What if I failed the Field Sobriety Tests?

It’s the middle of the night. You are driving home from a local tavern or a buddy’s house. You’re tired and looking forward crawling into your nice warm bed. Much to your surprise, you see the lights of a police car in your rear view mirror. What was a nice evening, has just turned into a nightmare. You could lose your license, your job…even your freedom because the officer suspects you of driving under the influence. You stop,  and after a few words with the officer (perhaps he smells that drink you had before you left), you are standing at roadside trembling with fear, when he asks you to perform field sobriety tests, some of which you couldn’t do on your best day. It’s One o’clock in the morning after a few drinks and you are far from your best. Are you doomed? Is it all over now? For many people this is the beginning of the end. But it doesn’t have to be.

First and foremost: This is not the time to get indignant. Be polite and cooperative with the officer. You don’t score any points by copping an attitude. The officer may take note of your good attitude in his report. He will most definitely mention it if you were belligerent. A bad attitude can affect the outcome of your case. Judges and prosecutors do not make good offers to defendants who are abusive to arresting officers. If you choose to take your case to trial, you will look like an angry drunk to the jury if you lip off to the officer.

There is quite a bit a good attorney can do, despite apparent poor performance on field sobriety tests. Through cross examination it is possible to chip away at what might appear to be a rock solid case due to field sobriety test results. The officer will undoubtedly report that your speech was slurred, deliberate or thick tongued. The officer has never met you before and has never heard you speak! Maybe you talk that way all the time. You were likely asked to walk a straight line while keeping your feet in a heal-to-toe position. You might make one mistake on this test and have it count as a failure. There are several elements to this test. You may have gotten 80% of them right yet still failed. Last time I checked, 80% was a B- not an F.  A lot of these clues can be minimized by a skilled attorney.

Get to an attorney who regularly represents the accused in DUI/OWI cases as soon after you are released as possible. Fresh recollection is always better than memory that has diminished over time. Chances are the officer has generated his field notes the evening of your arrest. The report will generally be thorough and make note of every indicator of intoxication he notices. He is trying to build a case against you from the moment you step out of the car. I very rarely see information that has been included in a police report to make the accused look innocent!  The police deserve our support for the good work that they do, but when they are placing you under arrest, despite what may be a friendly and professional demeanor, they are not on your side.

All is not lost if you failed your field sobriety tests. Most people arrested for drunk driving are ultimately convicted. However, a large portion of those people plead guilty at their first appearance. They are guaranteed a conviction. Many who hire lawyers will still be convicted. Perhaps they are facing jail time and accept an offer to plead in exchange for a shorter sentence. Maybe the deck is otherwise stacked and a plea is in your best interest. Despite the figures, a DUI/OWI case can be won-even if you failed your field sobriety tests. In fact, a large number of OWI acquittals are in cases where the officer reported failures on most if not all of the tests. If you or someone close to you has been in this position, the best advice I can give is to consult with an attorney who practices in this field regularly.

Drink responsibly and drive safely,

Eric

Cooky Case of the Day: New York Man Eats DWI Test Results.

PORT CHESTER, N.Y. (AP) — A 40-year-old man is facing multiple charges after New York state police say he tried to eat his DWI test results.
Troopers say Kenneth Desormes, of Greenwich, Connecticut, was stopped for speeding on Interstate 95 at 5:30 a.m. Sunday. After speaking with him, the troopers determined he was intoxicated and arrested him.
Desormes was transported to the state police barracks in Tarrytown to be processed. Troopers say when his breathalyzer tests results were printing, Desormes grabbed the paperwork and tried to eat it.
Desormes is charged with driving while intoxicated, obstructing governmental administration, and criminal tampering.
Troopers have not released information as to whether he was remanded to jail, released with an appearance ticket, or released on bail or bond.

How Can You be a Priest and a Lawyer?

I have made a career of defending the rights of the accused. I am also an Anglican priest and Canon Lawyer of the Diocese of Quincy (ACNA). I am often asked how I can function in both vocations. We in the church refer to someone like me as bivocational. The Church has a long history of clergy who work in the secular world. St. Paul was a tent maker. My father, also a priest, is a licensed psychologist. I think people assume that because I am a criminal defense lawyer, that I am required to do morally and ethically questionable things on a regular basis. The simple fact is that nothing could be further from the truth. Lawyers are held to a high ethical standard in the way we deal with clients, their money, their information and the courts. In fact, I find that my two vocations have a great deal of overlap.

