The Cessna Law Office DUI Case of the Week Blog

DUI Case of the Week for June 30, 2008

AT FIRST COURT HEARING ROOKIE PROSECUTOR SAYS, "I HAVE A BREATH TEST, I CAN'T LOSE."

Our client was driving home one night when an officer pulled her over for a burned out license plate light.  Our client admitted to drinking only one beer, but the officer had her get out of her vehicle and asked her to submit to field sobriety testing.  The officer claimed she failed the roadside field sobriety tests, and placed her under arrest for suspicion of DUI.  At the police station, she submitted to a breath test with a result of .103.  The officer then charged her with the two most serious drinking and driving offenses possible in Colorado.

THEN SHE HIRED ATTORNEY, CHRISTOPHER H. CESSNA TO DEFEND HER:

After retaining Mr. Cessna, our office got to work sending out subpoenas for internal police documents, and training records of the arresting officer.  We also obtained numerous other documents through motions for specific discovery.  After reviewing these documents Mr. Cessna found numerous flaws in the officer's investigation. 

A few weeks later, Mr. Cessna met with the deputy district attorney at the first pre-trial conference (a negotiations conference).   Mr. Cessna did everything possible to get the DA to dismiss all of the drinking and driving charges by explaining to the DA how the case was flawed, but new DA's only response was, "I have a breath test, I can't lose."  This is a common belief among new DAs.  That if they have a BAC either through a blood or breath test - that the case is bomb-proof and there's no reason why they should dismiss it. 

RESULT:

Many months later after setting the case for trial and a evidentiary motions hearing, Mr. Cessna finally had his chance to cross examine the arresting officer at the pre-trial motions hearing.  On direct exam the officer looked fantastic and the DA's case looked strong.  Why wouldn't it - it was the DA questioning his own witness on direct exam. 

However, when it was Mr. Cessna's chance to cross examine the officer, it became very clear just how sloppy his investigation had been and what a poor witness this officer was going to make in front of a jury.  In fact, it didn't take long for the officer to put his face in his hands and begin answering cross exam questions with a much less confident tone of voice than when he was answering the DA's questions.  After the motions hearing, even the DA conceded that his officer was a terrible witness and there was no way he could put this officer on the stand in front of a jury.  To the delight of our client, the DA then offered to dismiss all drinking and driving charges!   

DUI Case of the Week for June 22, 2008

CLIENT ACQUITTED AT TRIAL OF ALL DRINKING AND DRIVING CHARGES AFTER COPS RESPOND TO ACCIDENT AND FIND HER BEHIND THE WHEEL - REEKING OF ALCOHOL AND IN POSSESSION OF A BAG OF MARIJUANA AND A SIX PACK OF BEER

Officers heard a loud crash and turned the corner to find that our client had rear-ended another car at a stop light.  After confirming that the driver of the first car was okay, police contacted our client who was still behind the wheel.  The officer also found a six pack of beer with four unopened bottles and a bag of marijuana in the passenger seat.  Officers also noticed that our client had a strong odor of alcohol on her breath, bloodshot watery eyes, and slurred speech.  When they had our client get out of her car they noticed that she had difficulty standing and maintaining her balance.  Our client also repeatedly gave officers a date of birth that made no sense.

A second officer administered field sobriety tests to our client and claimed that she failed all tests. Officers then placed our client under arrest and asked that she complete a blood or breath test.  By this time, our client was getting very agitated at how the officers were treating her.  Things deteriorated very quickly with our client calling the cops "pigs" and other colorful epitaphs.  She subsequently refused any blood or breath test. 

Police charged her with the two most serious drinking and driving charges possible. 

THEN SHE HIRED ATTORNEY, CHRISTOPHER H. CESSNA TO DEFEND HER:

Because of the accident and the way she treated police, the deputy district attorney refused to plea bargain the case (not that we would have necessarily accepted any plea to a drinking and driving case anyway).  It became clear that we would fight this case all the way through trial, despite the seemingly terrible facts. 

