- Hello and welcome. My name is Bobby Reiff. And I will be presenting today a lecture that I entitled "Exposing the Myths of a DUI Case" to help you win the war of DUI cases. Learn and laugh from some war stories from me, Bobby Reiff, and my almost 40 years of defending accused drunk drivers. Now you might think, why did I write such a lecture? Well, people who've heard me lecture before said, "Bobby, we really like your lectures. And we really like the war stories because that really brings it home for us. So could you do a lecture with law war stories only?" And so I said, "Okay." And that's what really made me sit back and think about the past 40 years. And so I start in the beginning. One of my first jobs was at a legal aid clinic at the Boston University School of Law. And after I had completed my internship, the review written by my professor, I thought it was rather interesting. He wrote, "Bobby litigates like he plays ice hockey. He is always forward checking." And then I received a job offer from Janet Reno, then the state attorney for Miami. And I remember going back home, 'cause I lived in New York, and I told my parents that I'd be moving to Miami. And this was in the early 80s. And my dad stopped and he said very contemplatively, "Hmm, crime, Miami? Yeah, it's a growth industry." And shortly after I began work there as an assistant state attorney, coworker came up to me. They said, "Bobby, which division are you gonna sign up for, DUIs or misdemeanors?" And I said to him, "Oscar, what's the difference?" He said, "Well, if you get DUI division, you get jury trials. But in misdemeanors it's bench trials only." So I of course said, "Well, in that case DUIs, definitely," because I wanted those jury trials. Now you might think, well, what do we learn from this story? Is it that sometimes it is just dumb luck that shapes our future or as Yogi Berra once said, When you come to a fork in the road, take it. No, actually the lesson is this. If you're going to do something, learn to do it better than anyone else. Be the best that you can be by researching, reading, and thinking about what you are doing and how you're going to do it more creatively, more efficiently, and of course in private practice, more profitably to be better. You know, there's an old saying, a good lawyer knows the law. A better lawyer knows the law and the reason for the law. The superior lawyer knows the law, the reason for the law and the underlying premise behind the law and is prepared to determine if the underlying premise is fulfilled by the way the law is being provided and applied in the case they are defending. Next section I like to call take time to scheme. And it applies to what I was just talking about. And these are words imparted upon me by one of my mentors, the great James Jay Hogan, before he passed away. Now what does it mean? Well, Jay, who was definitely old school, was very frustrated. He would sit in on meetings with other lawyers. They were talking about big federal cases that they were defending. And yet all they were doing is responding to emails, responding to great amounts of information. But nobody was sitting down and saying, okay, we have all this information. What do we do with it? How do we do with it? And so I took that to mean, put down your cell phone, step away from your computer, turn off your emails and ask yourself, okay, I have this information. What do I need to do? What else do I need to do with it? What type of cohesive narrative do the facts allow me to present? And how do I present this narrative from these facts? Working hard also requires you to work very smart. And let me tell you a story about one of Jay's cases. He was trying a big corruption case in Miami. It was a judicial corruption case. And there was an allegation that his client had taken $50,000 in cash in $100 bills at a meeting at a restaurant, stuffed it in his pants and walked out. And Jay took a moment and he thought about that allegation. And he said, "That makes no sense. How in the world could somebody stick that amount of money in their pants and walk out? It's just not realistic." So what he did is in his opening argument, he brought that up and he said, "Ladies and gentlemen, the government is going to present to you that Mr.," his client was going to, accepted $50,000 of cash in $100 bills, stuffed it in his pocket and walked out of the restaurant. We are going to present to you evidence that it did not occur. And then he slowly turns to the doors of the courtroom. And with that, the doors are busted open and in walked two Brink's bank cards, carrying large briefcase. And they come into the courtroom, they hand the briefcase to Mr. Hogan. Mr. Hogan lays him on a table. And in those briefcase are $50,000 in $100 bills. He says, "Ladies and gentlemen, we are going to show to you that $50,000 in $100 bills could not be stuck in somebody's pants." And I remember him taking the stacks of hundreds, showing them to the jurors, literally handing them to the jurors. And the judge, who was greatly, how should we say, yeah, I won't wont say excited, but greatly intrigued by Jay's argument. Let him do this. And of course the obligatory, excuse me, juror would take the $100 bills and try to stick some of them in his pocket and then give 'em back to Jay. But the point was made. So working hard also means working smart. And what that means is, think about things and take