Sometimes it’s not about “not guilty”

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Sometimes with a good DUI defense it isn’t about get­ting a “not guilty.” Sometimes it’s about explain­ing to the jury how poorly the gov­ern­ment did their job, and let them decide an appro­pri­ate out­come for a case.

Recently I had the oppor­tu­nity to work on a DUI case involv­ing the US gov­ern­ment against a mem­ber of the mil­i­tary. This is was first DUI trial in sev­eral years on that par­tic­u­lar mil­i­tary instal­la­tion, made even more unique for sev­eral rea­sons. This was the defendant’s first DUI charge, there was no acci­dent, no fight­ing, no other aggra­vat­ing con­di­tions, just the DUI charge result­ing in a court-martial hear­ing. It was the “pub­lic defender’s” first DUI trial, and prob­a­bly a first for the government’s lawyer as well.

The mil­i­tary police offi­cer who per­formed the inves­ti­ga­tion bragged about his 20 to 30 DUI inves­ti­ga­tions over the last six or seven years, unaware how lit­tle prac­ti­cal expe­ri­ence that trans­lates to com­pared to your aver­age “civil­ian” cop. Many police agen­cies in larger met­ro­pol­i­tan areas would prob­a­bly con­sider 20 to 30 inves­ti­ga­tions a light month, if their pri­mary focus is DUI enforcement.

The mil­i­tary police officer’s lack of expe­ri­ence was eas­ily exposed dur­ing a pre-hearing inter­view with the defense. He didn’t know what type of train­ing he received on DUI field sobri­ety tests (mis­tak­ing them for State stan­dard­ized field sobri­ety tests), which included the HGN, walk and turn, one leg stand, fin­ger count, alpha­bet, and the fin­ger to nose. The train­ing he had actu­ally received was the National Highway Traffic Safety Administration (NHTSA) Standardized Field Sobriety Tests course, which includes the HGN, walk and turn, and the one leg stand.

During the actual stop and inves­ti­ga­tion, the offi­cer didn’t indi­cate per­form­ing any of the pre-HGN tests designed to deter­mine if there might be a med­ical cause for any nys­tag­mus observed dur­ing the test. He demon­strated that he whipped the stim­u­lus at about dou­ble the speed a trained police offi­cer is sup­posed to, per­form­ing only half the num­ber of required sweeps. Furthermore, the amount of time the offi­cer held the stim­u­lus to ensure observed nys­tag­mus was “dis­tinct” was under the required 4 sec­onds (both by demon­stra­tion and by his own ver­bal expla­na­tion of the test dur­ing inter­view and testimony).

Complicating the FST fur­ther, the police offi­cer added his own per­sonal instruc­tions dur­ing the walk and turn test. If fol­lowed cor­rectly, his faulty instruc­tions forced the sub­ject to take an incor­rect num­ber of steps dur­ing exam­i­na­tion, always end­ing on the wrong foot. The offi­cer then counted the incor­rect turn and incor­rect num­ber of steps as two sep­a­rate clues, even though one was caused by the other.

Making mat­ters worse, the sub­ject couldn’t com­plete the one leg stand. There was no argu­ing about it. That is until an exam­i­na­tion of the police officer’s report showed sub­ject had a bad achilles ten­don and a bad knee at the time of the test.

Combine all of this with an incom­plete depri­va­tion period before the breath test and breath test oper­a­tor was not present to tes­tify, and I thought the results would have been kept out at trial. I was wrong. The mil­i­tary has their own require­ments (or lack of) for such tests to be admit­ted. I was a lit­tle sur­prised, but the judge allowed it all. He *almost* admit­ted the PBT results, even­tu­ally agree­ing to only allow the gov­ern­ment to say a PBT was admin­is­tered road­side, and not talk about the results. When in Rome…

The defen­dant pled guilty to the charge of DUI, but was going through the court-martial hear­ing to have the jury decide his pun­ish­ment. The government’s offer was some­thing akin to the civil­ian equiv­a­lent of “the max”: a long time in jail, being busted down some seri­ous ranks, and assigned extra duty. So I offered what help I could by prepar­ing a sug­gested set of ques­tions with the defense attor­ney to show the jury that the mil­i­tary police in this case did not fol­low the train­ing they had received.

I may not be famil­iar with mil­i­tary pro­ce­dures, but I know enough about the mil­i­tary to know they are all about fol­low­ing pro­ce­dure and train­ing. This case showed the jury that the mil­i­tary police weren’t fol­low­ing their train­ing. Training I was famil­iar with because I had the same NHTSA SFSTs train­ing, and had received the same train­ing on oper­at­ing the breath test­ing device used in this case. The ques­tions I penned helped the defense show the police didn’t fol­low their own train­ing when it came to field sobri­ety tests and admin­is­ter­ing the breath test. The ques­tions for the government’s crim­i­nal­ist also got them to admit they could not sup­port the breath read­ing obtained.

In the end the jury came back with an appro­pri­ate pun­ish­ment. Both the defen­dant and the defense attor­ney were happy with the con­clu­sion of the case. This was just another case where trial could have been avoided if there was a suit­able plea bar­gain offered by the government.