After the first couple months and the "negotiations" stage of the case proved futile, we then set the case for an evidentiary motions hearing where the officers would be cross-examined and both attorneys would later argue issues of law to the judge about whether or not evidence should be suppressed (not allowed to be presented to the jury at trial).

At the motions hearing, we cross-examined the officers and later argued to the judge that the officer's interpretations of the field sobriety test results should be suppressed.  Furthermore, we argued to the court that the seizure of the marijuana should also be suppressed.  The court denied our motion to suppress the results of the field sobriety test, but the judge agreed with us that the marijuana was seized in violation of the constitution and granted our motion to suppress the seizure of the marijuana.  Now we were chipping away at the government's case and the jury would never hear about our client being in possession of illegal drugs, nor could our client be tried on those drug charges.   

In fact, after cross examining the officer at the motions hearing, it became clear that we stood a very good chance of showing the jury at trial that this officer conducted a very sloppy investigation.

Months later when we arrived for trial, the DA advised us that she was not going to try and introduce evidence of the horizontal gaze nystagmus test or HGN (one of the field sobriety tests) because we had revealed earlier at the motions hearing that their officer had no idea what he was doing and she didn't want the jury to see how sloppy he was in his investigation. 

After the state put on their case at trial, including the testimony of a state forensics expert who testified about how our client's behavior (including calling the officers "pigs" and other nasty names) was consistent with significant alcohol impairment. Then our client took the stand and testified.  Anytime a client testifies they expose themselves to cross exam by an experienced and determined prosecutor.  However, our client (who had been properly prepared on what to expect) stood her own and even stole the show!

RESULT:

When our case was finished being presented to the jury, and closing arguments were made, the jury adjourned and deliberated for approximately one hour until they advised the judge that they had reached a verdict.  When the jury read the verdict, the jury foreman advised the court that they found our client NOT GUILTY on each and every drinking and driving charge.

Afterwards, the jury members agreed to talk about the case with Mr. Cessna.  The jury foreman, a Catholic Priest who wore his vestment at trial advised Mr. Cessna that our cross exam of the officers and the state's expert witness revealed that they lacked any credibility.  In the end, the jury simply felt that the government's witnesses were not credible and the state did not prove their case beyond a reasonable doubt.

For over a year our client had been terrified of going to jail.  Now she could not be happier!      

       

DUI Case of the Week for June 16, 2008

U.S. SENATOR LARRY CRAIG'S HIGH PRICED LAWYERS COULDN'T DO WHAT WE DID FOR THIS CLIENT - AND THEN WE GOT OUR CLIENT'S DUI DISMISSED!

When Senator Larry Craig was arrested in Minneapolis Airport restroom for soliciting a male undercover police officer for sex, he thought it would be in his best interest to plead guilty quietly and hope the press never learned about his "wide stance" in the bathroom stall.  However, when the press did learn about his arrest and subsequent plea of guilty, he had to backpedal and put together the finest legal team to do what all experienced criminal lawyers know is an almost impossible task - withdrawing a client's guilty plea which was made knowingly, and intelligently.

In our client's case, he was driving home one evening and was stopped for speeding.  He admitted to having just one beer and the only other signs of intoxication which the officer observed were bloodshot watery eyes (they always say this), and an odor of alcohol (what did you expect - he admitted to one beer).  When the officer asked him to submit to standardized roadside tests he refused.  The officer then brought him down out of the truck and placed him under arrest for suspicion of DUI.

The officer then read our client the express consent advisement offering him a choice of a blood test or a breath test.  Our client refused both (don't do this at home kids - unless you want to lose your driver's license for a full year).   