time to scheme, take all the information that you have been given and figure out what else do I need? Where else should I look? What type of story, duties, facts allow me to present? And what type of narrative of defense do I have? How can I creatively present that narrative? So I like to call this next section amass the evidence, then scheme. We have the ability to gain so much information that just wasn't present for people previous to this generation. The internet, computers, email messages, allow us to request all kinds of documents, whether it be from public agencies, or from other lawyers by just sending out an email, hey, guys, anybody know anything about this witness or about this issue? We have the ability to request officer training records. In my cases, I always ask for their global and alcohol testing profiles. The global is all their records about their qualifications as a police officer. And the alcohol testing is more specific to the breath alcohol testing facility abilities and any permits they may have received. And that gives you their training records. And so when I question an officer and I start going to their training, all of a sudden, what is the officer thinking/ Oh my God, this guy knows who I am. He knows what training I've done. And these are the type of things that prevent an officer from test a lie, from filtering their testimony, because they know if they do something that is outside of the truth, at least they think, you already have the information that will show that they're not being truthful. Transaction archive reports, radio transmissions. These are available by public records requests. How about sending an investigator out to try to get local store security or traffic video fees? If you have administrative hearings, which are pretty present in most states, testimony in those administrative hearings. Preliminary hearing or deposition testimony from prosecution discovery filings. But make those public record requests, obtain prosecution training materials. That's something I request all the time. I will send a public records request to our local prosecutor's offices and say, I want your training materials for DUI cases. I want your training materials for obtaining subpoenas for blood in serious bodily injury or death cases. So I have exactly what they advise their people to do. And I request this also from the police agencies, so that if an officer deviates from the requirements, I can show that they deviated from what their guidelines are. Or if they say, for instances, I've had recently in several cases, oh, it was too late for me to obtain a search warrant for the individual's blood, I can then question 'em, well, they've laid out the guidelines. This is what they tell you to do. They've created forms for you to fill out on your laptop that's in your patrol vehicle. You had all of this ability. You knew exactly who you had to reach out to and how to reach out to them. And you could've designated another officer to assist you in that job as is permitted in your SOPs. Request office of disciplinary records and overtime records. Are they making a lot of money, because they're prosecuting or arresting DUI offenders? And locate judicial opinions by your presiding judge. I have a very large source and, well, number of cases that I keep in my computer research folders, shall we say, all kinds of opinion by topic. So if there's a particular search issue or stop or a rest, I have all of those things in my computer. But rather than just stopping at that area where I save these opinions to the subject, I save these opinions to the judges as well. If I see a local judge has written an opinion or had been affirmed or reversed by an appellate court, I keep those opinions also designated by that particular judge. And then I like to throw them in the motions that I am writing. On several occasions, I've written motions, and then when I'm arguing the motions, I'll throw in, by the way, your honor, I want you to pay particular attention to the well written opinion in state v. so and so, which is the opinion that the judge has previously issued on these facts. And I've done that in several cases and the judge will even kinda, they'll give me a smile. Like yeah, I remember that case. And yeah, I granted that motion to suppress on these very same facts. And so that has great effect. So has your judge ever issued an opinion on the issues that you're raising? Well, find those things or in the administrative cases, the driver's license cases, I recently was arguing a case and I had found that one of the same administrative hearing officer that I had had in this case had ruled against the driver and was overturned on appeal. So I could pull out that case and say, by the way, you've previously had this issue and the appellate court said you must invalidate the suspension. Be creative, now in my materials, I make reference to the dumpster diver. Well, that again is another Jay Hogan tribute. Jay had a case where he knew that the individual who was the government's primary witness lived at a particular location. And so what he did is he sent the investigator out on garbage day. And what would happen is the offender or his child would roll out the garbage can on certain days for the garbage pickup. And after they'd rolled it out, maybe two or three in the morning, the investigator would grab papers from the garbage. I mean, it was a