Defending a Refusal to Perform the Breath Tests

Interviewer: Are most refusals pretty defensible, or are they hard to defend and get overturned?

Dale: A refusal gives you a “different hand” with which to play. If I have a client that looks good on the field sobriety test, and looks good in the booking room and it’s a refusal, now the card that I’m going to play is one hundred percent not guilty. The issue that you have to deal with is why did the client refuse to take the breath test? That’s a hard one. Some clients will say, “Because every time I see a judge or a prosecutor that’s been charged with an OVI, they refuse.”

Interviewer: The refusal has its consequences both on the criminal side of the case and the license side of the case?

Dale: Yes, absolutely.

Interviewer: Anything else about the Intoxilyzer-8000 or breath tests that you want to talk about that we haven’t talked about, yet?

Dale: No, nothing more about the Intoxilyzer-8000 except stay tuned, because we’re waiting for Court of Appeals decisions to come down. So far all we have are the Municipal Court decision, and a decision in a Municipal Court in another county is not binding. For example, one in Summit is not binding on Cuyahoga.

Interviewer: Can you cite some examples of some of the most unusual or spectacular OVI cases that you’ve worked on? What happened to the person who was charged?

Dale: Not long ago, I handled one case in a very tough court. I had obtained the video – and the police had stopped my client for weaving. So, I filed a motion to suppress on the grounds that there was no reasonable suspicion for the stop.

Now, I know this is a tough court that always gives the benefit of the doubt to the officers. This happened to be a State trooper, and the State trooper took the stand and said, “Well, you can’t see it on the video, but you know I could see it in the car. What I see in the car is totally different than what you see in the video.” And the judge didn’t buy it, and he came to the conclusion, in fact, after watching it for the fifth time, it was the trooper that was drifting on the road, not the defendant. So, that was a case that I considered pretty remarkable and the case was dismissed altogether.

Alternatively, I did have a case go the other way. I had a case where I had the officer testifying that all he did is see my client touch the line a couple of times, and the judge announced that she denied my motion. She announced that, “I watched the video in chambers three times, and I saw her cross the line.”

Interviewer: Was that judge is going outside of her allowable duties?

Dale: Exactly. It’s not what the judge knew; it’s what the officer knew at the time of the arrest.

Interviewer: How about if you had a case where the odds were stacked against the crime, and you thought it was very doomed, but you were able to obtain a good result for your client?

Dale: Well, that case in Wadsworth, which I just mentioned was one. That was in the tough court. You pretty much know where you’re going with these cases. After discovery, I know pretty much our odds, the probabilities, and they usually turn out very close to those probabilities. So, I’m never really surprised at the outcome.

Interviewer: Do you have any surprises you could talk about?

Dale: Actually, I was surprised when that judge said that she watched the video, and she decided that the client crossed the line. That decision was surprising to me.

Interviewer: Are there any other stories you want to tell?

Dale: Well, this is an interesting case, but again, I found out through discovery what goes on. That is the main reason why you do your discover in the first place. My client was tested at a remote location that was part of the Sheriff’s Department, but it’s really an unmanned post, where they have the Breathalyzer. And I went out to look to see how they calibrated it, and I picked up the phone outside the door, and it goes directly to the main office, which is about 20 minutes away and they said, “We’ll send somebody over to let you see it.”

Well, I waited 45 minutes, and the deputy that opened the door said, “Well, I really don’t know how to operate the machine. I’m not a senior operator, but the person that calibrates told me to give you these two sheets.” And I said, “Well, I need to see everything.” He says, “I don’t know where everything is.” I poke my head around the corner, and the machine was being calibrated.

It became apparent to me that the person that was supposed to calibrate the machine was delegating his duty to someone else. And this person wasn’t qualified to do it, or at least did not have the credentials to calibrate the machine.

That part of the case was kind of a surprise, but it wasn’t a surprise when I was able to obtain a reduction for my client.

Interviewer: What is your client’s highest blood alcohol level that you have encountered?

Dale: Actually, I think I’m dealing with it right now, and I think the level is 0.47.

Interviewer: Wouldn’t that level render someone dead or close to death?

Dale: That level means that 47% of your blood is alcohol. I don’t even know how you’re alive. But, truthfully, I think I’m going to obtain a successful outcome for this client.

