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One Side of a Story

One of the unending frustrations of a criminal lawyer is watching his clients’ reputations being smeared in the media, among the clients’ friends or family, and with the clients’ employer.

Unfortunately in our society, when someone is arrested, charged, or indicted, people assume there must be some reason for the charge. This is a natural reaction, but unfortunate, especially given how easy it is to arrest, charge, and indict someone.

An arrest is based on probable cause, which basically amounts to an opinion by the charging officer based on some specific facts that the person had or was in the process of committing a crime. The problem is that the specific facts are in many cases innocent, and only interpreted as suspicious by a police officer trained to arrest people.

Let’s take a simple example from DWI law. Let’s say a person was driving slowly, and at some point his car started straddling two lanes for 300 feet, causing the officer to pull the car over. Let’s assume upon pulling the car over, the officer approaches and smells a “strong odor” of alcohol coming from the car. Let’s then assume that the officer then asks the person to step out of the car and asks the person whether he’s been drinking tonight. Let’s assume that the person admits that he has had four beers.

Let’s further assume that this interview occurs on the side of a major street (where there is moderate to light traffic) at 2:00 am in the morning in the middle of winter.

Let’s assume that this person has never been in trouble with the law before. Let’s assume that this person then is asked to perform some field sobriety tests. The person is very polite and cooperative, and wants to do everything he can to help the officer out. But the person has trouble keeping his head still during the eye exam – called the Horizontal Gaze Nystagmus test (HGN). Given that the person failed to keep his head still, the officer marks down on his report that person “failed to comply.” (More about that later!)

Let’s then assume that the person is asked to do the Walk and Turn test (WAT), the second in the battery of Standardized Field Sobriety Tests. The officer instructs the person to take nine steps heel to toe on an imaginary line, execute a turn, all while keeping his arms by his side, and then return nine steps. The person performs this test, but, according to the officer, fails to make contact heel-to-toe (even though contact is not required according to NHTSA in order to perform well on that aspect of the test). Let’s assume that the person, trying to follow the officer’s commands, takes his time and keeps his arms by his side. The officer writes in his report that the person “took abnormally long” to complete the test and kept his hands “glued bizarrely” to his side.

Next the officer asks the person to complete the One Legged Stand (OLS) test, the third in the battery of three SFST tests. The person has trouble keeping his balance for more than 6 seconds, let alone the 30 required by the test. The officer fails to note that the ground on the side of the road had loose rocks.

On the basis of those three test, the officer charges the person with a DWI.

The person’s performance on those tests – as described by the officer – and his answers to the questions look pretty bad.

And that’s why it’s important to have competent, aggressive defense lawyers. Because, seen another way, the driver’s performance was completely normal and not indicative of impairment.

For instance, the person was driving slowly, but that’s because the person was from out-of-town. The person did have four beers, but over a seven hour period (that’s about a drink every two hours). The odor was strong, but that’s because there were three other drunk people in the car when the officer stuck his head down to the driver’s side window.

The driver had trouble keeping his car in his lane for about 300 feet (incidentally, that’s only 1/20th of a mile, not very long at all) because the driver was changing the radio station.

The driver did have trouble keeping his head still during the eye test, because the officer was telling him to follow a pen with his eyes and the person’s contacts were extremely dry. The person’s eyes were bloodshot, he’d gotten up for work at about 8 the previous morning, and had been up for about 14 hours by the point he was stopped on the side of the road.

And so on.

There are two sides to every story. Before you judge someone for having been arrested, stop to consider what you haven’t heard.



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