How To Win A Drunk Driving Case:
A Primer For The Layperson

by Andrew Mishlove, Esq.

THE SIX KEY FACTORS IN A DRUNK DRIVING CASE

Factor Four: Your Behavior.

Observation, and the lack of observation, of your behavior are crucial. This includes your behavior from the moment you are stopped and first observed by the police, to the moment when the observations stop, usually when you leave the police station.

Police are trained to observe. Yet in most drunk driving cases, their observations are limited to your driving and the field sobriety tests. To properly analyze a drunk driving case, all of your behavior should be considered, from the first moment you were stopped.

The field sobriety tests, to put it bluntly, are unfair. A very high percentage of stone-cold sober people cannot successfully perform the field sobriety tests. Many trained police officers, when asked to demonstrate the tests in front of a jury, will fail (or cheat, e.g. keep their eyes open on the finger-to-nose test). Jurors who attempt to do these tests during deliberation will often fail. So, it is important to consider all of your behavior, not just you field sobriety tests.

I will mention the most common field sobriety tests, but only in passing. These are the one leg stand, walk-the-line, finger-to-nose and alphabet tests (there are other, less common tests, such as horizontal gaze nystagmus). The United States Department of Transportation publishes various manuals on how these tests should be performed, as do many state and local police departments. Nevertheless, it is common for the police to depart from proper test format, or to grade on irrelevant factors. For example, a subject will be told to recite the alphabet clearly, with no mention made of speed of recitation, but will be marked as failing if the recitation is slow. Another example would be to fail a subject who sways when performing the finger-to-nose test, even though the fingertip is touched correctly to the nose. These tests are usually performed under the worst of circumstances: in poor lighting, uneven pavement, poor weather, in improper clothing, etc. Further, a subject may be arrested for failing a single field sobriety test, after having passed a series of previous tests. A skilled lawyer will be able to show the unfairness of the field sobriety tests and direct the jury's attention to all of the defendant's behavior consistent with sobriety.

The other standard observations that are made in virtually all drunk driving cases are bloodshot eyes, slurred speech and odor of alcohol. Again, a skilled lawyer understands how to show a jury that these observations are often fabricated, exaggerated, inconclusive and taken out of context. Bloodshot eyes, for example, may be due to contact lenses, cigarette fumes, fatigue or may be the subject's normal appearance. The police have usually no prior experience with a subject or a subject's voice, so the subject's normal tone or accent (especially in the Milwaukee or Chicago area) may sound slurred. Similarly, the odor of alcohol may indicate recent alcohol consumption, but cannot indicate the amount consumed.

It is necessary to show the jury the entire picture of your behavior, not just the police observations which are taken out of context.

Most of the time, police reports are silent on all observations except for the field sobriety tests. Since police are trained to write all relevant facts in their reports, their credibility will be subject to devastating challenge if they add facts to their testimony, which is not in their reports. So, if the reports are silent, it is safe to say that none of your behavior except for the (unfair) field sobriety tests evidenced any intoxication.

Factor Five: The Chemical Test.

This little primer is not intended to be a manual of how to handle a drunk driving case, much less a manual on the technology and pitfalls of breath or blood tests. The technology has improved dramatically in the last few years. But like all technology, it is only as good as the people who operate it.

Breath testing machines are subject to error if not properly operated. One of the most common errors is mouth alcohol contamination (sometimes called belch contamination, giving rise to the term, "belch defense"). These machines are designed to test the air in a subject's lungs. However, before the air can be tested, it must pass through the subject's mouth. And who knows what is in the subject's mouth? If the subject belched before the test, which can be a silent process, the mouth may contain relatively undiluted alcohol from the stomach. Hence the breath sample will be contaminated and the machine will give a false high reading. These machines are designed to detect mouth alcohol contamination: but the detection devices are fallible, and the manufacturers warn police to not rely on the machine to detect mouth alcohol contamination.

Rather, the police are supposed to perform a twenty-minute observation of the subject prior to the test, to certify that the subject did not smoke, drink, belch, etc. prior to the test. Needless to say, these observations periods are often very lax, if they occur at all.

A skilled attorney can often demonstrate the failure of the police to perform a proper observation period, by making the police testify as to the exact timing of all the completion of their various tasks, including the police reports, setting up the breath test machine, communications with other officers, etc.

That is just one example of the many different kinds of errors to which breath, blood, and urine testing are subject. The important thing is to realize that these tests are flawed and fallible. If you believe you were sober, but failed the test, there is a strong possibility that the test was false. Detailed analysis and study of the testing process are a necessity in each individual case.

Factor Six: You.

Since you've been charged with drunk driving, you must be an antisocial, sloppy, mean, nasty drunkard, right?

That's what the prosecution wants the jury to believe. And, from a practical point of view, that's what they will believe unless you negate that impression by showing them that you are a nice, decent person. You must let them know that you are not a monster, you are a human being.

For the most part, we choose the image that we convey to the world. Our clothes, hairstyle, speech patterns, gait, etc., reveal the choices we have made in cultural identification. We may be artistic individualists, and choose to appear that way, with tattoos, body piercing, iconoclastic hairstyles, etc. But, when we choose to appear as radical individuals, we also choose to send a message of an attitude of negativity toward the "straight" world, and we symbolically identify with the drug culture, even if we don't use drugs. There is certainly nothing wrong with this; but we must be aware that the jury who will judge us will also judge the message we convey by our appearance. If we send a message of rejection of straight society, we send a message of rejection of the average juror.

When you ask a juror to give you a fair and impartial verdict, have the courtesy and respect to appear before them appearing to be a person who takes the occasion seriously, and is respectful of the jury and the trial process. Be yourself, but be respectful and let it show.

How? This is done primarily through your appearance. Your must present yourself as neat, clean, hardworking, nice, honest person. If the jury likes you, they will give you the benefit of the doubt; but if the jury dislikes you, they will simply find you guilty. Juries are intelligent; they have a way of being able to smell deception. I'm not saying that you should flimflam them with a false image. But you should show them the respect they deserve. Have enough respect for their time and their authority to dress neatly and conservatively, with neat clean hair. Avoid excessive makeup or flashy clothes.

Remember my client, the nice hardworking guy, coming from his wife's wake? The jury gave him the benefit of the doubt.

Another example of a great client was the only woman in our state to own an automobile body shop. She was a no smooth and slick type of lady; she was just a working-class woman who had made herself a success in a man's world by her simple hard work. The jury believed her even though she had a breath test result of .17 (which was explained by organic solvent contamination of her blood through long-term exposure to industrial chemicals and paint; and, there was also a police videotape showing her sober demeanor).

One more example is the pretty young wife well into her eighth month of pregnancy. Or, one last example is the eighty-three year retiree, who spent his days taking care of his invalid seventy-nine year-old wife. The prosecutor had a difficult time explaining the field sobriety testing procedure for a gentleman who used a walker to get to the witness stand.

You don't need to be a special case like these examples in order to be successful. Remember to show the jury the respect they deserve. Dress appropriately. Speak clearly, and honestly. Be yourself and be the kind of person that ordinary average people will want to believe.

I am a firm believer in the truth. In order to win you will probably have to testify. You will have to look the jurors in the eye and swear to them that you are innocent. If you are lying, they will see it. But, if you are honest your words will ring true, and they will see that, too.

If you and your lawyer adequately prepare and carefully consider the Five Key Factors of a drunk driving case, you will have a fighting chance.