Florida Criminal Defense and DUI Defense Blog

4Apr, 22

Winning a DUI caseToday, I’m chatting with my good friend, attorney Cliff Barnes about winning another one of those DUI cases that was thought to be unwinnable.

CB: Well, I had a success in a case and I wanted to share it with the whole legal world.

MK: Oh, that’s great. Is this another one of those cases that couldn’t be one?

CB: Yeah, this is an unwinnable case, and we didn’t go to trial, so we didn’t completely win it, but we had a partial surrender by the state.

MK: Well, that’s great. Tell us about it.

CB: Well, this is a young lady, I believe she was 19 at the time. She’s driving dad’s car home from Archie’s, where she worked. And there’s an officer right behind her, coincidentally, not because she was driving poorly, but he watched her from a distance, farther away, drive up onto the sidewalk and then back down. And as you know, in Fort Pierce, our sidewalks are for pedestrians, at least usually.

MK: I think we can agree that they’re not for cars.

CB: Not, no, So he gets a little closer to her, and about that time she hits a parked car. So he doesn’t need to observe any more driving patterns. She then backs up, according to the officer, and tries to leave the scene.

MK: This parked car that she hit, it was not up on the sidewalk.

CB: No, it was next to the sidewalk.

MK: Ah, okay.

CB: On Sunrise Boulevard, you know, the diagonal road that goes off U.S. One. So, he figures he better stop her from leaving. He does. He claims that he smells a fruity alcohol beverage. But as you know, alcohol itself – there’s no odor.

MK: Right.

CB: It’s another one of those “I detected an odor of alcohol” even though alcohol doesn’t have an odor. So she had a full blown, it seemed, just a total meltdown, emotional meltdown, there at the scene. I think every police officer in Fort Pierce that was awake was at the scene. It is 3am. Everybody’s there. Everybody’s wearing body cams. They asked her to take a breathalyzer. She refuses. She keeps demanding that her father be present, and that she needs a lawyer before she answers any questions.

CB: So when I first get the case, I put it in the “unwinnable” category, especially since we had a driver’s license hearing. There was plenty of probable cause, if the officers were telling the truth. And so I feared that we would lose her driver’s license almost automatically. But as you have shown me, sometimes you show up in those hearings, and when the state doesn’t do their job, or the police in this case, your client can actually win these hearings and keep their driver’s license.

MK: Absolutely.

CB: The same Police Department, Fort Pierce police, the officers somehow didn’t get their paperwork in order and so she got to keep her license. So then we’re dealt with only the criminal case. Well, the Criminal Case looked bad enough, based on, you know, the police report. But we did order from the police department through the Freedom of Information Act, the videos of all the officers and their body cams. And it’s fascinating, fascinating what doesn’t make the police reports, but which will be prime material at a jury trial.

MK: Let me let me take a wild guess. The contents of the body cam don’t quite exactly dovetail with the police report.

CB: It wasn’t that bad. It was just that, when I talked to her father (she’s only 19, she’s driving his car), she says, and she had told officers, she’s got a history of depression and anxiety. And he said, “Look, my daughter just probably had a nervous breakdown right there on the scene. And, you know, I’ve been trying to treat her for this anxiety problem, but the problem is they’re treating her with herbs and not pharmaceuticals. So really, it doesn’t do much good for her condition.”

CB: So between that, explaining her meltdown. and her statement to the police that she didn’t have any alcohol to drink, you’re then left with a chance. And it turns out that she provided me a picture of the inside of her car when she got it out of impound, which showed that there were indeed chicken wings scattered everywhere from her work she had on the seat beside her. Which certainly, trying to eat chicken wings with one hand and steer with the other is probably more dangerous than having a couple of drinks and putting both hands on the wheel and both eyes on the road. So those chicken wings took her up on the sidewalk. And then those chicken wings took her into the back of another person’s car.

CB: As far as the smell of alcohol, they had a trainee, and this was during the first of COVID. And he had a mask on and I think she had a mask on it. The superior officer kept telling him to go and smell her breath, and kept suggesting that there was the smell of alcohol. And the officer, two or three times, said, “But I can’t smell it. I don’t smell any alcohol.”

CB:  So, what we have here is really lousy driving. But the problem is, it’s late at night and officers are going to assume that you’re intoxicated when you’re on the road at 3am. And you run into a parked car. So, you know when you said Is it way off of what was written in the report, it wasn’t that far off. They just interpreted the whole scene differently than an uninterested observer like her lawyer might.

MK: Right. So she was actually guilty of driving while noshing.

CB: I guess that’s what it would be. But anyway, the state, after two years, they finally agreed on a reduced charge to reckless, off of a DUI with property damage.

MK: Very good.

CB: She walked out owing money, and she got to keep her license. And it was a good compromise for everybody.

MK: Job well done.

CB: Thank you. Thank you.

MK: And thanks for taking the time to talk with us about it.

CB: Absolutely. Again, it just shows if you believe in your client, and you listen to them and their relatives, sometimes, if you’re not too jaded, you’ll see that things aren’t quite the same that they first appear.

MK: And you have to recognize, sometimes we have to remind ourselves, the police report is not necessarily the gospel truth. And even if everything in it is true, it’s certainly not the whole story.

CB: It is not.

MK: And so you got the body cam, and actually watched it and saw things that changed the complexion of the case, things you could use to change the outcome of the case.

CB: That’s correct. Without the body cam footage, I might have been tempted to allow her to plead to DUI.

MK: Sure, because without the body cam footage, you would have thought the odor of alcohol was truly there.

CB: It would have been her word against theirs. And you know, they wouldn’t have been wishy-washy at trial, it would have been a definite fact in their minds.

MK: Sure. Well, thank you very much. Onward and upward and onto more challenges.

CB:  Off to the next unwinnable case.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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