Sunday, March 17, 2013

DWI Probable Cause: The Shadow of Doubt and the Importance of Timing

Is the world just white and black? from 

So often people love to paint everything as black/white, or yes/no. I guess it is easier to understand and digest if the world were all so easy. Decisions being right/wrong and good/bad, but alas Virginia, it is not so and never has been.

Why Do they Call it the "Shadow of Doubt?"

In the world of legal defense and the law in general a great many issues and problems come in varying degrees and shades of grey. Yes sometimes grey is dull and lifeless as a color but more importantly things need to be viewed by a DEGREE. The color grey is much like that shadow that casts doubt. People often say, "Beyond a shadow of doubt or without a doubt."

Forget Was and Focus on When

Most law and legal issues are a matter of degree and perspective. In the matter of New York DWI arrests most lawyers and laypeople ask the basic question, "was there PC (probable cause) to make a DWI arrest?"
This is a rather low standard, and usually easily met by the police. Most cases are going to have a WAS.
I believe that the better inquiry in many cases is the "When?" question.

The When Question in Finding NY PC for a DWI Arrest

"When did you decide to arrest for the DWI?" "At what point in your investigation did you make the decision to charge and arrest for DWI?"

Why is the point in time of an arrest so important in a New York DWI case?

Such Confusion, Which bed is best? from

The Three Bears

I love children's stories. They have simple messages. So clear and concise and much like the childhood story of the Goldilocks and the three bears, one bed was too soft, one bed was too hard, and the last bed being just right, there is a point in time in any DWI arrest to be at that "just right" point. Police have to be, as they say on the money, or at least within the range of reasonable. If you don't like my rendition of the three bears you can have the porridge temperature version instead.

What is PC (Probable Cause)?

Reasonable and trustworthy information that a particular person has committed a particular crime.
In a recent DWI case, a defendant hit a car, stayed at the scene, and had his friends drive his away. Then the troopers showed up. He was in fact, drunk as a skunk. Standing next to the car he hit and damaged. He smelled of alcohol, looked wasted, and walked it.


But there was no car, no witnessed driving, and he was charged with two DWIs (common law and breath test) based upon his own admissions of driving.  The Court tossed the case for lack of Probable Cause. Not enough evidence of the crime (DWI) being committed by this particular person on this particular date. They (law enforcement) cannot make a criminal case solely upon your admissions to it.

Too Quick is Bad for the Police

If the police are too quick in their decision making process, then they have maybe rushed to judgment. Maybe there is in fact insufficient evidence of common law DWI? After all their investigation is an evidence gathering process. Did they stop short of the goal?

Too Slow is Bad for the Police (damaging)

If the police take too long to make an arrest decision then maybe they were unsure of a motorist's intoxication and/or impairment. Maybe they needed to do seven or eight field sobriety tests instead of the standardized big three for a reason. Their uncertainty can be leveraged and harnessed by a DWI defense attorney at a later date to cast a shadow (s) of doubt on the process and the arrest, and most importantly the charges.

Take Away: Remember Police have Stages of DWI Investigation

STOP of the Car
First Contact with the Motorist
Exit of the Car
Sobriety Testing
Questions and Answers
Portable (field/roadside) Breath Testing
Arrest Decision

At each and every stage in the process they are assessing, gathering, recording, and most importantly deciding what they will charge and WHEN they will charge it.

Larry Newman
Doctor of Chiropractic
Attorney and Counselor at Law