UNFAIR TACTICS USED BY POLICE AND PROSECUTORS TO CONVICT THE UNWARY MOTORIST OF DRUNK DRIVING AND DEPRIVE THEM OF DRIVING PRIVILEGES

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1 UNFAIR TACTICS USED BY POLICE AND PROSECUTORS TO CONVICT THE UNWARY MOTORIST OF DRUNK DRIVING AND DEPRIVE THEM OF DRIVING PRIVILEGES JAMES J. NOLLETTI, ESQ. If you have been charged with Driving While Intoxicated in New York State, you must realize right here and now that the deck is stacked against you! Although there are more heinous crimes, few are more unpopular with the public, the press, the courts and the legislatures than drunk driving. Over the past several years, stiffer penalties have been enacted and the courts have been authorized to suspend the driving privileges of those accused even before they have been convicted of any offense! As a matter of fact, the defense of drinking drivers has become one of the most difficult tasks in the field of criminal law. This has caused the drunk driving trial to evolve from a simple and commonplace task, often delegated to junior associates in a law firm, into an area of specialty for those lawyers who are well-versed and well-trained in the complexities of alcohol related criminal litigation. Today, the ill prepared, naive attorney faces insurmountable odds and likely commits professional malpractice. No longer will his client merely face a fine or a short license suspension if the case if mishandled. Today s convicted drunken driver often ends up facing substantial fines, lengthy license suspensions or revocations, community service, assessment fees, public humiliation and jail! Worse yet, it has become commonplace for a driver who has had only a few drinks and is not legally intoxicated to be arrested, charged and convicted of a crime because of the tactics used by police and prosecutors along with the inequities built into our legal system in DWI cases! You must understand that the system is designed to produce convictions. In the average case, it seems that neither the police nor the prosecutor are interested in justice; only a conviction! And yet, despite the vastly more sophisticated nature of drunk driving litigation, the client accused of this offense is likely to be defended by a general practitioner, their business or family lawyer, who has no special expertise in this area. If you want to increase your chances of getting a fair shake, read on. You must understand how the system works and how you can protect yourself against the unfair advantages that the police and prosecutors exploit every day of the week to convict even the innocent of drunk driving! Here are the five (5) most common unfair advantages used against people like you in DWI cases:

2 UNFAIR ADVANTAGE #1 THE OVERCHARGE - PLEA BARGAIN ROUTINE Chances are you were overcharged by the arresting officer. Motorists are overcharged by police because police and prosecutors know that, to move cases, they have to plea bargain. People like you are overcharged every single day and prosecutors know that they can move cases by offering a reduced charge in return for a guilty plea. The routine is simple... a motorist is charged with the criminal offense of Driving While Intoxicated no matter what his or her condition is and then, for first time offenders, they offer a plea bargain to the traffic infraction of Driving While Impaired by Alcohol. While this may well be a bargain in the case of a motorist who was truly intoxicated under the law, it is not such a bargain in the more common case, where the motorist was actually only impaired and was overcharged to begin with! An experienced and knowledgeable attorney cannot be fooled by this so called bargain and he or she will know how to reveal the case for what it really is! Unfortunately, I have come to learn over my many years of practice in this area of the law that most attorneys who handle DWI cases never explain to their clients the legal definition of these two different offenses! You see, unless you were incapable to a substantial extent of operating a motor vehicle as a reasonable and prudent driver, you should not even have been charged with Driving While Intoxicated, which is a crime (either a misdemeanor of felony depending upon your prior record, if any). There is a lesser offense which is rarely used by police at the time of arrest, called Driving While Impaired by Alcohol. This is only a traffic infraction! By legal definition, this traffic infraction is supposed to be used by police in situations where the motorist is substantially capable of operating a motor vehicle as a reasonable and prudent driver, but the motorist s consumption of alcohol has actually impaired the physical and mental abilities a person is expected to possess in order to operate a vehicle as a reasonable and prudent driver. The problem is, a person can be arrested and convicted of what is known as an observation DWI based solely upon the subjective opinion of the arresting officer, even if the officer is wrong or mistaken! There is no objective standard to be applied. Because it is the arresting officer who decides, in his or her opinion, the extent of the motorists impairment, the system lends itself to the unfair tactic that I call the overcharge - plea bargain routine.

