DWI / Intoxication Cases—That’s All I Do
DWI Case Dismissed After ALR Hearing
The ALR hearing (driver license hearing) is critical for setting up a DWI defense. In this case, the ALR hearing allowed me to develop and lock down conflicting observations between the initial officer that spoke to my client and the DWI officer that later arrested him.
MC* was driving home from an afternoon and evening playing golf with his friends. He picked up his daughter from an afterschool event. MC was distracted talking to his daughter as they drove down their street and ran into a parked vehicle. Fortunately, MCs daughter was fine. Unfortunately, Officer A smelled alcohol. MC told Officer A he had not been drinking. Officer A called Officer B, a DWI officer, to test MC. Officer B showed up and gave MC the first standardized field sobriety test, the HGN test. MC then refused any further tests and was arrested. At the magistrate, MC refused the breath test. His blood test later came back at .104 blood alcohol content.
Officers are trained how to write reports in the police academy.
They are taught to include the relevant observations and “facts” that support their decisions and conclusions.
For a DWI case, this must include the details the officer observed that led to the decision to make an arrest.
Officer B, the DWI officer, made the report in this case. Officer B wrote in his report that as soon as he arrived he spoke to Officer A who gave him the following information: MC had hit a parked car. MC’s daughter had been evaluated by EMS and was released. Officer A also told Officer B that he smelled the odor of an alcoholic beverage coming from MC, but that MC denied drinking. That was it.
Officer B wrote that MC smelled like an alcoholic beverage and was unsteady on his feet. In Officer B’s opinion, MC had glossy blood shot eyes, slurred speech, and maximum signs of intoxication on the HGN test. Based on these observations, he arrested MC. These two officer seem to have significant differences in their opinion of MC’s appearance and actions.
The arrest video made these differences even more clear. Officer A actually gave MC one field sobriety test, the Horizontal Gaze Nystagmus (HGN) test. But, he never told Officer B that he gave the test or how MC did on the test. This failure created the foundation for our defense.
It is a fundamental principle of police work that an investigating officer should be told all relevant information about a person he is investigating by a first responding officer. If Officer A would have seen signs of intoxication on the HGN test or during his time with MC, he should have told Officer B. Since he did not, it was reasonable to conclude that there were no signs to report. But, we needed to lock that testimony down in the ALR hearing.
We subpoenaed both officers to the license hearing and began by questioning Officer A.
During the cross-examination, I asked Officer A about his observations of MC. It was important to establish that Officer A would have told Officer B everything that made him suspect MC of DWI.
Q: What did you tell Officer B?
A: I could smell a strong odor of intoxicants.
Q. And if you would have observed bloodshot eyes or slurred speech or something like that…. You’d want him to know that correct?
A I would have told him, yes, sir.
Q: So since you didn’t tell him that, it’s reasonable to assume that you didn’t observe those things, correct?
A: Probably.
Q: I’d like to pin you down to a yes or a no. It’s reasonable to assume you didn’t see those things, correct?
A: Correct.
Q: Since you didn’t tell him, you didn’t see that, correct?
A Correct.
Later, I moved to questions about the Horizontal Gaze Nystagmus (HGN) test.
Q: But you also did the HGN test, correct?
A: Yes.
Q: And if you would have observed clues of intoxication on the HGN test that would be something that you would need to tell Officer B, correct?
A: Correct.
Q: And so, fair to say, being a detective and knowing how to write reports, that since you didn’t tell him that, its fair to say you didn’t observe any clues of intoxication?
A: I didn’t see any.
Q: You did not see any clues of intoxication on the HGN, correct?
A: Correct.
At this point, Officer A is locked in to the point that to do his job, he should tell Officer B everything that he observed that made him believe MC was intoxicated. Therefore, if he did not tell Officer B about it, he did not observe it. It is also important to know that Officer A spent about an hour with MC, but Officer DWI spent about 5 minutes with MC before making the arrest.
Officer A ruled out the "clues" of intoxication.
I also used Officer A to rule out all of the remaining “clues” of intoxication that Officer B said he observed.
Q: Based on your testimony today, the only thing you observed was the smell of alcoholic beverage, correct?
A: Correct.
Q: Not blood shot eyes, not HGN.
A: No.
Q: Not unsteady balance, not any of those things, correct?
A: No, or I would have noted it.
At this point, Officer A cannot backtrack. Importantly, he was a 13 year veteran who had made between 30 – 50 DWI arrests. He was credible.
After the hearing, we ordered the transcript of all the testimony and set the case for trial in the DWI court. When the day came for both sides to tell the Judge we were ready for trial, I shared this transcript with the prosecutor in the DWI case. After reviewing this transcript and the video, the case was dismissed.
The case was dismissed.
This is just one example of how important the ALR hearing is for a DWI defense. They are a priority in my practice. If you have questions about a DWI or an ALR hearing, do not hesitate to call me. I’ll be glad to talk with you.