Past Case Stories
Jersey City Municipal Court
This DWI case appeared to be a difficult one to win at first glance. The officer wrote a very detailed and damaging investigation report. The client allegedly drove without his lights and made an illegal lane change. The investigating officer claimed that my client performed miserably on all of the field sobriety tests. Supposedly, he had a strong odor of alcohol on his breath, bloodshot eyes and had poor balance in general. The breath test results were over .15%.
Through further investigation, I discovered that the client had physical issues with his legs, which would have affected his balance and performance of the field sobriety tests. He also suffered from gastroesophageal reflux disease (GERD), which could have caused a false breath test result.
An expert witness was engaged to write a report concerning both medical issues in order to convince the prosecution to dismiss the DWI charge. In response to the expert report, the prosecution made an offer to resolve the case.The client was rightfully unsatisfied with the offer, which did not involve dismissing the DWI.
We decided that the right course of action was to take the case to trial. After persevering through three postponed trial dates at the request of the prosecution, the judge finally forced the State to proceed with its case.
The breath test operator failed to show for court, so the State could not enter the Alcotest results into evidence. Therefore, when we began the trial, half of the case was already won. The rest of the defense case was based upon convincing the judge that the State’s main witness was not credible.
Through cross-examination, it became evident that the investigating police officer had a poor memory of events and was hostile. The officer refused to answer basic questions in a straight forward way. He could not remember key aspects of the client’s driving behavior. All in all, the main witness for the State turned out to be a bad one. As a result, the prosecutor wisely decided to offer to dismiss the DWI.
The lesson to be learned by the reader from this case story is one that I learned years ago. A case is never decided on the strength of a police officer’s investigation report. A thorough and persistent cross-examination should always reveal a bad witness. And that is how many cases are won at trial.
Long Beach Township Municipal Court
This client was facing a second offense DWI and drug possession charges. If convicted, he was looking at potential time in jail and a 4 year license suspension.
The case involved an allegation that he was driving under the influence of marijuana and possessed marijuana while driving. A drug recognition expert (DRE) did an evaluation of the client after the arrest and formed an opinion that marijuana had affected the client’s ability to drive. Furthermore, a urine sample was taken, which came back as positive for the presence of marijuana. Finally, marijuana was seized from the glove compartment of the car he was driving.
Fortunately, I had already received extensive training concerning drug recognition evaluations and laboratory drug testing. Therefore, I was able to determine from the report of the DRE that there was very little indication the client was under the influence of marijuana. Contrary to the opinion of the DRE, the client’s motor skills and vital signs appeared normal. I was confident that the State could never prove the DWI charge.
Next, I attacked the laboratory testing. After getting numerous documents from the laboratory, it was evident that the lab did a poor job of testing the urine sample. There were indications that proper laboratory procedures were not followed. So, I convinced the client to hire a forensic chemist to write a report criticizing the laboratory procedures and the conclusions of the lab scientist.
After six months of battling over the case, the prosecutor finally acknowledged that he was going to have difficulty proving the charges. As such, he dismissed the DWI charge and allowed my client to enter into the conditional discharge program for the marijuana possession charge. The conditional discharge program is a pretrial probationary program. After the client completed the conditional discharge program, the drug possession charge would be dismissed and a petition for expungement of the record could be filed.
In this case, proper training concerning drug testing and drug recognition evaluations made all of the difference in determining if the State had a solid or weak case. Moreover, getting the right expert witness to write a report was the final factor in tipping the scales in the client’s favor.