DEFENSES AND TRIAL
NEGOTIATING WITH THE PROSECUTOR
One of the primary advantages of having a private lawyer is that the lawyer can talk to the prosecutor for you. Masterful negotiation skills are perhaps the most important weapon in a DUI defense attorney’s arsenal. A skilled defense lawyer can convince the prosecutor to either drop the case or give you a good plea deal.
In sensitive cases where a client has a lot on the line, we have made mitigation presentations prior to trial. These are informal presentations we give to the prosecutor (and occasionally the judge) that describe your story and your contribution to society, in order to convince the prosecutor to drop the case or offer a better plea deal. We seek to tell your story, demonstrate the positive impact you have made on your family and society–thereby showing the prosecutor who you really are–not just the person they see on a piece of paper.
In the landmark United States Supreme Court case of Brady v. Maryland, 373 U.S. 83 (1963), the Court held that the government must show the defendant any material it has that would tend to show that the defendant is not guilty or that could lessen the defendant’s sentence. The Court stressed that society’s interest in prosecuting criminals must not overcome the interest in fair trials. Because of Brady and similar rules of criminal discovery (the obligation to provide evidence to the other side), the defendant is entitled to evidence that would prove his innocence.
Should the case ultimately go to trial, one of the most invaluable benefits of having a defense attorney is the attorney’s ability to make objections. An objection challenges certain evidence from being used at trial. A skilled defense lawyer will be on his or her guard during the entire trial to make objections based on any number of grounds, from violations of the rules of evidence (e.g. if the evidence is irrelevant or inadmissible hearsay), to improper comments on the defendant’s right to silence and presumption of innocence, to constitutional violations from an illegal search or seizure.
IT IS NOT ILLEGAL TO DRINK AND DRIVE
Again, there is no law against drinking and driving; it is illegal to drive while your “normal faculties” are impaired by alcohol or drugs. Your admission to drinking while driving is usually not enough to prove a charge of DUI. The prosecutor must prove beyond a reasonable doubt that your drinking had impaired your ability to operate a vehicle and perform other normal tasks.
Independent witnesses, especially in crash cases, can be invaluable in contesting the prosecutor’s case. An independent witness could provide an impartial perspective to the jury that places the police’s account in doubt.
BANK STATEMENTS, CREDIT CARD RECORDS, RECEIPTS
Any of these records could be introduced to show that you had little or no alcohol on the night you were driving, or that you were somewhere that does not allow drinking.
If we go to trial on your DUI case, we will likely explore the benefit of retaining an expert witness to expose the DUI cop’s often biased perspective, faulty DUI investigation or combat the one-sided testimony of the breath technician or other State analysts.
A defendant has the fundamental right to challenge the credibility of any witness being used against you. If an officer has a poor disciplinary record, this can be used by your lawyer to attack the officer’s credibility and help beat the DUI case against you.
HEARSAY NOT ALLOWED
Hearsay is one of the most important, and one of the most misunderstood, rules of evidence. Hearsay essentially refers to secondhand evidence—a witness cannot testify as to what someone else said. If the defendant or the prosecutor wants someone else’s statements to be heard by the jury, that person must personally appear in court and testify. (That being said, there are many exceptions to the hearsay rule far too complex to discuss here.)
The purpose for this rule is one of reliability: the jury cannot determine the original person’s credibility, nor can it tell if the testifying witness even heard the original person’s statement right or understood its context.
PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS
An exception to the hearsay rule is prior inconsistent statements. While hearsay is usually inadmissible because of its unreliability, this exception allows for a witness’s prior statements to be introduced if it conflicts with the witness’s trial testimony, based on the theory that the hearsay is not being used to prove the case but to discredit the witness’s credibility. Thus, if a police officer or other witness’s testimony is inconsistent with his or her prior statements—whether made verbally, in a police report, or at previous court proceedings—your lawyer can bring up the statement to show that the witness can’t keep to a single story.
Joel Leppard with Intoxilyzer 8000 at BBT
THE RIGHT TO CONFRONT YOUR ACCUSERS
The Sixth Amendment to the United States Constitution states that a criminal defendant shall be confronted with the witnesses against him or her (known as the Confrontation Clause). Similar to the hearsay rule, this means that a person’s statements generally cannot be used against you unless that person appears at trial and testifies under oath. The Framers found it fundamentally unfair for such statements to be used against a defendant without the chance to cross-examine the witness and challenge his or her credibility in front of the jury.
For one important DUI-related example, the Florida Supreme Court ruled that a breath-test affidavit—the readout printed by an Intoxilyzer indicating the suspect’s BAC level—is inadmissible under the Confrontation Clause unless the breath-technician who prepared the affidavit testifies at trial.
HAVING DEFENDANT TESTIFY
Just like how you have a right to not testify, you also cannot be prevented from testifying if you choose to do so. Although you do not have to put forth any evidence to prove your innocence, sometimes testifying can help your case if the jury finds you credible or to help tell your side of the story.
