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DUI/REFUSAL Charges Dismissed - A Case Reviewed

By David Cardon on March 13, 2017


Defendant's Charges:  DUI (Driving under the Influence of Drugs or Alcohol) & Refusal To Take a Breath Test

Court: Virginia General District Court

Facts:  Defendant was driving on a road in Virginia when police Officer #1 noticed the Defendant Driver passing him from the opposite direction at what appeared to be a high rate of speed.  Officer #1 turned around, caught up to Defendant, and continued to follow for a few miles without turning on his lights and siren.  Officer #1 continued to follow Defendant, when Defendant made a turn in a neighborhood where the speed limit reduced to 35 mph, and then to 25 mph.  Officer #1 activated lights and siren only after he noticed Defendant's car hit a dip in the road causing sparks.  Defendant pulled his car into a driveway that was a few houses down from his residence.  Officer #1 noticed a strong odor of alcohol coming from Defendant's person and placed him in handcuffs until backup arrived.  Officer #2 arrived on scene a few minutes later, after Defendant had exited the vehicle.  Officer #2, who had more experience than Officer #1, took over the DUI investigation.  Officer #2 asked Defendant to take field sobriety tests to include Horrizontal Gaze & Nystagmus ("HGN"), 9 Steps test, and One Leg Stand.  He also offered Defendant a preliminary breath test.  Defendant show impairment on all tests, however, Officer #2 noticed only 5 of 6 clues on the HGN test.  He also noticed a few clues on the other two tests, but was not specific in his notes about which clues occured when.  When they arrived at the station, the officer read the refusal notice to the Defendant 10 minutes before he began the observation period.  After the Defendant had 2 deficient samples, he gave him the refusal violation without reading the refusal warnings again. Officer #2 also never testified to the details of the deficient samples.  When asked about the weather conditions and what the Defendant was wearing, Officer #2 did not recall the details.

Motion to Strike:  After the Commonwealth rested, I made one successful and one unsuccessful motion to stike the evidence.

The first motion concerned the Refusal Charge.  I argued that the Refusal warnings were read out of order, before my client even was offered the breath test the first time. The timing, I argued, was important because the warnings could not be considered by my client when he was allegedly commiting the actual refusal.  The judge agreed and dismissed the Refusal charge.  

The second motion concerned the probable cause to arrest my client.  I had established on direct, that other that speeding, the Defendant was not driving erractically.  I also established that the officer waited to pull my client over for a substantial period of time and could not say how fast Defendant was speeding.  The judge denied my motion saying he felt the officer had testified sufficiently to the probable cause for the stop.

Testimony of Defendant:  After my motion to stike was denied,  I put Defendant on to answer three questions under oath:

1.  What was the temperture that night?  Answer: less than 30 degrees.

2. What were you wearing? Answer: Cut off shirt, no jacket without sleeves.

3. What documented medical problem do you have regarding your feet? Answer: Flat feet documented through the military. 

The only question the commonwealth asked concerned Defendant's answer when given the tests at the scene when he answered he had no medical problems.  Defendant answered that he did not think of his flat feet when asked that question the night he was arrested.

After that, we rested.

I did not even have to argue for a dismissal.  The judge asked the commonwealth attorney why he shouldn't dismiss the case for lack of evidence regarding impairment.  The commonwealth pointed out Defendant had failed the physical tests.  The judge dismissed the DUI citing lack of evidence to convict beyond a reasonable doubt.

Conclusion: This case shows that DUI/Refusal cases in Virginia are winnable, as long as you successfully attack the Commonwealth's evidence in a systamatic and effective way.  It is essential to put enough doubt in the judge's mind concerning guilt so that the evidence tips in the Defendant's favor.  

Disclaimer: Every case is different; different facts, judges, police officers and commonwealth attorneys.  The case above shows what can happen in Court.  It does not mean it will happen in every case. If you have a serious traffic case, such as a DUI or Refusal, you should speak with an attorney in your jurisdiction who knows the law and the courts to get the best legal advice. 

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