Lack of Probable Cause in DUI Cases
Learn what constitutes probable cause to arrest in drunk driving cases.
Probable cause to arrest is defined as roughly:
Given the information available to the police officer at the time of your arrest, would that information cause a reasonable and cautious person to believe that a crime had been committed.
Probable cause to arrest is different from reasonable suspicion to detain you to investigate. While the driving and the initial observations of symptoms of drinking will usually suffice to establish reasonable suspicion, more is needed to rise to the level of probable cause to arrest.
Your driving is relevant to the determination of probable cause to arrest, and it is evidence that can cut both ways. For example, if you are weaving all over the place, it is a factor that would cause a reasonable person to think that alcohol or drug impairment could be a cause. On the other hand, if there was no bad driving (perhaps you were stopped at a DUI checkpoint, or for a broken windshield), your DUI attorney may have a good argument that your good driving (or the lack of observable bad driving) would lead a reasonable person to believe you weren’t impaired.
As long as the defense is able to establish that you were arrested and that the police didn’t have an arrest warrant at the time, the trial judge is then obligated to weigh all of the evidence to make a determination. The facts that they use to make the decision must be specific.
Real Case Example #1
I won a dismissal in a DUI case when the prosecutor asked the officer what he based his arrest on. The police officer responded that it was based on the field sobriety tests, the driving, the odor of alcohol, and the admission by my client that he had been drinking. The prosecutor then ended her examination.
My client was probably shocked when I stood up and said “no questions.” The look on his face said something to the effect of “what am I paying you for you lazy $@@$@%.”
The judge then asked the prosecutor, who was looking very smug, if she had any other evidence she wanted to present. Thinking she had it in the bag, she rested.
The judge then asked me if I had any witnesses. I smiled and shook my head “no.” The judge smiled back, essentially letting me know that she realized the prosecutor’s mistake.
The judge then, in a challenging voice, asked the prosecutor if she had any argument. The prosecutor proceeded to outline what the officer had said, and argued that it was probable cause. When it was my turn to argue I said something like “I agree with everything the prosecutor just said, except I disagree with her conclusion.” Then I sat down.
Fortunately, the judge didn’t take long in her ruling because my client looked like he was about to strangle me.
The judge ruled that the state had not met its burden of showing probable cause because none of the officer’s observations were in and of themselves, or in combination, enough to cause a reasonable person to believe that a crime had been committed. The field sobriety tests may have been enough, but since the prosecutor failed to present any testimony about the specifics of the tests, and instead relied on the officer’s blanket conclusion, there were no facts in evidence for the judge to consider.
I leaned over to my client and told him to leave the courtroom immediately, to not look back, and that I would call him to explain. As I slowly packed up my briefcase, the prosecutor frantically moved the judge to allow her to reopen her case and allow the officer to testify to fill in the gaps. But it was too late, her mistake had been made and double jeopardy now prevented the judge from litigating my client’s case again.
Real Case Example #2
This case was a DUI prosecution in a very small town with a fairly inexperienced prosecutor. We brought a motion to dismiss because the state lacked probable cause to arrest. It was a low probability motion, but under the circumstances worth bringing to test the prosecutor.
At the time the case was called the arresting officer was not there. Now in case you haven’t figured it out yet, the arresting officer made the arrest decision. He is the one who must testify about his reasons for that arrest decision.
At that point I was prepared for the state to move to continue its case because the officer must have been detained on an emergency call or must have had some other good excuse. Feeling pretty confident in his case, the prosecutor announced “ready.”
The judge said to the prosecutor, “call your first witness.”
The prosecutor said “I don’t have any witnesses, I’ll get what I need out of the defense witnesses.”
“Ok,” said the judge. “Then does the state rest?”
“Yes, the state rests.”
“The defense may call it’s first witness,” said the judge, peering over her reading glasses. It was my first time in that court, and she was probably wondering if she could possibly have the two least experienced lawyers in the state in her courtroom at once. After all, at the time I was in my late 20′s, but looked like I was 15 years old.
“The defense will not be calling any witnesses today, your honor,” I said.
“Very well. No need to hear argument on this, the Defense’s motion is granted. Case dismissed.”
I leaned over and told my client to get out of there and don’t look back. I love saying that!
The Moral of the Two Examples:
Here are the morals of the two examples above in no particular order:
- Never underestimate a young prosecutor’s ability to overestimate his or her abilities.
- Never shy away from a low probability motion, you never know when the state is going to drop the ball.
- For DUI lawyers, make sure you explain how you will act under different circumstances during litigation because you won’t have time to explain your methods on the fly (especially when you are telling your client to run out of the courtroom).
- If you know the judge gets it, and the prosecutor screwed it up, don’t ruin it by telling the judge what the prosecutor did wrong… you don’t want to give the state any chance to correct its mistake until you hear the words “case dismissed.”
Probable cause is the sum of the police observations:
Judges need specifics, not conclusions from witnesses. If they don’t get specifics, then they will be forced to dismiss the case if they are acting in a manner consistent with their judicial oath.