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10 Oct 2017

On Retrial After Reversal of Conviction Client Found Not Guilty of DUI

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Julie Banner (not her real name) retained Port Saint Lucie criminal defense Attorney Jeffrey H. Garland for her appeal. She had been convicted of DUI and sentenced, among other things, to 120 days in St. Lucie County’s Crossbar Hilton. She was not a happy camper.

Attorney Garland moved for an appeal bond to secure Banner’s release pending appeal. An appeal bond was denied on the grounds that there was supposedly no reasonable likelihood of success on appeal. Attorney Garland appealed the trial court’s denial of appeal bond and was again given a “thumbs down”.

Although the trial and appeal courts denied appeal bond, the conviction was reversed on 5/23/17. The appeal tribunal found that St. Lucie County Judge Yacucci had improperly excluded a defense expert witness. Funny how an appeal bond was denied because there were supposedly no grounds for the appeal.

In due course, Julie Banner’s case returned to Judge Yacucci’s docket for retrial. Attorney Garland, meanwhile, filed a motion to exclude the intoxilyzer results based upon the police failure to allow Julie Banner to secure an independent blood test. Judge Yacucci granted the motion.

The defense announced ready for trial at the first docket call. Jury selection was completed on 10/3/17.

The evidence portion of the trial took place on 10/5/17. The State called two Fort Pierce police officers and introduced a video of Julie Banner performing exercises in a dark area of Jetty Park.

The State asserted that Julie Banner was intoxicated to the extent her normal faculties were impaired based primarily upon the video (which had no sound), an odor of alcohol, her admission to having been at the Jetty Bar, and the arresting officer’s claim that Banner backed her pickup truck into another car with a very loud crash.

The defense first established that, other than the alleged crash, there was no bad driving pattern. Next, police conceded that Banner’s speech was fine: no evidence of slurring or “mushmouthed” speech.

The video established that conditions were very dark. Police shone headlights, a spot light, and a flash light onto Julie Banner, and at her feet, as she was going through the process of performing the “exercises”. The defense pointed out that the contrasting bright lights, as well as the flashing police light bars, created a difficult circumstance to see and to balance.

Further, Julie Banner performed the exercises in roughly 4-inch heels on cobblestone pavers. If the lights in the eyes, and the contrasting darkness were not enough to disorient, then Banner was expected to perform the exercises in 4-inch high heels on a rough surface.

Although the arresting officer asserted there was a “crash” with a loud noise, there was no evidence of damage to Julie Banner’s pickup truck or to the other vehicle supposedly involved in the incident. Attorney Garland pointed out that the State could not escape its duty to present evidence by simply asserting there had been a “crash”. The State sought to avoid responsibility for proving its allegations beyond a reasonable doubt. By the time of closing arguments, the State was calling the loud crash a minor fender bender. Attorney Garland did not let the State off the hook for failing to present actual proof of the crash. On cross-examination, both police officers admitted there was no damage to Banner’s pickup truck and no pictures of damage to any other vehicle. Julie Banner and her passenger both testified there was no crash and no fender bender.

Port Saint Lucie DUI Defense Attorney Jeffrey H. Garland, P.A.

A trial is not an excuse for police failure to collect evidence or to testify coherently. The arresting officer testified on the stand that he carefully explained to Julie Banner how to perform the finger-to¬≠nose exercise. Problem was, the video contradicted the arresting officer’s testimony, and showed the officer doing a different type of touch-the-note demonstration. The arresting officer was forced to admit that he had forgot what he had actually done on the night of Banner’s arrest on 2/28/15.

The defense pointed out that this had been the arresting officer’s fifth or sixth DUI arrest. He was not sure. In addition, the arresting officer had been a cop for less than a year. The second officer had less than two years experience and seemed to have little to do with the arrest. Obviously, both officers were inexperienced generally, and were specifically not experienced with DUI arrests.

They jury found Julie Banner not guilty on 10/5/17 after just 55 minutes of deliberation.

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