What the prosecutor doesn't want you to know
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By Jeff Lahann in General Published: Monday, 22 January 07 - 06:06 PM (GMT) Last Updated: Tuesday, 23 January 07 - 03:47 PM (GMT) |
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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
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| DWI | Mrs. Barbara Mitera | 01/25/09 |
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Top | Reply to this Title: DWI Author: Mrs. Barbara Mitera Date Posted: 25 Jan 2009 05:46 PM (GMT) I have never, ever in all my days heard of such lax enforcement of DWI's than when I moved from the Midwest to this area (Las Cruces). People being charged with DWI 6, 7 and on and on and the leniency for these charges. Back in the Chicago area (i.e. Elmhurst, IL, McHenry, IL) if people were caught/arrested for DWI a first time, their licenses were suspended for about 6 months (depending on the severity of the situation). Any arrests after that and they would lose their vehicles. This is the way you crackdown on DWI's. What I'd like to know is this............supposing someone becomes disabled or even a fatality as a result of a person DWI and those laws have not really been enforced, can that person or his family sue the state? I certainly would. Why have laws if they're not strictly enforced.......no bribes or sweet talk either. Boy, people out here sure do things differently, including the ignoring of stop signs while talking on a cell phone. That's another issue that needs to be taken care of..........like banning the use of cell phones while driving or pulling off to the side to make a call. Since my husband and I have been here (almost 6 yrs.), we have had close calls with people using cell phones while driving at least 4 times. That is absolutely ridiculous and a downright shame! Start putting the taxpayers' monies to good use for a change. Thank you for the opportunity to vent my opinions and comments. |
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