I recently had a DWI trial in which my client, who had behaved badly with police – passively resisting their efforts, being verbally abusive – was found not guilty of driving while impaired. Obviously my ability to secure a not guilty in this particular case does not mean that all cases like this will result in a not guilty.
Certainly no police officer should have to deal with such conduct. But does bad behavior, even abusive language, necessarily indicate impairment?
The answer is no. Certainly if someone is verbally abusive, smells of alcohol, and passively resists the police, that person can be found guilty of driving while impaired (assuming the person was caught in a vehicle while driving on a public vehicular area or public street or highway).
A judge or jury can determine that the behavior was the result of impairment. But not always. Maybe the person simply doesn’t like police. Maybe the person is rude and obnoxious as a matter of course. Maybe the police did or said something that was offensive to the person.
Sometimes a police officer will testify that the person was impaired because he was impaired. In other words, the police officer is unable to point to specific facts to support the conclusion of impairment. The testimony comes out like this: “Based on my training and experience, the driver was impaired.”
Such testimony is insufficient to prove impairment, since the trier of fact – the judge or jury – must be told not merely of the conclusion of impairment – which is a factual and legal conclusion – but must be given the individual facts and observations to make an independent determination whether the person was impaired.
In other words, the judge’s job is not merely ratify the conclusion of the police officer who says he or she observed impairment, but to independently make a judgment about the facts that led to that conclusion.
If the judge cannot do so, then a “not guilty” result is demanded.