stinky job, I agree, but they would pull out the papers. And you could imagine some of the writings that they found. So when that particular witness got up to testify against his client, he had all this material from that individual's very mouth or his writings, I should be more precise in that. So he could cross examine him about things that he had written down in papers. Be creative, amass the evidence, and then scheme. And I'll tell you, it's so important for us to really do a thorough job in what we do. This next case, the Billy Case, I call it it's not cocaine. Ms. Billy was being prosecuted for DUI manslaughter. She had no alcohol in her system, but the lab, the government's lab said that she had cocaine and that she was therefore impaired by cocaine when she caused the accident by going over the double yellow line and crashing head on to another vehicle. And Ms. Billy hired an attorney. The attorney received the government's paperwork, said positive cocaine. And he went to Ms. Billy and he said, "I can get you the bottom of the sentencing guidelines of 10 years in prison, I think you should take that." Ms. Billy said, "But I wasn't on cocaine." And so she fired that attorney and she ended up hiring me. And I pulled the records for the blood test performed because the sheet her first attorney was given was just a conclusion. It wasn't the basis for the conclusion. You need certain chromatograms and other charts to determine them. And so when I looked at those charts, a couple inches thick, they didn't make sense to me. Now of course, I'm only an attorney. I don't have a big science background. And even though I can read those chromatograms, I realized I need an expert, so I sent them to my expert and my expert looked at 'em and he said, "Yeah, I agree. But, you know, since this is blood drug as opposed to blood alcohol, I suggest you hire this particular expert to assist. He's the person who literally writes the textbooks on blood drug testing. Let's see what he has to say." So we brought him in, he looked at it and he said, "No, this is not cocaine." And so we scheduled a deposition, which we have here in Florida with one of the few states that allows criminal depositions. And I brought in both experts and I introduced the experts at the beginning of the deposition. One had been the previous director of this technician's lab. The other of course was the well-esteemed professor and textbook writer and I introduced him and even pointed out, he probably wrote the textbook that you learned this subject from. Now Dr. Bednarczyk here, he does not see where's any cocaine in your chromatograms. And Dr. Bell over here, he does not see where you had any cocaine. So, please, and I pushed the papers across the table. Please look at your charts, your chromatograms, and please tell us where it is that you found cocaine. And he's looking through the papers one minute, two minute, three minutes pass. Finally, he says, "It was machine noise. There was no cocaine." And I know this wasn't a trial. There was no jury to impress, but I said, "Excuse me, can you say that louder?" I said, "There was no cocaine. It was just machine noise." So what do we learn from this story? Don't accept the prosecutions or their witnesses' word for their results. Obtain or all the supporting documentation. Go through it. Hire an expert if you need to to be sure that it is correct. Assume nothing, now the next example is what I call the Russell Case and the case of the fake lab director. Ms. Russell was also charged with DUI manslaughter. And in handling the case, I researched the background of the government's expert. I also engaged the services of a lab auditor, the wonderful Janine Arvizu, based out of New Mexico, to audit the expert's background and training. Well, what did I find when I had her check into his background and training? Well, it turns out his master's degree was from the university now based out of Africa, that that university was barred from issuing degrees in the United States, and by law, in several states. Graduates of this university were prevented or precluded from listing their degrees on their resumes or their employment applications. Essentially he had gotten his master's, excuse me, he had obtained his master's degree from a mail order factory. His undergraduate degree, I found, was not in chemistry or even one of the sciences. Even his LinkedIn page which I looked up didn't match up with his curriculum vitae, or CV, or his prior testimony concerning his background. And, yes, amassing the evidence, I put out word, "Hey, has anybody ever taken a deposition or courtroom testimony from this particular expert?" And when I read his prior testimony in his, whether it be his depositions or trial, he kept changing what his degrees were or where he got the degrees, or when he received the degrees. And further in obtaining the information from the laboratory concerning their procedures, I found that the laboratory's procedures did not comport with scientifically reliable guidelines. For instance, I found that his lab was retesting, excuse me, reusing testing viles to retest samples. And you might think, "Oh, Bobby, come on. This never happens, or if so, it happens once." Guess what, folks? This was the third lab director who I have caught lying about their credentials. Yes, the third lab director. So what do we learn from this story? People lie on their resumes. They