However, since our client was not a Colorado state resident, the police department jailed him at the county jail - where he called his uncle.  His uncle was at the jail the next day to post his bond. However, even though he was two hours early before his nephew was to be arraigned, the sheriff's office would not allow the uncle to post his bond.  The deputy advised the uncle to see his nephew in the courtroom before arraignment.  When the uncle arrived in the courtroom, the security deputies refused to let him talk to his nephew - even just to tell him he was getting him a lawyer.  Our client had no idea that his uncle would get him a attorney, so when he later met with a deputy district attorney who demanded that he plead guilty to a 12 point DUI, he felt he might as well plead guilty  (the DA didn't even offer him the typical plea bargain of a DWAI for someone without any priors).

Our client then pled guilty in front of the judge and was sentenced to probation, alcohol classes, community service, victim impact panel, including fines and costs totaling over $700.00.  The guilty plea also revoked our client's driving privileges in Colorado for one year.  Once he was released from jail and was reunited with his uncle, his uncle contacted our office. 

THEN HE HIRED ATTORNEY, CHRISTOPHER H. CESSNA TO DEFEND HIM:

We explained to our new client that he was facing a very difficult, uphill battle that could get very expensive.  We advised our client that the first thing we had to try and do was to get his plea of guilty withdrawn.  This is what Senator Larry Craig's high priced lawyers could not do, because the laws in every state are written to make this near impossible so those that have "buyer's remorse" after entering a guilty plea, don't flood the courtrooms later trying to undo all of the court's work as the courts are struggling to keep their head above water with all of the new cases it now has on its docket.  That is why the laws on withdrawing pleas of guilty make this a near impossible task - even for the best lawyers.

It was then explained that even if we achieved this near miracle, that then he needed to be ready to take this case straight to trial.  There would be no meaningful negotiations with the DA, because what is the DA going to do - give him a better deal than before and look foolish?  Of course not.  The only option is trial, unless we could significantly damage the case before trial.

Once we were hired, it took over one year and numerous written motions and the threats of numerous evidentiary hearings, including calling the DA herself as a witness, and moving to have the entire DA's office removed from the case altogether, to finally get the plea withdrawn.  However, just before a third hearing was to be had on this case, the new DA simply decided to give in and let our client withdraw his plea.  Something they had refused to do for an entire year.  When we received this great news, I reminded my client that he needed to be careful in what he wished for.  Now it was "Game on!"  We were finally back at the beginning where most of our clients find themselves when they first come to hire us.

As predicted, the typical negotiations stage was virtually non-existent.  The fight was simply on, and we scheduled our case for an evidentiary motions hearing.  I informed our client well in advance that we would probably not prevail at motions.  However, many other good things can come out of motions, and that is what happened here.  This was the first time that Mr. Cessna had the chance to cross examine the arresting officer.  By the end of the hearing, it was very clear that Mr. Cessna's cross exam of the officer left the government's case weakened and caused the DA to concede that they did not want to take this case all the way to trial and have to put that officer on the stand.

RESULT:

After fighting this near impossible case for almost 2 years, and after successfully withdrawing the guilty plea, and then damaging the government's case at motions, the DA finally conceded they could not win at trial and offered to dismiss all drinking and driving charges.  The judge was even forced to refund (through the clerk's office) hundreds of dollars in fines.  Our client had worked hard to achieve his goal, and we were happy to help him do it!

   

DUI Case of the Week for June 9, 2008

LIGHTNING DOES STRIKE TWICE - AND LEADS TO CASE DISMISSAL ON CLIENT'S THIRD DUI

Our client who is an avid big game hunter was in the high country scouting out where he would hunt in the future and unknowingly drove his four-wheel drive truck into a prohibited area on federal land.  He was ultimately stopped by a federal wildlife officer who detected that our client was under the influence of alcohol.  Because of the jurisdictional issues, the federal officer contacted the local county sheriff to back her up and assist her in a DUI investigation. 

Once the deputy arrived, a DUI investigation was initiated and our client admitted to consuming numerous shots of hard liquor and beer throughout the day.  The deputy then administered the standard battery of field sobriety maneuvers and subsequently arrested our client. 

