John H. hired me to defend him against a DUI charge. He had two previous convictions, so he knew the stakes were high. He also was firmly convinced of his innocence.
He’d been riding his motorcycle, and was pulled over only because he was not wearing protective eyewear. No bad driving. No speeding, no swaying, no weaving, no crossing lines. Just not wearing protective eyewear.
The officer smelled alcohol; John admitted to having had ONE beer. John is a very big guy, and ONE beer would not have impaired him at all.
Then a trooper pulled up.
The stop- cop said this guy has been drinking. “Wanna put him through his paces?” he asked.
“Sure,” said the trooper.
“Not gonna happen,” said John.
For exercising his perfectly legal right to refuse to participate in their roadside games, John was arrested and accused of drunk driving. He then exercised another legal right: he refused to submit to a breath test, at which time his driver’s license was suspended.
As part of our pretrial preparation, we demanded a Formal Review of the suspension. At this administrative hearing, we demonstrated that the police did not have enough evidence to lawfully arrest John, so the suspension was unjustified. The Hearing Officer disagreed. We appealed.
While the appeal was pending, we raised the same issue before the trial court judge in a pretrial motion to suppress. Again, we demonstrated that the police did not have enough evidence to lawfully arrest John. The judge disagreed with us too.
Then, the court of appeals, in a unanimous decision, did agree with us. By so doing, they overruled the Hearing Officer. They ordered the police to remove the suspension from John’s record, and give him back his license.
The Attorney General’s Office asked the court of appeals to reconsider. The appeals court’s answer? No! They saw no reason to reconsider their decision.
We made the prosecutor’s office aware of the appeals court ruling, but it mattered not to them.
Last Wednesday, we picked the jury that would try the case, which was adjourned till Friday morning. I checked the clerk’s records online before going to the courthouse. I discovered that the court of appeals had issued its Mandate, an order announcing that its ruling was final, and the appeal case is now closed.
When the trial judge convened court, he asked whether either side had any legal matters to raise before he brought in the Jury. I did.
I explained to the judge about the administrative hearing, the appeal, and the appeals court’s ruling. I told him that when the Prosecution offered any evidence obtained after the moment of arrest, I would have to object on the ground that the arrest was illegal due to lack of probable cause.
At that time, I told him, I would take the position that the appellate ruling was binding precedent, and that he would be obligated as a matter of law to follow it. I was, therefore, making a motion to dismiss the case.
I had brought with me a complete transcript of the driver’s license hearing, and the suppression hearing, so that the judge could satisfy himself that the evidence was the same at each.
The judge gave the Prosecutor every opportunity to point out to him any additional evidence that the State had to offer that the Hearing Officer had not been shown. Despite his best efforts and sincere argument, he could not.
The judge then spoke those words that were music to my ears, and to John’s:
“I am granting Mr. Kessler’s motion to dismiss.”
I heard a court deputy say that I had pulled another rabbit out of my hat. Perhaps I did. I prefer to think that it pays to be thoroughly prepared — and relentless.
By the way, I fully expected to win the trial anyway.