To be rich and famous . . .
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Tuesday, 23 January 07 - 04:10 PM (GMT) By Jeff Lahann in DWI in the News |
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Prosecutors in the Paris Hilton case have allowed her DWI charge to be pled down to reckless driving, despite the fact that she tested .08 after her arrest.
Will that happen to you in Dona Ana County? Not a chance. District Attorney Susana Martinez has made DWI prosecution one of the highest priorities in her office and refuses to allow her prosecutors to plead DWI cases down to reckless or careless driving. If you have been charged with DWI and the DA's Office accepts the case for prosecution then the only plea offer you will get is to dismiss some of the very minor traffic tickets but you will have to plead guilty to the DWI charge.
On a first time DWI then, in most cases you have nothing to lose by rejecting the DA's plea offer and challenging everything possible in your defense.
What the prosecutor doesn't want you to know
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Monday, 22 January 07 - 06:06 PM (GMT) By Jeff Lahann in General |
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David Sloane, a former police lieutenant, posted his tips on "What to do if Stopped for
As a former prosecutor, I thought I would add to his discussion by pointing out some factors that make a
- The Double Refusal. Every prosecutor's worst nightmare to take to jury trial. When a motorist refuses to take FSTs and also refuses to submit to a breath or blood test, the prosecutor is left with very little evidence to prove impairment. All that's left in most cases is some bad driving, such as speeding or weaving, and the routine "strong odor of alcohol, slurred speech, bloodshot - watery eyes" evidence which any good defense attorney can cross-examine the officer on and effectively minimize as "incriminating" evidence. While refusal to take the blood or breath test could increase the penalty for a conviction and will most likely result in a revocation or suspension of your license, there are no such penalties in
New Mexico for refusing to take FSTs. Given that FSTs are critical in the officer's determination of "probable cause" to make the arrest and, as David Sloane pointed out, serve as the best evidence against aDWI defendant at trial, you should strongly consider what, if any, benefit there is to you if you are asked to take field sobriety tests. [Update: Even police officers know better than to submit to FSTs and breath tests] - Insufficient breath samples. When the motorist has been arrested and agrees provide the breath sample but provides an "insufficient breath sample" (blowing into the tube but not long enough or steady enough for the machine to make a determination of the BAC) on the Intoxilyzer 5000/8000, the officer may believe that the motorist is purposely not blowing hard enough and will indicate a "refusal" to take the test. There are many reasons that ordinary people cannot provide a sufficient sample, such as asthma , emphysema, respiratory illness or a decreased lung capacity. Given so many defenses to rebut the officer's conclusion that simply not blowing hard enough was a conscious "refusal" by the motorist, the prosecutor's stomach churns when this is the only evidence of "refusal."
- Roadblocks, checkpoints or whatever the governmental doublespeak wants to calls them. Roadblock cases provide a number of challenges for the prosecutor. First of all, the roadblock has to comply with City of Las Cruces v.
Betancourt , 105 N.M. 655, 658 (1987), a New Mexico Supreme Court case that sets forth a list of factors that officers must apply in setting up a roadblock. While the prosecutor doesn't have to prove that each and every factor was complied with, failure of the officers to follow these rules will make their work look sloppy in front of a jury and could lead to reasonable doubt. In addition to the legal requirements that pose headaches for the prosecutor, there is the nature of roadblock operations themselves that create problems. Most roadblocks in Dona Ana County involve a fairly large number of officers setting up on a busy street at a busy time of the night. Most of the drivers coming through are not DWI but may have other issues such as not having insurance, valid registration or a driver's license. The officers are looking at a large number of people and making a variety of judgments about whom to issue citations to, whom to let go and whom to send over to a "secondary" area for further DWI investigation. People are being tested, arrested, cars are being towed off, all within the constant stream of traffic coming through the checkpoint. In all of this chaos, officers can forget important details, such as the reasons for sending a motorist to secondary and I have seen some cases where there is absolutely no mention of the officer's name who made the initial referral of the car to secondary. Finally, the fact that the motorist has in most cases not exhibited any "bad" driving behavior such as weaving, the prosecutor is stuck with only the FSTs and/or breath tests as evidence. As noted above, when either of those tests are missing from the case, it becomes very difficult to prove impairment to a jury. - Bad videos. In Dona Ana County, many patrol cars now have video cameras mounted on the dash to record the traffic stop and performance of FSTs. In many cases, the videos really don't show all of the incriminating behavior and observations that the officer noted in his report. The officer may testify that the motorist had trouble keeping balance when he or she got out of the car, but the video shows pretty much an average person having no difficulties. I had one case where the motorist got out of his car and, without looking down, was following perfectly the shoulder stripe on the road as he walked back to the officer's car. That client refused FSTs and the video was instrumental in showing the jury that he was not impaired at all.
Jeff Lahann
New Mexico DWI Lawyer launches
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Monday, 22 January 07 - 01:01 AM (GMT) in General |
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Jeff Lahann, a criminal defense attorney in Las Cruces, New Mexico, launches "New Mexico DWI Lawyer" today. This site will provide information, insight and commentary about DWI laws and issues in New Mexico and around the country.
Jeff Lahann can be reached at 505-647-4822.
New Mexico DWI Lawyer can be accessed at http://newmexicodwilawyer.terapad.com/.
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