More Than One Way To Skin A Cat
When looking at a DWI case, defense attorneys are looking for a path to victory. How can we get the test suppressed? How can we beat the test result? Were constitutional rights violated? These are just some of the “paths” attorney’s will consider in forming their defense. In many cases, simply finding one valid path will result in outright victory.
Our belief at the Ramsay Law Firm is that there is a way to defeat every DWI and sometimes there is more than one way to do so. Case in point, we recently found two completely different ways to defeat a DWI for one of our clients and we needed to utilize both ways. How did this occur and why did we need to find a second path to victory? Allow me to explain …
A client of ours was charged with DWI test refusal because she did not give enough air for the DataMaster to register a reading. Her license was revoked in addition to the criminal charges. Our first challenge was against the license revocation. We proved that our client was physically unable to give a breath test and that she did not refuse. The judge agreed and rescinded the license revocation.
The prosecutor in the criminal case was not bound by this decision. The state informed us they intended to go forward on the third degree refusal and fourth degree “impaired” charge. Our first thought was: fine, we showed the physical inability in the civil case and we can do it again. However, there is a wrinkle: if we prove the physical inability defense in the criminal case we would have to do so at trial. And at that trial the preliminary breath test (PBT) result would be admissible. Note: PBTs are generally inadmissible, but there is an exception when the charge is a DWI refusal.
So, even if we were successful at trial and defeated the refusal charge, the jury would still hear the PBT result and it would be very difficult to defeat the general “impairment” charge. We needed to get rid of the refusal charge before trial so the state would not be allowed to introduce the PBT as evidence.
Jay Adkins handled the contested hearing and he was able to find yet another way to win. He showed that the phones used during the Implied Consent Advisory were not working properly until after our client agreed to take the test. The technical issue was eventually resolved, but not until after our client agreed to take the test and was waiting for the test to begin.
The court agreed with Jay that the ability to consult with an attorney must come before deciding whether to take a test or not. Accordingly, our client’s right to consult with an attorney was not vindicated and the court suppressed the refusal.
We will now go forward to trial knowing that the refusal charge is gone and our client’s PBT result is inadmissible.
This post is not to brag, it is simply to show that there is indeed more than one way to beat a DWI, and sometimes, you need two ways to win in order to achieve the ultimate goal of an outright victory.