The deputy transported our client to one of the more remote towns in Colorado where he was given a breath test on the intoxilyzer 5000.  The resulting breath test showed a BAC of .101.  Since this breath test was well above the .08 legal limit, the deputy charged him with the two most serious drinking and driving offenses in Colorado.  Because of his two prior DUI convictions, our client was looking at two years in the county jail.

THEN HE HIRED ATTORNEY, CHRISTOPHER H. CESSNA TO DEFEND HIM:

Mr. Cessna immediately subpoenaed and obtained a complete history of the intoxilyzer 5000's internal performance for the previous year.  After reviewing reams of documents and intoxilyzer data, it became apparent that this machine had been malfunctioning during our client's breath test.  And the malfunctions appeared to be the result of unknown electrical surges. 

Mr. Cessna called the deputy who had administered the breath test and asked him about the time of the test.  The deputy explained to Mr. Cessna how during the client's test the area where the jail was located was at an elevation of approximately 9,000 feet above sea level, and that they had been experiencing a severe thunderstorm with numerous lighting strikes.  In fact, the deputy conceded that the power had gone out at the jail and the breath test had to be re-started twice because of electrical surges.

Mr. Cessna made further inquires about how the jail was wired (to see if it met with the written standards of the Colorado Department of Health for how Intoxilyzers must be powered).  In talking with the deputy it became clear that this small town jail had not been in compliance with Colorado Department of Health (CDOH) regulations for how a breath testing facility must be wired electrically so that the intoxilyzer can work properly. 

RESULT:

Mr. Cessna contacted the Deputy District Attorney (part-time DA) who was assigned to this case.  Mr. Cessna explained the COBRA and other intoxilyzer data to him and further explained to him how the lightning strikes had interfered with the client's breath test, thus rendering the test invalid.  The DA conceded that he had never even known about CDOH electrical and wiring requirements for intoxilyzers.  The DA then agreed that the test results were invalidated due to the lightning strikes and dismissed all drinking and driving charges against our client, despite the fact that this would have been his third DUI conviction.       

DUI Case of the Week for June 2, 2008

AFTER LOSING A "SLAM-DUNK" JURY TRIAL TO MR. CESSNA TWO WEEKS EARLIER, DEPUTY DISTRICT ATTORNEY IS OVERHEARD TELLING HIS POLICE OFFICER/WITNESS JUST BEFORE MOTIONS HEARING THAT, "(MR. CESSNA) REALLY KNOWS HIS STUFF . . . " AND THEN FABRICATES A REASON TO DISMISS THE CASE

Many new, young deputy district attorneys are told by their colleagues that, "if you have a blood or breath test" you can't lose a DUI case at trial.  This may have been the case when a young deputy DA refused to dismiss a DUI where Mr. Cessna's client had a breath test of .141.  A year later when that case finally went to trial, the jury acquitted Mr. Cessna's client of all charges. It now appears this DA seems to have changed his mind.

So two weeks later, in the same courtroom where another of Mr. Cessna's client's had to fight his case, the DA was apparently meeting with his police officer witness out in the hallway before the motions hearing, and unaware that Mr. Cessna's client was there early and sitting within earshot of the DA.

This particular client had been arrested about nine months before after being stopped for weaving and ultimately arrested for suspicion of DUI.  A subsequent breath test resulted in a reported BAC of .184, and he was charged with the two most serious drinking and driving offenses in the state of Colorado.

THEN HE HIRED ATTORNEY, CHRISTOPHER H. CESSNA TO DEFEND HIM

As is normal, the DA initially refused to even offer a plea bargain due to the high BAC.  However, Mr. Cessna's client could not lose his license for a full year if he pled guilty to the DUI charge.  So he was forced to set his case for an evidentiary motions hearing and a jury trial.