3 UNFAIR ADVANTAGE # 2 THE COORDINATION TEST CONTROVERSY In 1953, a Joint Legislative Committee Report submitted to the Governor of New York State (N.Y. Leg. Doc. No. 25, pp , 1953) found that these tests have often been used to falsely accuse a sober person (emphasis added). Yet, police and prosecutors continue to use this type of evidence to convict people like you! As you probably know, in many instances, a motorist suspected of driving under the influence of alcohol is requested to perform a number of physical performance or coordination tests, either before or after having been placed under arrest. While the motorist is sometimes led to believe that the successful performance of these tests will result in them being released, that is rarely the case. These tests are usually conducted by police officers, arbitrarily for the purpose of obtaining observation evidence to be used against motorists in court. The finger-to-nose, oneleg stand, walk and turn, straight line, alphabet and coin pick-up tests have become a common part of DWI arrest procedure. Unsuspecting motorists are generally cooperative and rarely refuse to participate in these tests. Next to the chemical test (discussed below), the results of field sobriety or coordination tests are the most damaging evidence that can be introduced against the defendant in a drunk driving trial. These tests are nothing more than neurologic tests and it is difficult to determine what a person s normal response is. Studies have shown that the average person, without any alcohol in his or her system, may find it difficult to perform some of these tests. Many neurologic conditions may cause a difficulty in one s performance. In fact, as far back as 1953 the New York State Joint Legislative Committee Report to the Governor (N.Y. Leg. Doc. No. 25, pp , 1953) found that these methods as commonly used in most communities to document intoxication in drunk driving cases are totally inadequate This report goes on to state that these tests are not conclusive, since the common signs of intoxication have often been used to falsely accuse a sober person! And, that a person s appearance may be clearly abnormal, yet the abnormality is not due to alcohol and the arresting officer usually has no special expertise or training to enable him or her to know the individual s normal condition and how, if at all that which is observed is related to alcohol impairment. Yet, police officers and prosecutors continue to use this type of evidence to convict people like you! Worse yet, these untrained police officers are permitted to testify at DWI trials as to their subjective interpretation of these tests! Perhaps most revealing of the unfairness involved in this regard is the fact that every single police agency has available to them video cameras which could be used to record the coordination tests being administered to DWI defendants, but I have never, ever seen a case where this was done!

4 The only way you can overcome this disadvantage is by having a knowledgeable and experience lawyer conduct an effective and through cross-examination of the arresting officer to reveal the true facts! UNFAIR ADVANTAGE #3 THE DECEPTIVE CHEMICAL TEST REFUSAL WARNING Once arrested, the motorist will likely be asked to submit to a chemical test. This is usually done with an officer reading what are known as DWI Warnings from a printed card. As part of those warnings the motorist is told that their failure to submit to a chemical test will result in immediate suspension of his or her license and revocation of his or her driving privileges. Obviously, the objective is to convince the arrested motorist to submit to the test, so as to avoid loss of driving privileges. That test result will usually become the most devastating single piece of evidence to be used against the arrested motorist. Sometimes promises of low bail are also made to induce the accused party to submit to a breath test. The unwary motorist, who may need his or her wheels to earn a living may feel compelled to take the test to avoid immediate loss of driving privileges and perhaps their job! The problem is, that even if you take the test, your driving privileges may be suspended anyway and you will have to deal with this potentially devastating test result at trial! And, you see, the police officer probably knew about this but didn t tell you before asking you to take the test, because he is not required to! How s that for an ambush!! UNFAIR ADVANTAGE #4 THE DELUSORY BREATH TEST RESULT The single, most devastating piece of evidence against a drunk driver in court, is a chemical test result from a machine such as the Breathalyzer or Intoxilyzer. Jurors and judges alike will often accept these results as being accurate when, in fact, they are almost never an accurate indication of your blood alcohol content at the time you were operating a motor vehicle! You see, under the law in New York, it is illegal to operate a motor vehicle at a time when your blood alcohol level is over.10 of one percent by weight. The first obvious question you should have is, what does my breath have to do with my

5 blood alcohol content? In using a breath sample to ascertain blood alcohol content, a mathematical formula known as Henry s Law is used and programmed as a ratio into the breath testing machine. That ratio of 2100 to 1 (the breath alcohol content is multiplied by 2100 to obtain the blood alcohol content). The problem is that, while that ratio may be an average among humans, chances are no single person tested has that actual ratio existing in their body! Experiments have been conducted with simultaneous blood and breath samples being taken so as to demonstrate the actual range of these ratios that exist in human beings. It has been established that it varies from a minimum of 1004 to 1 to a maximum of 7289 to 1. What this means is that the breath test machine virtually never gives an accurate measurement of blood alcohol from a breath sample. In a close case, just knowing this scientific fact and being able to produce it as evidence before the jury may mean the difference between conviction and acquittal! There are many other factors, such as body temperature, radio frequency interference, and the absorption/elimination curve, all of which I cannot go into right here, but which may render a breath test result totally useless! For example, since the critical factor is one s blood alcohol content at the time they were driving, how accurate are breath tests administered a substantial time later, after an arrest? You see, depending upon when you consumed an alcoholic beverage, your actual blood alcohol level may have risen between the time I was driving and the time that the test was administered! Once again, knowing this and knowing how to present it to a jury may mean the difference between conviction and acquittal! And, you see most prosecutors who offer this delusory test result know from their high school chemistry class that to validate the results of any test or experiment, more than a single test should be conducted. This is known as replicate testing. Yet, even though this type of evidence can substantially impact an individual s life, the police only obtain a single, solitary test result. Obviously, two (2) tests conducted several minutes apart would show whether or not one s alcohol level is going up or down in relation to the time that they drove! Most importantly, a knowledgeable attorney knows how chemical test results such as these can be used to establish your innocence! UNFAIR ADVANTAGE #5 THE BAD CHOICE DEFENSE LAWYER If you think all lawyers have about the same experience and training, you may be assisting the prosecution in obtaining a conviction... your own! When I was an assistant district attorney prosecuting drunk driving cases, more often than not, the person being prosecuted made my job easy by giving me an unfair advantage over them because of their choice of defense attorney.