Representing Guilty Criminals

The most common question I get is related to the guilt or innocence of my clients. “How can you defend someone you know to be guilty?” I explain that I am part of the system. I am a check on the power of the State that seeks to convict and possibly imprison my client. The beauty of our system is that it is adversarial. I read a book by Seymour Wishman years ago called *Confessions of a Criminal Lawyer. *The author, a respected attorney, surveyed other judicial sytems and concluded from personal experience that our’s is flawed but still the best on earth. That system requires able counsel on both sides of the aisle to enforce the law. In fact, I know a defense lawyer who always raises her hand during jury selection when the judge asks if anyone is in law enforcement. This raises an eyebrow or two, but clearly drives the point home. Sure, many of my clients have committed a crime. However, these people are guaranteed able counsel under our constitution and protecting their rights is a noble pursuit. As for any conflict with my other vocation, I am pretty sure it was our Lord who was crucified as a result of an unjust legal proceeding. Remember how the authorities sought individuals to bear false witness against him as Jewish law required two corroborating witnesses before a capital charge could stand.

“Publicans and Sinners”

And the scribes of the Pharisees, when they saw that he was eating with sinners and tax collectors, said to his disciples, “Why does he eat with tax collectors and sinners?” And when Jesus heard it, he said to them, “Those who are well have no need of a physician, but those who are sick. I came not to call the righteous, but sinners.”
– Mark 2:16-17

It seems that there are those who think it is somehow unseemly for clergy to spend time associating with those who have committed crimes. I personally cannot think of anything more seemly for a Christian than to provide care for these people. As a priest, and one who represents Christ in His Church, I am called to reach out to those who have separated themselves from God through their sinful behavior and lead them to reconciliation. As a lawyer, I am often called on to help the broken find their way. Those same people who are scandalized by certain elements in society must also remember that “Publicans and Sinners” show up in all kinds of places, sometimes as regular churchgoing people. Sometimes even they need to be made familiar with the voice of the Good Shepherd.

How can I, a priest represent the rights of the accused? How can I not?

Cooky Case of The Day: Man Gets DUI in Barbie Car

Here’s proof that when they say “motorized vehicle” they mean any motorized vehicle. They have made cases stick for drunk garden tractor driving and farmers driving to and from the tavern for a beer and pickled egg between fields. The Telegraph reports that an intoxicated man was arrested and lost his license to drive for operating his daughter’s Barbie Car while under the influence. follow this link to read the article.

Cooky Case of the Day: Aussie is Ingenious Drunk Driver

Here’s a link to a case about a guy who couldn’t wait until he got to the bar and invented his own “cooler car” powered by a 50cc motor.

New Feature: The Cooky Case of the Day

It occurred to me the readers of On Legal Ground might like a little levity. So in between blog articles, I will scour the web for some good legal humor. Here is today’s Cooky Case from Legal Juice

If you’re wondering “Is there a ‘right’ Mercedes to steal?” – the answer is a resounding “yes.” It would be a Mercedes that doesn’t have a lion in the back.. Per The Telegraph:

Caesar, Circus Probst’s ferocious five-year-old star, was being transported a Mercedes van when the vehicle was stolen.

The thief drove off, but abandoned the vehicle with the engine still running after crashing into a road sign. It was unclear whether the thief’s sudden awareness of the animal in the back of the van had inspired him or her to abort the mission.

The Innocent Owner Defense: Wait! That’s My Car!

Parent’s have bought cars for their kids for a long time. For our children, the ownership of that first car is a rite of passage in a young person’s life. This is certainly the case here in Southeastern Wisconsin. A good friend of mine just presented his daughter with her first car for her birthday complete with a bow on the hood.

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Parent’s usually elect to retain title to their kids’ vehicles-even when they go off to college. My parents were kind enough to take responsibility for my jalopy, a big Black 1965 Chrysler 300, when I took it to school and parked it in my fraternity parking lot. Think Animal House. That car had every appearance of being my car. But I understood that Dad was paying the bills and it was really his until I could pay for it myself. Not sure I ever did. (Thanks Mom and Dad) but who does the law think owns your kid’s Studebelchfire? At least one Wisconsin court has held that despite registration in a parents name some ownership is limited.

Here’s it played out. A young women took “her” car registered in Daddy’s name to college where it was parked for the school year. She got arrested on drug trafficking charges in the car and the State initiated an action to take it . But it’s Dads, right? WRONG! The court in State v. One 2010 Nissan Altima, 2013AP2176, District 2, 6/11/14 (not recommended for publication) held that defendant was the “owner” for the purposes of the forfeiture law. Her argued he was the “innocent owner” under § 961.55(1)(d)2., which provides:

“[n]o vehicle is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner’s knowledge or consent.”(¶¶3-7, 9).

The court rejected this argument. The court held that the registered owner’s financial stake was not more indicative of ownership than the daughter’s possession and control. Read that again. As a lawyer the case tells me that the innocent owner defense probably only applies to car thefts in the future. As a citizen, this case tells you that the government is once again willing to erode your property rights in order to achieve it’s goals. As a parent, it tells you to think twice before buying junior that car.

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