At about the nine month mark, the day of the motions hearing arrived.  Mr. Cessna's client was early for the hearing and sitting in the hallway when he overheard the DA who was prosecuting him (and apparently didn't recognize him) tell his police officer witness that, "Mr. Cessna really knows his stuff . . . . " 

RESULT:

When Mr. Cessna arrived, the client told him what he had overheard.  However, given the high BAC, even Mr. Cessna did not expect what happened next.  When Mr. Cessna and his client walked into the courtroom expecting to go forward at motions, the DA sheepishly walked up to Mr. Cessna and asked if his client would accept a "weaving" plea in exchange for all other drinking and driving charges being completely dismissed ("Weaving" is one of the most minor of all traffic infractions).   

The DA further stated that the Police officer had just informed him that he was not certified to operate the intoxilyzer 5000 on the day of the client's arrest.  However, even though Mr. Cessna knew this wasn't true (because he had subpoenaed documents months earlier proving otherwise), he was not about to argue when such a fantastic deal was being offered.   It seemed apparent that both the DA and the officer were looking for any excuse not to go to a motions hearing and trial. 

As a result of the DUI charges being dismissed, the client saved all of his trial fees, and didn't have to pay thousands for an expert to testify at trial.  But most important, he kept his driver's license and avoided a drinking and driving conviction!      

DUI Case of the Week for May 26, 2008

CLIENT ARRESTED FOR BOTH DUI and BUI (Boating Under the Influence).  BOTH CHARGES DISMISSED AFTER MOTIONS ARE FILED ALLEGING "OUTRAGEOUS GOVERNMENTAL CONDUCT" BY PARK RANGERS

Our client, who had a prior DUI conviction was out boating with friends at a major Denver area reservoir.  While boating near the dam, our client and his friends engaged into a yelling match with other boaters.  The other boaters called 911 and reported that our client and his party were intoxicated and acting in a reckless manner. 

After providing a description of the boat and the people aboard, park rangers were waiting for our client at the boat ramp.  Rangers contacted our client as he moored his boat, and while his friend went to the parking lot to back down their truck and boat trailer in order to trailer the boat. 

The lead park ranger then ordered our client to get in his truck and trailer his boat.  Once he backed his truck and trailered his boat, Rangers ordered him out of the truck, arrested him, and subsequently charged him with DUI.  Our client subsequently submitted to a breath test which was over the .08 per se level, but below .10 (the limit for BUI).  Despite being under .10, Rangers also charged him with BUI.

THEN HE HIRED ATTORNEY, CHRISTOPHER H. CESSNA TO DEFEND HIM:

Once our office entered on the case, and reviewed the initial discovery, Mr. Cessna found numerous inconsistencies and misrepresentations of the facts in the lead Ranger's report.  In her report, the lead Ranger claimed she had no idea that our client may have been under the influence of alcohol when she first contacted him.  Furthermore, in her report, the lead Ranger also claimed it was other officers at the scene that ordered our client into the truck and told him to trailer his boat.

However, after Mr. Cessna subpoenaed the 911 audio tapes, it became clear that this ranger knew prior to making contact with our client that he may have been under the influence.  It also became clear that it was the lead Ranger who ordered our client to operate his vehicle after making personal contact with him. 

At the Department of Motor Vehicle Hearing (DMV), the lead Ranger who was subpoenaed to testify, was cross-examined by Mr. Cessna and forced to admit under oath that her written reports were fabricated.  The DMV Hearing Officer (judge) immediately dismissed the driver's license revocation action against our client.  Now our Client still had to fight his criminal case. 

At the first criminal hearing, Mr. Cessna rejected the "offer" made by the DA to have our Client plead guilty to a DUI, and immediately filed various motions challenging the arrest and the admissibility of the evidence subsequently obtained by Park Rangers (breath test evidence).  One written motion entitled, "MOTION TO DISMISS DUE TO OUTRAGEOUS CONDUCT OF PARK RANGERS," alleged, among other things that:

1. Under Colorado Revised Statutes (CRS), 18-1-603, Park Rangers were criminally accountable as principles to a crime due to the fact that they knowingly and intentionally promoted and facilitated the commission of the DUI and DUI per se by aiding, abetting, and encouraging (our Client) to drive while intoxicated.
2. Furthermore, under CRS 42-4-1703, Park Rangers were a "party" to the crime of DUI and DUI per se, for aiding and abetting in the commission of our Client's alleged DUI and DUI per se.
3. Moreover, that the lead Ranger fabricated official government documents and entrapped the defendant.

