OWI-DUI-DWI

Drunk Driving Information

My OWI Story - Part 3

The First Day of Trial

The jury selection process took up most of the morning of the first day, Thursday. There was also some prelimnary information that my attorney, the prosecutor and the judge had to come to agreement on before the jury would be brought in and the trial begun. This too turned out to be important. My attorney got the judge to agree that the prosecutor could not use any statements atttributed to my wife since they would be considered hear-say. My understanding of this is that if they wanted to use her statements, they should have made sure she was properly ordered to appear, so that the jury could hear from her directly. Remember the mailed supoena? The prosecutor seemmed quite unhappy about this...maybe even a little upset. This must be good, I thought.

The First Witness - The Video Tape of My Arrest

Much to my surprise, the prosecution asked to show the video of my arrest to the jury before calling any witnesses. My attorney had no problem with this since he felt that I looked great on the video. He told me he didn't care if it was shown a dozen times to the jury. It would only help us since I don't look intoxicated on the video.

I was happy to watch it also. It was like a refresher. Remember, nearly two years had passed since my arrest.

The Prosecution Calls Its Witnesses

The prosecution presented its witnesses first. This was good. It gave me a chance to get familiar with the direct examination and cross-examination process long before I would have to sit on the witness stand. The prosecution presented 4 witnesses. They were:

the person that drew my blood the night of my arrest
the lab technician that analyzed my blood
the arresting officer
his supervisor

My attorney did a nice job on cross-examination of each of the prosecution's witnesses. He raised questions about the accuracy of the blood analysis. He illuminated that fact that the manual process of writing out the readings of the blood tests had been changed to an automated process to avoid transposition and other manual recording errors. He wanted the jury to know that enough mistakes were routinely made to warrant changing the process. It was changed between the time of my blood test and the trial. He pointed out the flaws in the roadside sobriety tests. He pointed out the administrative errors made by the police department.

My attorney's cross-examination of the prosecution's witnesses was very interesting and surprisingly entertaining. He proved to be very good at what he does. I'll skip the testimonies of the lab technician and of the person that drew my blood. They were uneventful.

The Arresting Officer's Testimony

First of all, I have to say that the officer's demeanor was very different on the witness stand then at the roadside. At the roadside, he was in charge, very confident and although sufficiently professional, unyielding. On the witness stand, he was a pussy cat.

He went through the story of my arrest upon direct examination. I think he was fairly accurate. I'm guessing he read his arrest report. He too got a chance to watch the video since the prosecutor showed it to the jury first thing. I'm thinking that helped. Remember, my arrest was nearly two years ago. Can you imagine how many stops and arrests he has made since then.

During cross-examination, my attorney asked him about his training and ability to determine someone's alcohol levels. He asked about the Horizontal Gaze Nystagmus test. This is the test where you are asked to follow the movement left and right of the officers penlight moving only your eyes and not moving your head. My attorney made it clear that this test is only reliable in a laboratory but certainly not at the roadside. He pointed out and got the officer to reluctantly agree that he had no way to measure the proper angles for administering the test. It was interesting to see how confident the officer is in his ability to determine intoxication from this test. He said he can always tell if a person is intoxicated or not from the test. The truth is that the test is only reliable in a lab and almost never reliable at the roadside.

Next my attorney asked a very clever question of the officer. You may remember from earlier in the story that I was given four roadside sobriety tests. He asked the officer if he had decided to arrest me after the first test. The officer said, "No." Then he asked him if he had decided to arrest me after the second test. The officer said, "No." My attorney said, "So after the first two tests, you had still not determined that the defendant was intoxicated. Is that correct?" The officer agreed. Next my attorney asked the officer at what point he decided that I was intoxicated and should be arrested. His answer was, "after the fourth test."

Looking perplexed, my attorney asked the officer how he decided I needed to be arrested after the fourth test when he hadn't decided that after the second test. You see, all of the points the officer gathered against me happened during the first two tests. I passed the last two tests. The officer's answer didn't make any sense. He hadn't decided to arrest after the first two tests. I do well on the last two tests, then he decides to arrest. The officer knew he blew his testimony at this point and it showed on his face. It's strange, I kind of felt sorry for him. He looked like a fish-out-of-water, very different from at the roadside.

The Arresting Officer's Supervisor

The prosecution called the arresting officer's supervisor next. I was surprised to hear this testimony. I had not seen this officer the night of the arrest. It came out during his testimony that he was there to watch (and maybe as backup). He had remained in the shadows during the sobriety tests and my arrest. He really didn't have much to say. He supported the other officer's decision to arrest but really couldn't say why. He said he could smell alcohol on me. My attorney pointed out the wind and driving rain and the fact that he was not close to me. I think the inuendo was that he smells alcohol on everyone's breath at that time of night, drinking or not.

The supervisor was the last of the prosecution's witnesses, although it became clear that the prosecution wanted my wife as a witness. I'm not sure exactly when or how he said it, but the prosecuting attorney sort of complained about my wife not appearing. My attorney immediately objected and asked to approach the bench. He insisted that the prosecutor was trying to get the jury to wonder (in a bad way) why my wife wasn't there to testify. He simply had not done his job properly and was trying to turn the blame to us. The judge scolded the prosecutor and told him not to let the issue of my wife come up again. The proscution could have had her appear had they properly served the subpoena.

