Facts of a Hypothetical Case
Client leaves bar after six hours. It is midnight. He is with two friends and is headed to his house two miles away down a four lane highway. After pulling off the main road, police vehicle overhead lights are flashing. He stops. Officer asks him where he has been, whether he has been drinking and orders him out of the car when told the name of the bar and that he had only had a few. Client asks if he is under arrest while remaining in the car. Officer says he is “investigating.” Client says does not have to get out of the car unless under arrest and refuses to exit the vehicle, stating that the officer may investigate and that he will cooperate otherwise. Officer and others physically drag Client out of the car, cuff him and put him on the ground face first.
1. Did the officer have probable cause to believe that Client had been driving under the influence and to make the stop?
2. Did the law require Client to get out of the car as long as he had not been arrested?
3. What use of force was justified under what circumstances under these facts?
4. Did Client resist arrest or obstruct the Officer unlawfully, so as to be charged with resisting and obstructing as well as DUI?
1. The Officer states in his reports, obtained by my offices from the Prosecuting Attorney, that he was driving down the main road, when he saw my Client’s vehicle pull out, proceed down the road, crossing the line on the right and left several times each. But, the road has a concrete center divider on the left side of the lane for all but a short distance along the route. Did Client swerve back and forth, crossing 7 to 8 times the lane lines on the right then the left? Did he run across the concrete barrier? Or, had the Officer actually been staking out the bar, knowing that Client’s vehicle had been parked in front of the bar for hours? What is the truthfulness of the police report as to what cause existed to stop Client’s vehicle? If none, any evidence must be thrown out, “suppressed” in the language of the law.
2. No. Until the Officer had a “reasonable, articulable (describable) suspicion” that Client had been driving under the influence, he could not detain for investigation, and refusal to get out of the car should not constitute a crime. What do the audio recordings and witness statements show as to what was said by the Client and the Officer? Again, this could be an unlawful arrest of Client and grounds for suppression of all evidence obtained after the unlawful arrest. The Officer does not have to say, “You are under arrest.” If the freedom of movement (cannot leave) of Client is substantially restricted without reasonable cause, it is an arrest. Were Miranda warnings given? If not, is that another basis for excluding statements?
3. If there was no lawful basis for removing Client from the vehicle in support of an investigation based upon a reasonable suspicion, there was no resisting or obstructing the Officer. There would be no basis for use of force or for arrest. If there was a basis for reasonable suspicion that a crime had been committed, the Officer could use reasonable force in support of the investigation. Without a strong concern for the safety of Client, the Officers or the public, restraint to the ground is use of excessive force.
4. The burden of proof in court is upon the state to prove a crime. The Officer almost always records the initial contact with a suspect, though often the later events are not recorded. This is a questionable procedure and one that opens the Officer to questions at trial as to why and what was missing from the recording carried on his person as well as by other Officers on the scene. All the circumstances must be reviewed carefully. The State often charges all possible crimes to compel Client to plead guilty to the DUI or any other underlying crime. This is the nature of “plea bargaining,” which gives great power and discretion to the Prosecutor, almost to the exclusion of even the Court. While this is a criticism of the system that is acknowledged by practitioners and policymakers, the practices involved in plea “negotiations” are weighted against the Client and his attorney. The best defense is a good offense.
This fictitious case, based upon real events, will continue in the same manner, unfolding other facts, questions and explanations of the law. For example, next time a passenger in Client’s car is charged with obstructing and assault on an officer though never being close to an officer. The witness is hit with the tazer, an electric shocking device and suffers a seizure, threatening his life. The other witness is questioned, cuffed and detained in the police car. At no time was anyone told that he or she was “under arrest.” No field sobriety tests were conducted of Client, nor a blood alcohol breath test offered at the scene. Rather, Client was taken to the hospital for injuries, treated and then taken to the police station for processing and where client was shown a “search warrant” for the drawing of blood. Months later, no blood test results have been produced. We await the State’s production of evidence for our analysis. This case is hypothetical. It is not typical. But, it is a good example for potential clients looking for a good DUI attorney. This is how I will approach your case, bringing experience and assertiveness in your support. All persons are imperfect. All cases reflect that imperfection. My job is to find those flaws, mistakes, misunderstandings and sometimes overzealousness by law enforcement and insist on results in your case that give you the benefit of the doubt at each turn. This makes the State’s burden of proof beyond a reasonable doubt a much harder one.
CALL MY OFFICES TO CONSULT RE. YOUR SITUATION. DO SO AS SOON AS POSSIBLE AFTER AN ARREST. LET’S TALK.
Over 35 years practicing law, I have been a public defender, special criminal prosecutor, Chief Legal Counsel for Idaho State Police, Police Union Legal Counsel for the Boise Police as well as the Ada County Deputies. I have trained police officers at the Idaho State Police training academy. I was trained as a police attorney at the Federal Bureau of Investigations (FBI) Academy at Quantico, Virginia. I served as an Idaho State Senator for two terms, retiring undefeated. I bring this and more experience and strong advocacy to your case and in your defense. Thank you for your call when you need my help. Continued Here.
Give Brian Donesley Attorney At Law Today: 208-343-3851