The officer stopped my client for driving slowly. He did not charge him for impeding traffic. I have case histories that say slow speed does not give rise to reasonable suspicion for a stop.

Interviewer: So, you might be able to challenge the charge and get the case dismissed based on inadequate reason for a stop?

Dale: Yes, if I win that case, I’m not going to be surprised because I do have the case law.

Interviewer: How does the person react when their blood alcohol level is that high? Was your client unable to even stand? How did your client manage to drive?

Dale: It’s one video I’m not really anxious to look at. What I am going to say is that there was no reasonable suspicion for the stop.

Interviewer: Was the person functioning or did they tell you they were functioning, or what did they say about the incident?

Dale: They didn’t remember very much of the incident.

Interviewer: With the past clients you have represented, what are the highest numbers of prior convictions that you’ve ever encountered?

Dale: I did have a case out of Summit County, and I believe the individual had close to nine prior convictions. But that was over a long course of time, and he avoided a felony conviction on all of them because it’s four in six, or six in twenty, and they always fell outside that period of time, so he never accumulated six in twenty or four in six.

Interviewer: Were you able to obtain a good result for that case?

Dale: I somehow flew him under the radar into – they have a special DUI Court where your client can receive minimum sentences and treatment.

Interviewer: Do the courts ever order drug and alcohol screenings for people? Can the courts order people to attend against their wishes?

Dale: It is in your best interest to have many different plans, because you don’t know what’s going to happen in these cases and they move along pretty fast. Plan A, you plan have the charges dropped or dismissed one way or the other. Plan B is if that does not occur, what can I do to receive the lightest sentence possible?

If any of my clients have multiple OVIs I encourage them to attend alcohol abuse classes. I encourage them to undergo a Drug Alcohol Assessment, and I make sure they follow through those recommendations before we go to court, so I have a weapon in my file should the bottom fall out of the case. I can tell the judge my client voluntarily submitted to a Drug Alcohol Assessment and followed all of the recommendations.

Interviewer: How often do you recommend the treatment before your client goes to court?

Dale: I have recommended it multiple times, especially when I have clients with multiple OVIs; two in six.

Interviewer: How about first offenders?

Dale: I do not recommend treatment for my first offender clients, unless they have had an extremely high test result, such as 0.25 and above. This is the thinking on the higher reads. With levels over 0.17, the penalties can double.

This is what they teach the judges at the Judicial College. Anyone that has a blood alcohol level of 0.17 should not be able to function at all much less operate a vehicle. Therefore, they have built up a tolerance to alcohol, and they have a problem.

Drug and alcohol counselors do not agree with that but that is what they teach the judges at the Judicial College.

Interviewer: Besides the drug and alcohol screenings, are there any other tools you can use to help for strategize Plan B for your clients?

Dale: There are many aspects to this kind of case. A conviction affects people’s lives in so many ways. First of all, if I think they will be sentenced to jail time, some prior planning has to occur. It’s timing. When could my client get off for vacation from his or her job? If the answer from my client is, “Oh, it’s going to be four months from now.” I’m going to play the case out for at least four months, so that they have vacation time to cover any jail stay.

So, I look at I try to mitigate the impact of a conviction. I try to make sure they don’t lose a job. Also, I work hard to have them drive, legally. Those are things that you do as you’re litigating the defenses, in order to help your client as much as you can.

Interviewer: So you’re not just providing the service of legal defense, but you are helping orchestrate the events to keep their life on track without it getting derailed?

Dale: Yes, that’s a goal. I don’t want a conviction, if it is unavoidable, to destroy my client. Many people could be destroyed by a charge of this nature but I take my responsibility very seriously.

I say I’ll handle everything from beginning to end. All that you have to do is what I ask you to do, and show up when I tell you to show up. I want to handle everything else, and then you can get on with your life.

Interviewer: What other things have you found that you can tell people to do so they can help themselves, or that you can do to help them?

Dale: I highly recommend the Drug Alcohol Assessment and the treatment. The most basic advice that I tell my clients to do, and I have to keep on reinforcing it is, “Don’t worry about it. Don’t dwell on this. Don’t let it own you because worse things will happen by being all-consumed by this instead of doing what you have to do, at work, or earning your living, or being a father, or a spouse, whatever. Don’t let it interfere with that.”

I reassure my clients by saying, “We’ve got something. We’ve got something to work with. We’ll get this done.”