syndrome.

Anonymous said...

It boils doen to this: Who are you going to believe- an ordinary, everyday Joe/Jolene such as yourself or a cop who is too dumb to figure out something else to do with his wasted life?

Anonymous said...

Rage, Jerry Sandusky is taking you "into" the weekend.

Anonymous said...

6:13 has a point there. BG you know me and would absolutely agree that I have the experience to offer opinions on this matter, if you knew who I am. I don't really give a shit what any of the dumbasses on this blog think ... particularly, Rage -- God, I hate people who know everything about everything. A young lady in Bridgeport with a great deal of promise in life was given a virtual death sentence by someone just like your client in this case. I saw the video of the FSTs in her case. She did not sway, stumble or slur. Her BAC was .21, that's what the prosecution said. The DEFENSE test (yes independent test) said .20. Did I mention that both were BLOOD tests? She delivered the mail every morning and seemed perfectly normal, except that her normal was about a .20. That's what "functional" means. It's true and all you who do not believe it just don't know the facts. Sometimes the video just does not show it all. Don't know if your client in this case is one of those or not, but don't run around thinking this is an injustice. It isn't.

Anonymous said...

Rage, are you really as completely unaware of your own iritating personality as you seem to be ... or perhaps you are actually engaged in satire and are waiting for someone to point it out?

Anonymous said...

Evaluate your trial strategy, counselor. I pointed out "every flaw" of the machine, you said. Is that sort of like "my dog did not bite you, and by the way, I don't have a dog." Maybe you did TOO much. Think about it, Barry. Lose credibility with a jury ... lose the case. That will be $500.

Anonymous said...

I wonder if your clients read your blog? That's a way of saying this: you should stop talking about your own clients and cases on this forum. If I was a defendant who faced going to jail or prison, I think I would hire an attorney who was more worried about defending me than defending himself on a blog. Go find a different profession, or commit to the one you claim to be.

Anonymous said...

What a whiner you are, Mr. LL.

Anonymous said...

Hey, Rage. I'm going to answer your comments in the same logical, cerebral manner in which YOU speak .... aaaaaaaaaaaaaakkkkkkkkkkkkkkkkccccccccccccccccccccllllllllllllllldddddddddddddddooooooooooooooowwwwwwwwwwwwwwwwwwwwpppppppppppppppp. So there. I let my dog type that.

Anonymous said...

Yeah, I get it now. Post the one's that don't hit that close to home.

Anonymous said...

Seems like we traded MzChief for Rage. Turns out to be a pretty bad trade. At least MZ was intelligent.

kevin said...

How hard is it to actually establish that a particular breathalyzer does or does not work? Perhaps on the night in question this can be questioned. Is there not some certification process involved? Hell even thermometers are certified by weights and measures for food inspection. Bring in an expert and test whether the darned machine works, or if it is possible through operator error to get inaccurate readings. Isn't the burden of proof on the state to demonstrate their machine is working properly and operated by qualified persons?

Anonymous said...

We are the 98%. We are the 98%. We are the 98%. Occupy Wise County

Anonymous said...

Thats why you dont stop at Rock Island in Boyd, when the cops are hanging out in the back. Same goes for Loves and the Big Z in Rhome. The clerk will rat you out, guilty or not.

Anonymous said...

Just do not say a word if drunk and pulled over. Mum is the word!

Anonymous said...

Clearly you're doing something right, Rage, to keep frothing up the primitives. Keep up the good work!

Anonymous said...

I'm confused, the police find the words of the clerk reliable enough to follow her but not enough to prevent her from getting behind the wheel in the first place? Hypothetically, if she were drunk, got in the car then proceeded to drive head first into another vehicle killing them- what part of the blame/outrage would be directed at the police in a case like this? When given the opportunity to prevent - shouldn't they?

I don't condone drunk driving and believe when caught they should be punished, but give me a break. It seems to me both the police and the jury abused their powers in this case.

Anonymous said...

What was her penalty?

Anonymous said...

I also received a Wise County DWI. Lesson learned, don't drink and drive, better than that I no longer drink period. But I can tell you some of Wise County's finest carry a .20 BAC on a daily basis and function. I guess they are so called "functioning alcoholics too."

Anonymous said...

no one listens to rithie witt but barry...they suck, hardline rocks

Anonymous said...

Shut up Mzchief wherever you are.

Jarhead said...

I love Rage Against the Machine. Great band.

Anonymous said...

7:43p...about the mail carrier...
You said what I wanted to say.
I listen to some of that
trial. Her bac was so high it
would have killed less
experienced drinker. She got
away with it for along time
before changing a promising
young girls life forever.

Candance said...

Due to being severely uncoordinated, I'd be majorly screwed if I ever had to take a field sobriety test-drunk or sober.