don't necessarily follow good laboratory procedures. Do not take their word for their procedures, their expertise or their training. Do the work. And sometimes, folks, it's just a matter of perspective. I had a case years ago where just before I started picking the jury, I actually was out to lunch with Jay Hogan. And we were talking about jury selection. And we were talking about perspective, how people come into the courtroom and they have different perspectives, different ways of looking at things. And then when I was involved in the jury selection of a DUI case, I had this one particular juror, and he was terrible. I mean, he would say, "Oh, well, if the defendant is here, he must've done something." And all kinds of, oh, you know, the prosecutor's here, he must be guilty. Otherwise they wouldn't bring the case, and things like that. And of course after this juror or potential juror answers these questions in this manner to the judge, prosecutor's smart enough to get up there and say, well, Mr. So and so, you said this, this and this, but that doesn't mean you couldn't be fair to the defendant in this case. And he goes, "Oh, of course I can be fair." Now, I don't know if the judge was going to kick this guy off even after the prosecution had tried to rehabilitate him. But I was concerned about that. And so I got up for, when I was questioning him and somewhere in the middle of my questioning. I said to the juror, "Now you said all of these things. And when the prosecutor got up, he asked you, nonetheless, you could be fair and impartial and sit in this jury." And he said, "Yes, yes, I can be fair. And I said, "You know, sometimes life is a question of perspective. And I understand, and I could appreciate that you sitting here in the jury box amongst the other potential jurors, you feel that now withstanding these beliefs that you have, you can be fair to the individual sitting over there, Mr. Smith. But let me do something for a moment." And with the permission of the court, I asked the juror to step down and I had my client sit in the audience for a moment, get out of his seat. And I sat the juror in the seat that my client had just been sitting in. And then I walked around and sat in the jury box, sitting amongst the potential jurors. And I said, "Now, Mr. Smith, I know what you said, sitting here where I'm sitting now. And you said, nonetheless, you felt you could be fair. And I appreciate that. But you understand that where you're sitting now, you have a slightly different perspective. And if you were sitting there and I as a potential juror was saying the things that you just said, would it be fair for me to say that your perspective would be very different? And you would think to yourself, now this individual isn't being fair or they can't be fair?" And the juror looked up, kind of scratched his chin and goes, "You know, Mr. Reiff, you're right. I probably shouldn't be sitting on this jury, because I don't think I could be fair." Now here's the thing. It was a no lose proposition. Either he would admit that he was not the right juror for the case or he'd lose all credibility before the other members of the panel, may even have been struck by the judge. And the judge ultimately agreed to excuse him for cause. And I was able to ensure that she and others would have a teachable moment for the members of the panel to think about a matter of perspective. And as an aside, the jury came back in less than 15 minutes not guilty. So what did we learn from this story? Well, life is a matter of perspective. We all sit in different shoes. We look at the world through different classes, through different lenses. Put your jury in a position where they perceive things, the evidence, the testimony, as you want them to perceive them. The next story I call the Full Monty. And you might think, a Full Monty, what is that? Well, I had a motion to suppress. And one of the issues or the primary issue in the motion to suppress was my client had never dealt with the police before. He was unsure and very nervous about what was going on. And that after the officer ordered him out of his vehicle, the officer very roughly searched him so much so that he was literally shaking like a leaf in the wind as the officer then asked him to perform sobriety exercises, that he was so nervous and afraid that he couldn't have done anything. And so I remember in my cross examination of the officer, I asked the officer if he could step down and show the court how he searched my client. And he proceeded to start the search and I said, stopped him, and I said, "No, officer. I'd like you to search me as you did to Mr. Smith that evening. Don't hold anything back. I want you to give us and show the court the full search." And he proceeded to give a very rough, pushing search as he's pushing me against the box that I had my hands out to, and then he punctuated it with a hard karate chop to my groin area. Now I don't know if it was the way I jumped in the air or maybe my voice going up a few octaves, but I had made my point better than any cross examination questions could have ever done. And the result? Well, the motion to suppress was granted. So what have we learned by that story? Be creative, think. What will it take to show the fact finder, well, be it a jury or a judge, the true picture of what happened? And how can you make them feel like your client did that night? How 'bout