RESULT:

After receiving these written motions, the Deputy District Attorney began their own investigation of the incident and dismissed all charged against our Client on the day motions and sworn testimony was scheduled to be heard in front of the judge.  The arresting agency then informed Mr. Cessna that they were also conducting a formal investigation of the lead Ranger's actions in the matter.   

   

   

DUI Case of the Week for May 19, 2008

.340 BLOOD ALCOHOL LEVEL (BAC) WITH MAJOR ACCIDENT AND INJURIES DISMISSED BY DISTRICT ATTORNEY!

Thankfully, most people would not be able to obtain a BAC as high as .340.  People who try to drink that much usually first slip into a coma or die.  However, our client who had a prior DUI conviction, was 4-wheeling in the mountains with a friend when she rolled her jeep down the side of a mountain.  The jeep rolled numerous times before coming to rest at the bottom of a canyon.  Fortunately, no one was ejected, nor did anyone suffer serious bodily injury or death.  Due to the rugged terrain local search and rescue crews had to medically evacuate both our client and her passenger.

Once at the hospital, police investigators arrived and initiated a DUI investigation.  As part of that investigation they had blood drawn from our client.  The officer then took custody of the blood kit from the phlebotomist (blood drawer) and placed it into evidence.  The blood kit containing two vials of our client's blood was then sent to the Colorado Department of Health (CDOH) for legal and scientific analysis.  The state forensics lab tested and analyzed the blood on a machine called a gas chromatograph.  The result was a .340 BAC.

Upon receiving the results of the blood test, the district attorney added additional charges against our client.  Our client now faced numerous drinking and driving charges and was looking at more than two years in jail.

THEN SHE HIRED ATTORNEY, CHRISTOPHER H. CESSNA TO DEFEND HER:

After being retained, we were astounded and saddened to see that our client had such a high BAC.  However, we also had to question whether such a high BAC was possible considering how cognizant the police report described our client.  To be safe, we immediately encouraged her to enroll herself into intensive alcohol treatment and therapy - preferably AA after a 30 day in-home treatment program. 

Then we went to work on investigating her case.  After receiving reams of data and records on how the blood test was conducted, including how the the blood kit was handled, we started to see some very alarming issues.  After digging and digging, it became clear that there were numerous violations of Colorado Department of Health Regulations concerning the preservation, storage and testing of blood samples. 

In short, it appeared that our client's blood samples may have actually been creating its own alcohol through a process called "neo-genesis" formation. This is a biological process where, under the right conditions, a bacteria known as "Candida Albicans" ( basically, yeast) is allowed to grow and ferment despite the presence of chemical preservatives in the blood vials.

As a further investigatory tool, our office had a Subpoena Duces Tecum (subpoena to produce tangible evidence or documents) served on the investigating police agency.  The contents of the subpoena follow below:

1. All Security Access Log Sheets to the police agency’s evidence refrigerator where blood kits are stored prior to mailing or transportation to laboratory.  You should include all security access log sheets for 30 days prior and 30 days after Ms. XXXXXX’s arrest date of August 26, 2007. No records of any kind should be excluded (your agency case number 07-XXXX);

2. All Temperature Log Sheets to the police agency’s evidence refrigerator where blood kits are stored prior to mailing or transportation to laboratory.  You should include all temperature log sheets for 30 days prior and 30 days after Ms. XXXXXX’s arrest date of August 26, 2007. No records of any kind should be excluded (your agency case number 07-XXXX);

