Explaining Lack of Probable Cause in DUI 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. 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.
My client was probably shocked when I said "no questions." His look spoke volumes.
The judge asked the prosecutor if she had any evidence to present. She rested.
The judge asked if I had witnesses. I shook my head "no." The judge smiled back, letting me know that she realized the prosecutor's mistake.
The judge then asked the prosecutor if she had any argument. The prosecutor argued probable cause. I said something like "I agree with everything the prosecutor just said, except I disagree with her conclusion." Then I sat down.
The judge didn't take long in her ruling.
The judge ruled the state had not shown probable cause. None of the officer's observations were enough to cause to believe 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. 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.
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.
I thought the case would be continued. The officer must have been detained on an emergency call. 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 first witness was called by the defense. It was my first time in that court. She was probably wondering if she had 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.
- Explain how you will act under different circumstances during litigation. You won't have time to explain your methods on the fly.
- If you know the prosecutor screwed it up, don't ruin it by telling the judge what the prosecutor did wrong.
Probable cause is the sum of the police observations:
Judges need specifics, not conclusions from witnesses. If not, they'll need to dismiss the case if they are acting consistent with their judicial oath.