the case of the lying cop, the Bedoya case? Police officer's testimony wasn't going very well for the prosecution, 'cause it was a motion to suppress. And sometimes officers start to go into what I call automatic bullshit mode, because that's what this officer started doing. He started go, he went into auto mode and he started testifying about how Mr. Bedoya had failed all the sobriety exercises and had failed, among other things, to touch his finger to his nose during the finger to nose exercise with both his right and left arms. Only one minor problem with that testimony. Mr. Bedoya's left arm had been paralyzed as a result of a motorcycle accident. He couldn't even move that arm. And that was part of the basis of my motion to suppress. How could you attempt to perform field sobriety exercises when a part of your body was paralyzed and could not move? And the officer all of a sudden realized, oh my God. I just testified this guy couldn't, you know, didn't touch exactly on his nose with his finger with an arm that he can't move. Now you would think the officer would've admitted his mistake, I'm sorry, your honor. I confused, for a moment, my testimony with another case. Well, turns out he didn't do that. He just dug himself a deeper hole rather than admit his mistake. He created a story about how he had been medicated when he was testifying, because his girlfriend had just passed away. Now it probably didn't help his story that, you know, concerning that he was too medicated to testify, and that's why he'd given the mistake, given the fact that he was there in the courtroom, in the jury box, excuse me, in the witness box testifying in full uniform with a gun on his hip and that he had just completed a 10-hour shift and he had driven his police vehicle to the court that day. Also probably didn't help Mr. Bedoya girlfriend, that Mr. Bedoya girlfriend, a chief advisor to Florida's then governor saw him high five another officer waiting to testify and skip down the hallway, when the judge over my objection, excused him for the day for his supposed medical interest. Well, of course, as you can imagine, I pulled the officer's record and I listened to the officer and what he was saying to see if it made sense. And so when I obtained his work records, it showed that he did not take any time off for this so-called death. That he worked the night before his testimony and the night of his testimony. And I wasn't afraid, with all this information, when the hearing resumed several weeks later, to ask a question I didn't know the answer to, because I knew that no matter the answer he gave me, I was going to win. And so when we resumed, I said, "So what was your girlfriend's name, the one that passed away that caused you to be medicated?" And he couldn't tell us. He said, "I just knew her first name." "Okay then. When was there a funeral and where was it? Did you attend the funeral? What kind of funeral was it?" When he admitted, "I didn't intend to any funeral. I know where it was." "Well, we can always look up the death announcement, officer. Was there a death announcement?" And he said, "I don't know." you have to be persistent. You have to do your homework And gathering the information is what makes for a successful defense. And that makes you look good. Now the next story I call it, I guess my remembery ain't that good. Don't be afraid to be persistent in your cross examination of a witness and be prepared to persist. Be prepared with the facts, be prepared with knowledge of your witness. Now sometimes I go in and I think to myself, "You know, Bobby, you're too nice a guy. You really have to be a dick with this officer." But you don't always have to be a dick when cross examining a witness. This was a nice, although not very bright young man. Didn't have much of an educational background. And I wanted to show that his ability to testify as to the facts he was testifying to was not very good. And so after the prosecution asked him questions which laid out their case, I persisted with the facts, and I kept showing how the facts weren't what he had testified to. Nicely, of course, but persistent. And finally, the witness said, "You know, I guess my remembery ain't that good." And there you go. His testimony was gone. So what do we learn from this story? Persistence and preparation can pay off. Adjust your technique and your tenor to the particular witness that you were cross examining, 'cause different people required different approaches. So think about that. The scene of the crime. In one particular case, I had a DUI manslaughter case. I had a physician. He was returning from dinner. And as he's driving at night, he struck a pedestrian who was crossing the street. When his blood alcohol content came back at 0.083, he was charged with DUI manslaughter. He was now facing a minimum mandatory sentence of four years in prison, bottom of the guideline sentence, starting at 10 1/2 years. And so I said, let's go back to the scene of the crime, so to speak. Let's get the same car because his car had been impounded by the police, so we rented the same exact car. We went back at the same time of evening during the same moon phase. And with the assistance of the Florida Highway Patrol, we were able to rent two troopers to close the road for us in five minute intervals. We reconstructed the accident and I had an individual there who was wearing the same clothing that the