SHOULD I GO TO TRIAL??

When an individual is arrested for D.U.I, or for that matter any other crime, the last thing that passes through the thinking proceses is a "trial". The only thing that is important to the defendant at the time is "how quickly can I get out of jail". But, anyone charged with a criminal offense is entitled to a trial.

Whether to go to trial on any criminal matter requires an analysis of the prosecution case; What was the reason for the stop? Did the probable cause affadavit mention that the defendant fumbled for his license or other requested paperwork? When the defendant stepped out of his automobile did he walk normally? Is there a roadside videotape of the defendant and does it show him performing the field sobriety exercises? Does the arrest affadavit mention that the defendant fell asleep in the patrol car on the way to jail? Does the defendant look good or bad on the tape made at the jail?

So what was the reason for the stop? Was it speeding? Well, that is good because I have made arguments to the jury that it takes greater skill to handle an automobile at a higher rate of speed rather than at a slower speed! Or was the reason for the stop is that the defendant left his lane of travel, almost colliding with other vehicles, and the cop witnessed it all and has it on tape! Did the probable cause affidavit mention fumbling for paper work? If not, then good. Because if the officer on direct examination by the Assistant State Attorney suddenly remembers that the defendant fumbled, I on cross- examination will ask where in his probable cause affidavit did he mention that fumbling? I will then point out that he wrote the probable cause affidavit right after the arrest when the incident was freshest in his mind. I will then ask him to admit that the probable cause affidavit was completed under oath(which it was). What did I just accomplish, I made the cop out to be either a liar or stupid.

The same can be said of the defendant walking normally. If, the officer failed to mention in his report that the defendant staggered or stumbled I can use that. I will ask the cop on cross examination "isn't it true that the defendant walked in a normal manner when he exited his car? Again, it is the same as before if the officer didn't write something in his report in black and white then it can be twisted. Even if it is in the report there is a chance it can be twisted to favor the defendant. Is there a videotape of what occurred at roadside? Is it a clear videotape? Does the aduio work well? If the videotape does not back up what the officer has written in his report then that is good! But, chances are at time of trial the officer will say the camera angle was bad or the video equipment was not functioning that night. Well, if he does say that, I can point out that he could have placed his car at a more advantgeous angle or ask him whether he reported the video equipment as malfunctioning(the officer has a duty to report malfunctioning equipment to his supervisor and it is probably in the department procedures manuel that he is required to do so) . Also, it can be pointed out that the officer is not the only officer on duty that night with a video equipped car and that he could have requested assistance. However, if there is a dash mounted camera and the video and/or audion is clear and the defendant looks bad it is probably not a good case to try(assuming that the evidence is not suppressed).

Falling alseep in the back of the patrol car is not a good idea especially if there is a dash mounted camera. The camera can and will be swung around when the defendant is placed in the back of the cruiser. If he falls asleep the camera will probably catch it. What about the video at the jail? Well, if the defendant looks good and by good I mean no slurring nor hesitating over the rountine booking questions, then that is good. I can break it down on cross to point out that the defendant walked across the room, stood on the yellow X, wasn't swaying and didn't loose his balance. All good to work with. But if the defendant sounds slurred, has trouble with his balance, hesitated over his address or hair color, then this might not be the best case to go to trial on.

This is but a brief consideration of some of the factors I will consider. In any event the decision whether to go to trial rests with the defendant. If a trial is requested then a trial he/she will get.

I may be reached at 561-616-8700 or by e-mail at DUITIM@floridaduilawyer.com. My website is www.floridaduilawyer.com.

Copyright 2008