6 You see, prosecutors usually handle DWI cases every day of the week. They have a whole arsenal of strategies and methods to convict people like you. On the other hand, the person accused of DWI is likely to be defended by an attorney who normally does not handle these types of cases. The crime is unique in that it is usually committed by respectable citizens who often turn to their business or family lawyer for help. As a result, this highly complex case is handled by an attorney with insufficient knowledge of the extensive scientific, evidentiary, procedural, and tactical consideration involved. When this happens, the prosecutor can have a field day and the result of the case is too often predictable. In many of these cases, the attorneys seemed afraid to try the case against these skilled prosecutors and they would fold right before trial and take the plea bargain offered by the prosecution without a fight! You need a lawyer who knows the weaknesses of the prosecution s case, and who knows how to drive the hardest bargain. And, if the case cannot be resolved by plea bargain, you need a lawyer who is not afraid to go into the courtroom with an aggressive defense strategy, and who can vigorously cross examine the arresting officer. Your case, is important! Your driving privileges, insurance costs, employment and even your freedom may depend upon the outcome. You need to have a lawyer that is both committed and able to providing you with a quality defense in your fight against the system. SO HOW CAN I HELP YOU? In my practice I ve found that people are sometimes embarrassed, scared, intimidated or are otherwise reluctant to seek help when they have been arrested. Some have had bad experiences with other lawyers. Some have already been intimidated by the unfair advantage of law enforcement in cases like this. Some simply believe that it is better to give in and plead guilty even though they do not feel that they are guilty. If you are one of these folks, you don t need me or this report!. However, if you refuse to accept the injustices I have described and you want to protect your rights, you may need help. I have found that once I talk with people about their case and the legal process, they feel much better and more at ease with the system. After talking with me they feel that it is okay to take on the prosecution and they feel good about the fact that they are doing the right thing. I think my clients also appreciate the opportunity to talk with me at no charge, and with no pressure!

7 You see, I have been very fortunate to have had a successful law practice for more than 20 years. I do not do volume ; I do quality. As a result, I am not able or willing to represent every client that walks into my office. So, if you want a lawyer to take you to court to plead guilty as charged, please do not call me. If however, you want to defend your case because you believe you were innocent or that you have a legitimate defense and you would like the opportunity to meet and discuss it with me, I am willing to do so if, for nothing else, because I detest the injustices that I have seen. I will do this at no charge and with no pressure because I feel that you deserve it! NO ONE WANTS TO BE PRESSURED!! I don t blame you in the least. You must be careful and make the best decision you can concerning your choice of lawyer. You can t make a good decision if you are being pressured. One of the reasons I wrote this report is to see if I can help you. I would like to tell you about your legal rights and answer your questions without pressuring you and free of charge! So here is what I would like to offer you, absolutely free: A free interview. We ll talk about your case and your legal rights, or whatever you want to discuss about your situation. I ll also answer any questions you have about my legal experience, including the many, many DWI cases that I have tried before juries, both as a prosecutor and defense attorney. It is my hope that during this interview I can help you: 1. Find out what, if any, Unfair Advantages might be used against you in your case. 2. Evaluate you situation and see what, if any thing can be done to even up the sides and increase your chances of getting a fair shake. 3. Increase you chances of obtaining a favorable outcome and resolution of your case. Remember, you are under no obligation and no one will pressure you! Personally, I hate it when I receive pressure from others and we will not do that to you. You will not be obligated to us in any way! We just want to create a forum where you can feel comfortable talking with an experienced DWI defense attorney about your legal options, as well as answer any of your related legal questions. If this report makes sense to you in any way, then you ve probably got some questions. Feel free to call me while this is still fresh in your mind. Waiting any longer may cause more stress and concern on your part and we would be happy to get you the information you need to ease your mind. You may be at a tremendous disadvantage and I think you should know about it!

8 And, while in many cases my office has been retained by people like you, looking to increase their chances of a fair disposition, you are under no obligation to do so and are always free to hire any lawyer you choose. If you think this is fair, and you want to take advantage of the free interview, with no obligation, just give me a call and I will personally set a time aside for us to meet. You will find that when we talk, there will only be a relaxed atmosphere and the freedom to ask any legal question you want about your case. That s it! So, if any of this makes sense, then you might have some questions you want answered. If I have helped in any way, I have done my job. Now it s time for you to do yours! If you feel comfortable, please give me a call while you are thinking about this.