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04 Oct 2012

Police Argue Amongst Themselves As To What Really Happened: DUI Reduced To Reckless Driving

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On August 10, 2007, KWR was arrested by the Vero Beach Police Department for DUI.  The police alleged that KWR walked across a bar parking lot to get in his vehicle, then ran a stop sign.  Still, the police did not make a stop.  They waited for KWR to drive several miles to a Burger King.  After KWR had left the drive-thru, a VBPD car fell in behind him.

Following his arrest, KWR retained Jeffrey H. Garland to represent him in connection with the DUI and the formal review hearing.

The defense investigation would later document that the stop sign was twisted about 30 dgrees, perhaps due to hurricanes in 2004 and 2005.  The stop sign, as a result, no longer reflected light from an approaching car and was, effectively, invisible at night.  The investigation also established that the driveway or alley was unpaved, so that the intersection with the paved street would not necessarily require a complete stop.  These facts were known to the police at the time and probably made the police reluctant to make a stop.

The Arrest Affidavit states that KWR made a wide turn from US Highway 1 onto 17th Street.  The Arrest Affidavit further details KWR was weaving within his lane of travel, and that he crossed the center line.

All three officers involved in the arrest were subpoenaed to appear at the formal review.  The primary officer was actually in training and working under the direction of a field training officer (FTO).  At the formal review hearing, the young police officer in training testified that KWR was read his Miranda rights before the implied consent.  At that point in the formal review hearing, the other two officers tried to intervene to tell the neophyte police officer what really happened.  Initially, the hearing officer denied objections to the impropriety of the comments which were being made.  When the hearing officer took no steps to stop the improper conduct, Attorney Garland moved to disqualify the hearing officer based on bias or prejudice.  This apparently got the hearing officers attention, who then told the police officers to cut it out.

The video tape plainly contradicted the testimony about bad driving.  The video showed that KWR made the turn from US Highway 1 onto 17th Street in a safe and prudent fashion.  The right lane ended, and the video showed that the driver made a safe merger into the inside lane.  The video showed no weaving.  The only time KWRs car moved toward, but did not cross, the center line was at a railroad track where there appeared to be something in the roadway.

The video further contradicted the officers at the scene of the stop and subsequent arrest.  Contrary to the officers assertions at the formal review hearing, KWR advised them that he had extensive physical problems.  The video from the breath testing room confirmed this.  KWR was fully cooperative over an extended period of time.  Although he refused to perform the standardized field sobriety tests (SFST), he was shown standing erect and moving in an appropriate fashion.  For unknown reasons, the sound had been somehow removed from the road and roadside CD.  Fortunately, the sound was still present on the breath testing room video.

Attorney Garland moved to invalidate the suspension due to a lack of reason to stop KWR and to place him under arrest.  The most significant objection involved the confusion doctrine.  Under this doctrine, the police cannot read a person their Miranda rights, then refuse the opportunity to speak with counsel when the implied consent warnings are subsequently read.  It is necessary for the police officer to clarify that there is no right to consult with counsel on the implied consent issue.  In this case, the neophyte officer admitted that KWR had requested to speak with a lawyer.

Although the hearing officer at the Bureau of Administrative Review was unwilling to invalidate the suspension, the sworn testimony was used by Attorney Garland to secure a reduction in charge from DUI to reckless driving.  The following problems were found in this DUI prosecution:

1.    The sound was missing from the digital recording.  How would this be possible, without tampering?

2.    The video component did not show bad driving or justify the stop of the vehicle.

3.    The video component did not show evidence of impairment after KWR got out of his car.

4.    The confusion doctrine provided a legal basis for suppressing KWRs refusal to submit to a breath test.  If not suppressed, the officers misinformation provided a reasonable basis for explaining the refusal.

5.    The breath testing room video contradicted police assertions.  In fact, KWR explained his physical limitations, and his speech was clear, concise and comprehensible.  The police had asserted his speech was slurred and mushmouthed.

6.    The stop sign was twisted and did not reflect light.  There was no requirement for a driver to stop in the absence of a visible traffic control device.

7.    It was apparent that the entire case involved a neophyte police officer still under the supervision of an FTO.  The police were arguing amongst themselves as to what supposedly happened.

For all of these reasons, the State agreed on October 24, 2007, to reduce the DUI to reckless driving.

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