3. All Sterilization or Cleaning Log Sheets to the police agency’s evidence refrigerator where blood kits are stored prior to mailing or transportation to laboratory.  You should include all sterilization or cleaning log sheets for 30 days prior and 30 days after Ms. XXXXXX’s arrest date August 26, 2007. No records of any kind should be excluded (your agency case number 07-XXXX);

4. All Chain of Custody Log Sheets kept by the XXXXXX County Sheriff’s Department documenting the collection, storage, and subsequent transportation and/or mailing of Ms. XXXXXX’s evidential blood test kit obtained after her arrest date of August 26, 2007. No records of any kind should be excluded (your agency case number 07-XXXX);

5. All department standard operating procedures, manuals or written polices concerning the collection, storage, and security of any type of evidence, including blood kit evidence used by the XXXXXX County Sheriff’s Department which were in place on August 26, 2007. No records of any kind should be excluded (your agency case number 07-1238);

6. The serial number, record of date of purchase, manufacturers make, model, specifications, and description of the refrigerator used by the XXXXXX County Sheriff’s Department on August 26, 2007 for the storage and security of Ms. XXXXXX’s evidential blood kit stored before transportation to the laboratory testing facility;

7. The serial number, record of date of purchase, manufacturers make, model, specifications, and description of any other refrigerator owned or used by the XXXXXX County Sheriff’s Department on August 26, 2007 for the storage and security of evidential blood kits stored before transportation to the laboratory testing facility;

8. Any and all other documentation relating to the purchase, maintenance, repair, access, temperature maintenance, sterilization, or periodic cleaning of the above-referenced evidence refrigerator which does not otherwise fall within the descriptions outlined above;

RESULT:

As a result of this subpoena being served, the deputy district attorney contacted our office and explained to Mr. Cessna that the county sheriff did not want to have to produce the requested documents because it would expose some embarrassing deficiencies in how they store and handle evidence.  The DA further stated that the county sheriff had never before received such a subpoena and was thankful, because the subpoena opened their eyes to the requirements and standards of evidence collection and storage required by the state department of health, but which they had failed to maintain.

Despite the major aggravators involved, the DA then offered to dismiss the case against our client if our office withdrew the subpoena from the Court file (thus taking it out of public view).    That was a deal too good to pass up, and our client got her .340 case dismissed.  Furthermore, she is also benefiting from alcohol therapy and treatment.

 

DUI Case of the Week for May 12, 2008

CASE DISMISSED BY DISTRICT ATTORNEY JUST PRIOR TO MOTIONS HEARING:

Our client, a major college athlete, decided to drive one night because his friends were "drunker" than he was.  While driving back to campus, our client ran through a stop-sign without even stopping.  What our client didn't know was that a police officer was right behind him the entire time. 

Upon contacting our client, the officer smelled alcohol and observed other indicia of impairment, including an admission from our client that he had been drinking.  Due to the numerous indicators of impairment, the officer requested that our client submit to standardized field sobriety tests (SFSTs), including Horizontal Gaze Nystagmus (HGN), the Nine-Step Walk and Turn (WAT), and the One-Leg Stand (OLS).  The officer used the client's performance on these three tests to justify an arrest for suspicion of DUI.  After placing our client under arrest, the officer gave him a choice between a breath or blood test.  Our client elected a breath test on the intoxilyzer 5000, which produced a Blood Alcohol Content (BAC) of .172.

The police then charged our client with the two most serious drinking and driving offenses in Colorado, with each charge carrying up to one year in jail. 

THEN HE HIRED ATTORNEY, CHRISTOPHER H. CESSNA TO DEFEND HIM:

Upon being retained, our firm subpoenaed hundreds of pages of documents, including the officer's training records, background documents and reams of data detailing the internal workings of the intoxilyzer 5000 for 90 days before and 90 days after our client's breath test.  After pouring over the scientific data on the internal performance of the intoxilyzer, Mr. Cessna saw some very troubling trends indicating that the breath machine was malfunctioning on a regular basis.  Mr. Cessna also concluded that the officer's administration and interpretation of the SFST were flawed and therefore rendered them invalid and unreliable as evidence. 

