What Determines If A Felony DUI Case Should Be Tried Or Not?
There are cases where the prosecutor is not offering anything. There are a lot of things that a prosecutor can do to help settle a case. They can recommend the home confinement versus jail. They can reduce it down from a felony to a Class A misdemeanor. There are some different things they can do. When you have jurisdictions where the prosecution just wants to be as hard as they can on felony level DUIs and they’re not offering the client anything except to go there and plead guilty. Then, those are the cases that you have to take the trial. The client has nothing to lose. If they’re not being offered anything, they have nothing to lose. There are a lot of places in trial where the prosecution can make mistakes.
They may forget to swear in certain witnesses and didn’t have witnesses show up for their cases, or they have gotten officers that have gotten the dates on the subpoenas wrong or the toxicologist from the lab. It’s those things that can make the difference in the case. If you have your case scheduled for trial, you get going on your trial and one of the state’s witnesses isn’t there because you’ve forgotten he’s on vacation. Your client is either going to get a not guilty, or the prosecutor’s going to make you a great deal to get it reduced down and get the case resolved. When there’s nothing to lose, or there is a good video, things like that that I can use to argue that the driver’s not DUI.
That’s what you have to do. You just have to do your own case evaluation and take it a case at a time.
What Are Some Potential Defenses Utilized In Felony DUI Cases?
One of the things that can be done on all DUIs is look for the legal reason for the stop. Was the stop justified in the first place? In most cases it’s either due to some kind of traffic infraction, or an equipment violation like a burned out tail light or brake light or something. That assessment is done. The attorney looks to see if the stop was justified. If it wasn’t justified, if there was not a good reason to stop the driver, then the evidence they have can be thrown out. A blood test result, or a breath test result can be thrown out if there was not a legal reason for the stop. Once they get the driver stopped, they have to have a reason to go into expanded stop, or into a DUI investigation.
Once again, the evidence could be thrown out. That’s the second thing to look for is the expansion of the stop. The third thing to look for is the actual DUI investigation itself. Was it proper? Did the officer properly administer and interpret the standard field sobriety test? Did he score them fairly? Did he instruct them properly? Is what the officer put on the report, does it match the video?
At the driver’s license hearing or suppression hearing you can ask the officer to give me their instructions that you gave the driver on the one leg stand, and the walk and turn test. If they’re not the proper instructions, then there is a good argument that the DUI investigation itself is not good. Then there is the actual chemical evidence, either the breath test of the blood test. Was the machine calibrated? Was the officer certified to operate the machine? Was it functioning properly? If it’s a breath test machine. If it’s a blood case, was there a proper blood draw done? Was the person who drew the blood certified? Was it properly stored before it got to the lab? When the blood got to the lab was it properly analyzed and was the equipment at the lab calibrated and working?
Those are all potential defenses to any DUI. On these cases where they’re felony, and if they’re using the prior convictions to enhance it, Attorney Nebeker will pull the court dockets from those prior convictions to see if they were solid convictions. Meaning, were they properly advised of their rights? Were they represented by counsel? Were they informed of the enhance-able nature of the offense? There have been cases where he has pulled the record on those priors and the court had shut down and the records were gone. There was no way to prove that the driver had been properly advised of his right to counsel. The computer said that he didn’t have an attorney represent him and stuff like that.
That conviction was able to be thrown out which dropped it from a felony down to a class B misdemeanor. This is how to attack the felony level with the priors. On the serious bodily injury cases, medical records need to be pulled and examined to see what the injuries were. There are a number of potential defenses on both the felony and misdemeanor DUI cases.
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