The Star Witness (Me)

Talk about nervous. It's really nerve-racking to be on the witness stand when you know you are the one under scrutiny. You want to say everything just right. You want to make a good impression upon the jury. You have no idea what is in their minds. They don't know you. They don't know what kind of person you are. Do they assume the worst? Do they give you any benefit of the doubt? Who knows? I still don't know.

First my attorney took me through direct examination. I got to tell my story about the night of my arrest with his skilled and friendly guidance. This part was easy.

Just to give you a little time perspective, I took the stand for direct examination after lunch on the second day of the trial. Now it was time for cross-examination. The prosecutor began immediately to question the things I had said. He tried to make them look inconsistent with what was in the reports or what was said by others. I thought to myself, this is going to be really tough. He does this kind of thing every day and I have never done this before.

Next he pulled out a piece of paper. He brought it up to me and asked me if I had seen it before. I said that I had seen it the night of my arrest. He asked if I knew what it was. I said that I believe it was a form of questions that the officer went through with me that night. Then he directed me to a particular paragraph on the form. It was the section that explains that I have the right to have a blood test administered by a qualified person of my choosing at my expense. He asked if I understood it. I said that I did. He asked me why I did not take advantage of that right. Bingo! My attorney arose and objected. I really didn't know what all the fuss was about but I listened intently. The judge had the jury vacate the court room.

The Prosecution Blows It

My attorney really showed his skill and knowledge here. He was outraged that the prosecutor had blatantly pandered to the juror who had asked about this during the jury selection process. You see, as the defendant, I am under no obligation to testify or even defend myself. In our system of justice, it is up to the prosecution to prove the defendant guilty. The presumption of innocence is mine (although prior to this event, it sure didn't feel like it). I am under no obligation to have my own blood test taken and his question makes it appear to the jury (or shoud I say that juror) that I should have done that. Because that juror asked about this exact issue during jury selection, my attorney insisted that the jury was now tainted by the prosecution's inappropriate question and that this jury could not deliver a fair verdict.

The judge was clearly annoyed. He was annoyed with the prosecutor and once again scolded him. He was annoyed to some degree with my attorney for pointing these things out. My attorney asked that the judge declare a mistrial. The judge refused. My attorney sited some other cases that related to this issue. There was discussion between the judge and the attorneys. My attorney asked the judge to dismiss my case "with prejudice." The judge said that he would definately not dismiss the case with prejudice. The judge went to his chambers to review the matter and read some related case law. I remained seated on the witness stand. I still didn't know what this meant for me but I was hopeful. I also didn't understand the "with prejudice" request.

When the judge returned, he asked the prosecutor and then my attorney to makes statements regarding the matter. The prosecutor apologized. He was very down. He actually sat at the table with his head in his hands. My attorney was very hard on the prosecutor, essential acusing him of purposely doing what the judge told him not to. He again asked the judge to dismiss the case "with prejudice." The judge did some musing out loud. He said he never had to declare a mistrial before. He said he believes the jury is infact tainted. Then he turned to the question of dismissal "with prejudice."

It turns out that a trial dismissed "with prejudice" cannot be retried. He asked the prosecutor for his thoughts. Much to my surprise, the prosecutor told him that if the trial was dismissed, the charges would have to be refiled and we would have to start over from the beginning. Then he said that he understands that I have spent nearly two days in court and waited almost two years for the trial. Then came the magic words. The prosecutor said that he would not refile the case. He essentially told the judge that it was fine with him to dismiss my case "with prejudice". It was over!!! I won!!! Well, maybe it was more like they lost!!! But the result was the same. No fine. No alcohol assessment. Even an insurance refund would soon be on the way. Wow!!! God is good!! Justice triumphs over injustice. Thank you Lord Jesus for your grace and mercy. I certainly do not deserve such favor.

Yes, I see the hand of God in all of the twists and turns this matter took. Those without faith may not see it, but to me it is clear, God intervened on my behalf through a series of events and people. It was beautiful. I am still profoundly touched by it.

The Followup

I have made some changes. I count my drinks to be sure that I will never again be stopped with an illegal BAC. It's too expensive. Of course because I believe in goodwill and reason, I don't agree with the .08 or even .10 BAC laws. In my experience informed opinion, I am not impaired at those levels. I doubt that most people are. If my wife and I on occasion decide to go out together and enjoy some adult beverages without counting, we take a cab home. Yes, it costs a few bucks, but nothing even close to the cost of defending yourself from the trumped up charges of OWI.

Conclusion

This experience has prompted me to encourage all people of reason and goodwill to oppose the current BAC laws. There is no justification for them as they currently exist. They are morally wrong. They arbitrarily make lawbreakers out of many good citizens. Yes, we should arrest drunk drivers but not because of their BAC levels. We should arrest them when they demonstrate a clear inability to drive safely. The clear and convincing evidence can be easily captured on any officer's or citizen's video equipment. BAC levels and sobriety tests are purposely designed to wrongly incriminate the innocent. They have no place in a just society. Please write your legislators asking them to repeal the BAC laws in every state. Please never, never, never support MADD in any way. MADD has spun out of control in their lust for vengeance. They share much of the responsibility for the current injustice perpetrated upon the driving public by the over-reaching BAC laws.

Thank you!