Today we had a motion to suppress evidence hearing. That’s where defense counsel will argue that an officer violated our client’s constitutional rights; therefore, the evidence derived from that should be suppressed or excluded. Sometimes this leads to the case being dismissed.
In this case, 100% if our client had remained silent, not performed any standardized field sobriety test, and not blown into a portable breath test, I’m confident she would have never been dealing with a DWI or at least would be in a better position for the case to be outright dismissed.
She was lost, had directions pulled up on her phone, and was looking at her directions when she ran a stop sign. This happened because people aren’t perfect, and stuff like that happens from time to time.
The officer reports that he did not smell any alcohol from her. He relies on the fact that she was lost (even though her GPS was on her seat, and she admitted that she didn’t know where she was going.) He asked her where she was going and where she was coming from (she does not have to answer that question, you should never answer), but she did. She said was coming from the VFW hall place, a place the officer knows sells drinks. The officer knew the other place she was going to, and that she wasn’t there taking the most efficient route.
Officers left the totality of the circumstances, which translates to finding evidence that you’re drunk.
Here he said, she wasn’t taking the most efficient route to where she was going— again if she would’ve just not given him that information, because it’s totally voluntary and not necessary, then he wouldn’t have that to use it against her.
Then he asked her to step out of the vehicle to participate in a standard rate field sobriety test, which she did, but again she was not required to.
During the Horizontal Gaze Nystagmus (HGN), otherwise known as the eye test, the officer observed zero clues, yet he blamed her, saying that she wasn’t complying with his request because she wasn’t following the blue light. We see that she complied, wasn’t swaying, did exactly what he told her to do, and she advised him a lash fell into her eyes and was wearing contacts. He administered the test, and she tried for over four minutes. She did that test as well as it could be done, and there were zero clues but “her behavior made him think she was drunk”. Literally, she couldn’t have done it better, yet it’s still not enough. That’s another reason you never agree to a standardized field sobriety test.
Then he has her do the walking turn test. She does a fine job; she takes the perfect number of steps, doesn’t sway; it’s freezing cold out you can see her breath. At the suppression hearing, the officer tried to add a clue of her arms not being down on her side, but he did not indicate that being a clue in his report, and she started with her hands on her hips before the officer began the test.
He also stated her heel didn’t touch her toe in every step, it didn’t look like that from the video, but we didn’t have a body cam, so he could say anything he wanted. And then she swivels instead of taking tiny little steps when she turned around. The officer does demonstrate, but if you don’t know what the clues are asking you, you’re likely going to do it wrong. It’s extremely hard; that’s why you should never do it. She did an excellent job and still came up with two clues, maybe three.
And then, the one leg stand he has to stop his instructions when a car drives by because traffic is going by 60-70 miles an hour. Yet she does a great job, holding her feet up and counting aloud until a car passes by an extremely high rate of speed; just then, she dips her foot down momentarily. Even though he couldn’t even continue his instructions, he counted that as a clue against her.
These tests are designed in a lab under perfect conditions, not in the cold, dark, shoulder of a high-speed expressway.
She did is good as any human could possibly do on those tests, didn’t smell like alcohol, and didn’t slur her words even though he said she did; we could hear it clearly, but she did not.
He got what he needed to make an arrest because she talked and did a field sobriety test when she didn’t have to. If she had kept her mouth shut, not admitted to where she was going or coming from, not admitted to having consumed any alcohol, not incriminating herself, and not participated in a field sobriety test, he would not have had any evidence necessary to arrest her for a DWI.
I don’t know how the judge will rule on this case, and for this context, it just doesn’t matter. All the evidence they used against her came directly from her, and it was all things she could have not made any statements regarding. Had she just remained silent, not incriminated herself, and not participated in the impossible standard field sobriety tests, she would’ve easily prevailed or not been charged, to begin with.
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