Because an attorney can't testify for his client, it is more effective to hire an expert witness who is much more qualified to analyze the scientific data (in this case on the intoxilyzer) and write an opinion letter about his findings.  These opinion letters also summarize what the expert would testify to if the case went to trial, and the expert were to take the stand. 

Our client allowed us to hire an expert and the reams of documents were forwarded for his analysis.  In a detailed 10 page report, our expert used graphs and the government's own hard data to clearly illustrate how the intoxilyzer 5000 was malfunctioning on the night of our client's breath test, thereby rendering the .172 breath test invalid. 

RESULT:

Even though this powerful expert opinion letter was given to the DA prosecuting this case early on in the process, the DA would not initially dismiss the case. In fact, the DA refused to even offer a plea bargain to a lesser drinking and driving offense.   Because the DA refused to dismiss the case, our client was forced to set this case for motions hearings and a jury trial.  On the day of the motions hearing, the DA finally conceded the case and dismissed all charges against our client.         

DUI Case of the Week for May 5, 2008

JURY TRIAL WIN:

A well-intentioned citizen driving down a major highway called police on his cell phone after seeing our client swerving in and out of his lane of travel and driving dangerously.  The citizen followed our client, all the while describing for police how dangerously our client was driving and his direction of travel.  The citizen continued to assist police even as our client stopped in front of a house in a residential neighborhood, stumbled out of his vehicle and went inside.

The citizen parked away from our client and kept speaking to the police until officers arrived.  Upon arriving, officers entered the house to find the owner in his back yard.  The owner told police where they could find his friend.  The officers then found our client behind a bar in the basement pouring himself a drink.

Police described our client as swaying, slurring his speech, and having bloodshot, watery eyes.  According to police, our client failed all of the standard field sobriety tests and also admitted to several drinks earlier in the evening.  After being arrested, our client elected to provide a breath test and a result of .184 was obtained from the intoxilyzer 5000. 

Our client was then jailed and charged with two of the most serious drinking and driving offenses in Colorado.  Because he had a prior conviction for DUI, our client was looking at up to one year in jail including other penalties and fines.

THEN HE HIRED ATTORNEY CHRISTOPHER CESSNA TO DEFEND HIM: 

Because of the aggravating factors of his case the district attorney would make no offers and we set the case for trial. 

Before jury trial, Mr. Cessna filed several motions on his client's behalf, but the most strategic of which was, a "MOTION TO HAVE DEFENDANT SIT AWAY FROM THE DEFENSE TABLE DURING THE IDENTIFICATION PHASE OF TRIAL (and next to his identical looking friend who had been in the house when police arrived)."  The Court granted the motion and the trial commenced shortly thereafter.

At beginning of the state's case-in-chief, the state prosecutors called their first witness - the citizen driver, to the stand.  When it came time for the state's witness to point out and identify the driver for the record (a critical element to a successful prosecution), he only saw Mr. Cessna at the Defense table and then saw our client and the client's friend sitting next to each other in the back of the courtroom.  The witness then truthfully conceded that he could not positively identify the driver. 

The state's prosecutors sought a mis-trial and Mr. Cessna objected.  However, on a renewed motion for a mistrial by the prosecutors, the court inexplicably granted the mis-trial without first making the necessary findings of "Manifest Necessity," thus exposing our client to double jeopardy.  Over our objection, a new jury trial date was scheduled and Mr. Cessna immediately filed written motions seeking dismissal of all charges since jeopardy had attached with the swearing in of the jury and therefore exposing our client to double jeopardy violations, additional stress, and embarrassment. 

RESULT:

Upon receiving our motion for dismissal, and after researching the relevant law of mis-trials, the Court must have realized it erred in not first making the required findings of manifest necessity and corrected its error by forever dismissing the charges and the case against our client.