EXPLAIN A REFUSAL TO SUBMIT TO A BREATH TEST
If the prosecutor is allowed to bring in your refusal, you can still explain that it was for an innocent reason. Perhaps you didn’t trust the breath instrument. Maybe you don’t trust police in general Maybe a lawyer you met at a dinner party told you never to blow even if you haven’t had anything to drink. Maybe you have a medical condition that would falsely elevate your BAC level. Maybe you were mistreated by the police, so you don’t wantThe point is, there are countless legitimate explanations for refusing a breath test.
THE BLACK BOX / EDR
Many newer models of cars come with event data recorders, also known as “black boxes,” which record information about how a vehicle is operated, such as speed and braking. In car-crash DUI cases, it might be helpful to introduce evidence from the black box to show that your car was being operated safely at the time of the crash, thus showing that you were not impaired. Conversely, introducing the other driver’s black box could show that he or she was driving recklessly, proving that you did not cause the crash.
All too often, the officers involved in a DUI case will write “cookie-cutter reports,” writing only the basic information and leaving many details out. Unsurprisingly, these reports will do little to help the officers remember what happened several months or even years later on the day of trial. How can you be found guilty beyond a reasonable doubt when the officer doesn’t even remember what happened? Sometimes we have looked up old reports and found that cops are mixing up details between reports and copy and pasting the same report over and over again. (See our case results page to see how this DUI case turned out!)
BLOWING OVER .08 DOES NOT ALWAYS EQUAL IMPAIRMENT
It’s important to remember that your BAC reflects only how much alcohol is in your system, without accounting for tolerance. Someone who is technically over the legal limit may well be fine to drive because of his high tolerance.
A caveat: the prosecutor can prove that you are guilty by showing that you were impaired by alcohol or drugs or by showing that your BAC was above the legal limit—the prosecutor only has to prove one of these. But if we get the BAC test thrown out or convince the jury that the test was unreliable, we can argue that your BAC level does not reflect your impairment.
Florida law recognizes that you should not be found guilty of DUI if you were unintentionally under the influence. In that case, your defense lawyer can raise a defense of “involuntary intoxication.” For example, it is a valid defense that you were intoxicated solely from taking medication as prescribed by a doctor. (The defense would not apply if you failed to take the medicine as prescribed, because at that point you are voluntarily disregarding your doctor’s instructions.) Another example would be if you take what you thought was ibuprofen, but it turns out that your friend switched it out for a controlled substance. See Carter v. State, 710 So. 2d 110 (Fla. 4th DCA 1998).
Florida law recognizes a necessity defense to DUI. For example, you might claim a necessity defense if you were the only one available to drive someone in critical condition to the hospital. On the other hand, the defense probably would not apply if you felt it was necessary to bring cannabis to your friend.
It is only illegal to be impaired by alcohol or certain types of drugs. If you are impaired by a medication that is not the statutory list of drugs–this is actually not illegal!
The prosecutor must prove beyond a reasonable doubt that you are impaired by alcohol or drugs, and not a medical condition. A diabetic who is suffering from low blood sugar, for example, can exhibit some of the same physical symptoms as someone who is impaired by alcohol—slurred speech, confusion, clammy skin, etc. Moreover, some medical conditions can compromise a breath test. The byproducts of diabetes appear like ethyl alcohol to Intoxilyzers, which can unfairly impact the breath test. Other conditions like acid reflux or GERD (Gastroesophageal Reflux Disease) cause alcohol to be brought up from your stomach to your mouth, “fooling” the breath test into testing your BAC as higher than it really is.
NO DAMAGE TO PROVE DUI WITH PROPERTY DAMAGE
If you are tried for DUI with Property Damage, the prosecutor must prove beyond a reasonable doubt that you actually damaged property belonging to another person. Thus, Florida courts have held that a defendant must be acquitted if the defendant crashed into a building, a vehicle, or other property, but there is no evidence of what damage the defendant caused. Likewise, one court overturned a conviction for DUI with Property Damage where the defendant damaged a truck, but no evidence established that the truck belonged to anyone but the defendant herself. See Brown v. State, 32 So. 3d 779 (Fla. 2d DCA 2010).
NEW TRIAL / MISTRIAL
If the prosecutor makes a serious enough error that jeopardizes your chance at a fair trial, your defense lawyer can move for a mistrial. If the judge grants the motion, the jury will be dismissed from the case and an entirely new trial with a new jury will be required.
If the jury convicts you of DUI, your lawyer can also file a motion for a new trial, which asks the judge to act as a separate juror and determine whether the evidence was strong enough in the judge’s mind to prove guilt beyond a reasonable doubt. If the judge disagrees that the defendant should be found guilty, the judge will set aside the jury’s verdict and hold a new trial before a different jury.