I often see a bumper sticker put out by the Nashville Songwriters Association International that reads, “It All Begins With a Song.” It reminds me that, when it comes to defending a client charged with driving under the influence (DUI), it all begins with a stop.
Assessing potential DUI defenses and using those defenses in plea discussions with the state begins with an in-depth assessment of the traffic stop performed by officers. This includes not only constitutional grounds, but the rules of the road and even the internal policies of a particular law enforcement agency.
The moment just before a police officer flips on his emergency equipment (that’s what the professionals call the blue lights) and signals to a motorist that he wants to pull that motorist over is critical. It is in that moment that the officer must have assessed some discernable reason to pull over the motorist.
The officer’s subsequent documentation of that moment – the one just before the blue lights come on – is similarly critical. In order to pull over a motorist (we professionals call that an investigatory stop), an officer must have reasonable suspicion based on articulable facts. If a court later determines that the officer’s stop was based on suspicion that was not reasonable and unsupported by specific facts, then the exclusionary rule dictates that any evidence obtained by law enforcement after that traffic stop cannot be used against the defendant. State v. Binette, 33 S.W. 3d 215 (Tenn. 2000). Mapp v. Ohio, 367 U.S. 343, 81 S.Ct. 1684 (1961). In other words, if the stop is bad, the case can be dismissed.
So, what are those vital facts? In many jurisdictions some officers – particularly those with DUI enforcement duties – have dashboard cameras. A review of that footage is vital to an assessment of whether or not the officer had a reasonable suspicion to pull over your client. What counts as reasonable? The good news and bad news is that it’s a bit of a moving target (no pun intended), meaning the individual facts of a specific situation matter a great deal. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657 (1996) & Alabama v. White 496 U.S. 325, 330, 110 S.Ct. 2412, (1990). If there is no videotape, then the officer’s report and testimony on the witness stand are the next stage of analysis. An officer who writes a cursory or incomplete account of the facts that led to his traffic stop could give your client a chance to make the argument that the stop was not supported by those critical, articulable facts.
A DUI conviction has major implications on your client’s life. It involves loss of licensure, supervised probation, fines and court costs and mandatory jail time. To give them the best defense, don’t forget that – no matter what happened after the officer pulled your client over – it all started with a stop. Rob McGuire