The government enjoys many advantages in any criminal prosecution – not the least of which is virtually unlimited resources in money and manpower. When the government draws a bead on one of its citizens, the experience can be terrifying for that citizen. The vast majority of DUI defendants are not “criminals;” rather, they are ordinary hardworking and law-abiding citizens caught up in the criminal justice system.
While the government enjoys many advantages in a criminal prosecution, one advantage your defense team at The Law Offices of John Phebus has is that we will always know our case better than the prosecutor. This superior knowledge comes from thorough pretrial investigation. In all cases set for trial, your Glendale defense team performs the following:
- Physical Inspection of the Arrest Site
- Our attorneys will visit and photograph the point of the arrest. Were the field sobriety tests administered on a smooth, dry and level surface as required by the National Highway Traffic Safety Administration? Or, does that surface resemble the surface of the moon? Was the walk-and-turn test administered on a designated, visible line or was this exercise administered on an imaginary line? If the line was “imaginary,” was it a line that the officer was “imagining” or a line that the defendant was “imagining”?
- Interview Prospective Defense Witnesses
- Often there will be persons available who can help the defendant’s case. For example, the government’s breath testing machine says your blood alcohol level was a .161. You are a 165-pound male. For you to legitimately have a .161 blood alcohol level, you would have had to consume 6 to 7 standard drinks. Three people who were with you on the night of your arrest distinctly remember that you only consumed two beers!
- Other witnesses may have been passengers in your vehicle immediately before you were stopped. These people might be able to testify that you were driving in a manner consistent with that of a sober and prudent person. These people need to be interviewed, and those interviews recorded and transcribed, while the events are fresh in their mind. In turn, these prospective witnesses can help us raise a reasonable doubt at your trial. When given the choice of believing a flesh and blood human being versus a machine, many people are inclined to disregard the machine.
- Interview of Government Witnesses
- The crime of DUI is a crime of opinion – the opinion of police personnel. While it is seldom a good idea to mount a frontal assault on a police officer because of the possibility that the jury will feel sorry for the officer and hold the aggressiveness of defense counsel against the Defendant, it must be established in the minds of the jury that the police officer is a human being and that human beings, notwithstanding their professionalism and training, can and do make mistakes.
- Accordingly, it is necessary to interview all involved police personnel addressing matters such as: Absence of driving behaviors suggestive of alcohol impairment immediately before the stop; timely response to police emergency lights; exit from the vehicle; timely production of requested documents; absence of any indication of mental impairment in response to preliminary questions; training and experience regarding DUI investigations generally and field sobriety tests in particular; etc.
- As in the case of defense witnesses, the interviews of all involved police personnel must be undertaken as soon after the arrest as possible and these interviews must be recorded and transcribed for impeachment purposes at trial in the event the officer changes his story.
Pretrial Motions To Dismiss And/Or Suppress Evidence
A criminally accused person enjoys certain rights under the 4th, 5th, 6th and 14th amendments to the Constitution of the United States and equivalent state constitutional provisions. Your defense team will file all appropriate pretrial motions for purposes of protecting your rights and limiting the governments evidence against you at trial. While not an exhaustive list of available pre-trial issues, our lawyers will focus their inquiry on:
- Did the police have reasonable suspicion to conduct their investigatory stop?
- Did they have probable cause to effect an arrest?
- Were you advised of your right to remain silent?
- Were you advised of your right to counsel?
- Was the Admin per se/Implied Consent admonition properly and timely administered?
- Was the state’s blood/breath evidence obtained and analyzed properly?
Most DUI trials are tried before a six-person jury. If you are charged with an aggravated DUI, your case will be tried before an eight-person jury. In a criminal case, the jury’s verdict must be unanimous.
- Our job at trial is to attack the government’s case on all fronts for purposes of creating a reasonable doubt in the minds of the jury. The primary focus in a breath test case will usually be an attack on the government’s breath testing machine.
Remember, the government’s breath testing device – the Intoxilyzer 5000 and 8000 – are known to be inaccurate and improperly maintained. In June of 1999, Dr. Kurt Dubowski, one of the foremost experts in matters pertaining to forensic alcohol testing, characterized Arizona’s record keeping practices for their breath testing devices as “Terrible Science.” Theses breath testing devices are similar to “Scud Missiles” – They are notoriously inaccurate and they injure innocent people!
- The machine is far from infallible and is subject to attack on a number of fronts including inherent margin/range of error; blood-to-breath partition ratio; variations in expired breath temperature; absorptive/post-absorptive phase of the alcohol metabolism cycle; nonspecificity for ethyl alcohol; gradual failure; intermittent error; and warranty disclaimers by the manufacturer. Your law defense team is knowledgeable and experienced in attacking the government’s machine and all areas of the government’s case.