Tactics in Colorado DUI Cases

So exactly what can I do for you when I say that there are quite a few defense tactics?

Let me show you what I mean through actual examples.

No Reason for a Stop

I had a case where my client (let's call him Joe) had been stopped by a police officer on a street fairly late at night behind a closed business. Because of way in which the police stopped, tested Joe for DUI, and arrested him, I filed several motions. I challenged the stop, roadsides, and arrest. I filed a motion to suppress the preliminary screening test, a motion to suppress statements and a motion to suppress the field sobriety tests.

I also filed a motion to suppress all the evidence.

At the pre-trial hearing for consideration of my motions, the police officer admitted during questioning by the District Attorney that "I didn't know if he (Joe) had committed a crime, was about to commit a crime or what the circumstances were."

After stopping him he approached my client's car and testified that "I did notice an odor of an alcoholic beverage coming out his breath . . . ."

But I doubted the stop was even legal to begin with.

So, during my questioning of the officer I first determined that Joe was only going about 10 miles per hour.

And then it went on as follows:

• Q. Okay, but his speed was not a violation of any statute?
• A. Right
• Q. Okay, and after the time you pulled up behind him, there wasn't any criminal activity that you suspected, correct?
• A. That's not true. I did know.
• Q. What did you suspect?
• A. You asked if there was any criminal activity and I did not know at that point, that's what I was investigating.
• Q. Okay, so you did not suspect any criminal activity at that time?
• A. No, that's not correct. I did know.
• Q. You did know there was criminal activity?
• A. I was investigating the possibility that there could have been.
• Q. That there could have been?
• A. Correct.
• Q. Okay, but the only thing you observed was his slow speed?
• A. The fact that he was there. I've worked that patrol area, that particular area which is considered District One in Parker for over a year at that point. It is very unusual to observe vehicles back there at that time of day. It was my normal patrol area. The businesses are closed and, in fact, there really shouldn't be anybody back there. That's what triggered it."

In essence, I got the officer to tell me that he was strictly working on a hunch.

The end result was that the District Attorney agreed with me that the evidence should be suppressed because the officer who stopped Joe had no reasonable suspicion to stop him to begin with. Since there was no reasonable cause to stop him, everything that happened after the stop was thrown out.

This left the DA with no case, and at the next hearing the case was dropped entirely.

Before I go any further, let me tell you that I'm not promising that I can do the same in your case. That would be unethical. Every situation is different.

That was pretty interesting , wasn't it?

Let me give you another example.

Mistaken Identity?

This one involves my client, I'll call Sam.

Sam was pulled over after rounding a curve in the road. He was driving a maroon car. A motorist had called in from his cell phone to the Police. He reported the dangerous way a maroon car was driving. This conversation was recorded. Then the car turned off onto another road and the witness did not follow it any further.

And he reported a specific license plate number GBF 7390.

After a short while, two police cars began following a maroon car. These officers saw an infraction just before the curve I mentioned before. When rounding the curve, the car was out of sight of the officers for a short time.

After they had a maroon car back in sight, the pulled the Sam over.

In court, the prosecuting attorney laid out his whole case, saying that because the driver of the car was weaving and driving erratically, the police had probable cause to arrest the driver for driving under the influence. The officer who was closest to Sam's car and who made him pull over was not in court. The other officer was.

In my statements to the judge I pointed out one thing in particular: the license plate number wasn't the same, so the stop wasn't reasonable to begin with. The police had pulled over a maroon car all right--with the license plate number GAW 2364.

Here's what the judge said:

"This is a very serious offense. For some reason the Prosecution has not provided the Court with the other officer. Inexplicable.

"A different license plate or a different car is the only reasonable explanation that the Court has right now based on Mr. Forslund's evidence that the car went out of sight and then when the officers did pull behind it, apparently it's a different car. How highly unlikely.

"I understand how highly unlikely that is, but the police did not provide the Court with the witness who followed the car. The police did not provide or the Prosecution did not provide the Court with the witness who followed the car and the police did not provide the Court with proof that the car that was reported by the unnamed witness and then by the police repeatedly to the dispatcher was in fact the same car that was stopped.

"I'm not convinced, so I will find that there is not reasonable suspicion to believe (Sam), even though he's driving a maroon car of the same make and model, in the same area where a maroon car apparently disappeared and he appeared.

"However highly unlikely that that is, I have to find that the Prosecution has not sustained their burden this morning. There was not reasonable suspicion to believe that the individual here in Court today, (Sam), was the individual that committed the careless driving and was reported by the unnamed informant to be a seriously, seriously impaired or ill, so I'll grant the Defendant's motions in their entirety . . . to suppress all the evidence from the time that the officer pulls up behind a maroon car bearing license plate GAW 2364 is suppressed."

As in the last example, the judge could not dismiss the case at that time. That happened at the next hearing soon after, because the Prosecutor now had no case. Again, my point is to show you that although it looked pretty open and shut that Sam was going to be successfully prosecuted for DUI, it wasn't quite that simple.

No Reason to Request a Test

This final example concerns a suppression hearing for Mr. McH. The issue concerned whether there was probable cause to even arrest Mr. McH in the first place.

Ready? Here's the facts.

Mr. McH had been involved in a rollover accident. According to the supervising Sergeant during his testimony as the DA questioned him, Mr. McH. wasn't in the car when the police first came upon the accident scene.

He couldn't remember what had happened. He couldn't even remember driving the car that was wrecked. It was when the Sergeant got into the ambulance with Mr. McH that he first detected the odor of alcohol on Mr. McH's breath.

The other officer involved at the scene (Officer B) also detected the smell of alcohol when he went into the ambulance, saying it was "reasonable (reasonably) faint, but detectable." At no point at the scene of the accident was Mr. McH told that he was under arrest. Nor even in custody.

After the ambulance took Mr. McH away, Officer B then contacted Mr. McH's sister-in-law. She told him that Mr. McH had been drinking earlier in the evening. Officer B then went back to his office, filed his report and filled out a notice of revocation of Mr. McH's license and a summons in the charges of driving under the influence of alcohol and careless driving..

It was then my turn to ask questions of Officer B. I was able to show that in fact there was no evidence that Mr. McH was the driver of the wrecked car. Mr. McH had denied it when he was still at the scene. It was only because Mr. McH was the registered owner of the vehicle that the police believed that it was Mr. McH who had been driving.

Moreover, in my concluding remarks I basically showed that there was no probable cause to enforce what is called the Express Consent. In this case, all there was was the odor of alcohol, plus an accident. The only thing that existed was reasonable suspicion, which is not enough to invoke Express Consent. Therefore I concluded that the fact that Mr. McH had refused to have his blood tested was not admissible in court.

The Court agreed for the reasons I just mentioned, and because of the lack of information about the case. Finally, at trial, since no more evidence was introduced, the case was not presented to the jury.

Could the same be true for you? I don't know now, but if you call for your free consultation, I will explore all these types of possibilities with you.

The lesson to be learned from this example is that a case--your case--may be able to be defended by one or more challenges to the charges you are facing.

That's what I do for my clients.