Trial Shenanigans

A while back I was in a jury trial representing a client charged with driving under the influence of alcohol in violation of Vehicle Code section 23152(a) and (b). The issue at trial was whether or not my client drove. The sworn testimony of the two investigating officers was that they witnessed my client stumble out of a 7Eleven holding some beer, climb into his car, and then reverse about five feet. The officers testified that as they were walking up to my client’s car my client saw them and stopped driving.

Remember that the charge of driving under the influence requires… driving. Shocking, I know. You can use “volitional movement” instead of the word “driving” if you want. Essentially the car needs to move. There is more to it and this is far from being legal advice. But for this story that’s all you need to know.

So these two officers testify under oath (at more than one proceeding) that they observed my client reverse the car five feet before stopping him and placing him under arrest for driving under the influence.

Either immediately prior to trial or in the middle of it, an audio recording was disclosed to me that captured a conversation between the two officers while they were packing up gear on scene - after my client had been arrested. Below are two excerpts from trascripts of that recording:

Officer A: “So are we leaning towards DUI or 647(f) [public intoxication]?”

Sergeant P: “DUI.”

Officer A: “DUI?”

Sergeant P: “Yea, he pulled the car out. I was…”

Officer A: “You saw the…”

Sergeant P: “Yea.”

Officer A: “OK.

Sergent P: “Yea.”

Subtle but significant. The officer’s intonation is revealing but not captured by the transcript. Let’s keep going:

Sergeant P: “I knew he was gone.”

Officer A: “Holy crap.”

[crosstalk]

Officer A: “So what driving did you see?”

Sergeant P: “Well when I was pulling up. He was backing out. “

Officer A: “Oh.”

Sergeant P: “Started backing out.”

Officer A: “Ok.”

And here’s a transcript from an earlier suppression hearing:

Assistant District Attorney: “And did he move his car?”

Officer A: “He did.”

Assistant District Attorney: “Um. As he moved his car did you observe anything that indicated to you that he saw you?”

Officer A: “As he moved his car, we were approaching on foot and I saw him look out his driver side window and see us, at which point he stopped moving his car. Stopped backing up.”

Look, draw your own conclusions from this. Why would Officer A ask about a 647(f) if he saw my client driving? Why would Officer A ask Sergeant P what driving he saw if Officer A had seen the driving himself? Why was the recording handed over so late? How can jet fuel melt steel beams? I have a lot to say about this last question but I won’t do it here.

A reasonable conclusion that I can draw from the testimony and recording is that at least one of these fellows didn’t see my client driving but testified under oath that he did. Thankfully seven members of the jury agreed that the case involved some serious shenanigans on the part of law enforcement – at least that’s what I can infer from the 7-5 split for not guilty (BA was 0.22 and I conceded impairment, so the sole trial issue was whether or not the client drove the vehicle.) Am I proud of 7-5 for NG under these circumstances? No. Not really. Could a better attorney have walked the guy? Maybe. Nice to know that at least 7 members of the jury confirmed that what I heard in the recording was accurate.

The client was subsequently found NOT GUILTY using what I’ll call the Helmandollar protocol. It basically means that the DA agreed to a court trial, submitted no evidence, and let the judge find my client not guilty of driving under the influence. This was done in order to restore my client’s driving privilege without the need for him to take a DUI class. That was cool, I guess. The other stuff, not so much.