deceased had been wearing. And I knew that because I had reviewed and photographed the clothing that the decedent had been wearing at the time that was still being held in evidence at the medical examiner's office. And I was able to show that the doctor would not have seen the jaywalking pedestrian until he was literally on top of him. So we had the rented card, an Audi. We had the rented person, the simulated pedestrian wearing the same blue jeans, black t-shirt, tan sport coat. We had the roadway where the accident occurred. And we did various intervals. We both video taped it and photographed it. We had hired a professional photographer, sat in the passenger seat, and took pictures. Now mind you, the second time around I, first time around, I was across the street watching what was going on. Second time I sat in the back seat of the car. And when we reconstructed it, let me tell you, folks, I knew we were about to hit, so to speak, a pedestrian. And yet knowing that there would be somebody who would be crossing the roadway in front of us, I didn't see him. I knew he was there and I still couldn't see him under these circumstances. And you'll see by the materials I provided that three seconds before you can't see him, one second before, 1.6 seconds before you could not see. I went to Google Earth and I pulled pictures of the intersection to show where the person was crossing the road and where the crosswalk was, so I could show that he wasn't even in the crosswalk at the time, which made it further more difficult for somebody who'll ever expect the person to be. And I had my expert take police measurements and show exactly where everything was. He created a drawing from the police measurements to show exactly what everything was. And then I took everything that we had created and I put them literally into the motion that I created, dropped the pictures, an aerial photograph of the area of the traffic crash, crime scene photographs of the area and the lighting at the time. The clearly designated areas across that the pedestrian ignored, and I went back out there during the day, so I could also show how they were clearly marked. And other things, including a crime scene photograph of the decedent's cell phone, which was found open on the ground. This was one of these old flip phones. You know, this was an older case and people carried flip phones back then. And I even did a test. I purchased several of these flip phones. And I had an individual drop that very cell phone from about the height in which the individual who was crossing the roadway illegally would've dropped it. And we did 10 times with the phone open and 10 times with the phone closed. And would you be surprised if I told you that if the person had the cell phone open and dropped it on the ground all 10 times, the phone dropped to the ground and remained open? And the 10 times where we dropped it where it was closed and hit the ground, all 10 times the phone remained closed. So what did that tell us? It told us that this individual was probably talking on the phone and not paying attention when he was crossing illegally against the light in the roadway. And now I was able to use all those facts and drop that picture from my motion into our exhibit. And I even was able to take a crime scene photograph to show where the phone was found in relationship to the car that was struck. And so what did we learn from this story? Well, we learn that you need to go out to the location of the accident and you need to be prepared to reconstruct the accident. Now I'll tell you, folks, when I get a DUI manslaughter case or even simple DUI cases, I will go out to the scene of where it occurred. I will walk around, I'll walk off to the side, I'll walk around, I'll take some pictures. I will get a feel for the area. And I might do this several times, especially in serious cases. I'll go out there right away when I first get involved in a case so I can get a better understanding of what occurred. And then I might go out several times more as I'm preparing my defense and look at it. And I'll tell you, I've done this many, many times now, probably in excess of a hundred times, I've gone out to the scene on a case. And I haven't had a case yet where I didn't learn something by doing that. And I, each time, took pictures which I downloaded to my computer many of the time. I will take those pictures and be able to use 'em in my case, drop those pictures as exhibits into my motions. To go out there, take a look at the scene. In these serious cases, the police will seize the vehicle and hold it in a storage facility. Make arrangements with the police to go out there with your experts and look at the vehicles that were involved. Look at the damage. Take pictures. I'll tell you, folks. I've been surprised, when I've gone out there, some of the things I've seen and some of the things that I've seen that the police missed. I had one DUI manslaughter case where it was clear the police missed an open, what we call growler of beer. This was one of these containers that people can fill up with alcohol, beer, from the brewers that make the beer in-house. And I thought it was very interesting, because the growler had the name of the establishment that my client had been drinking in that evening. You would think they would look at the growler, see the name of the establishment where the beer would've been purchased at and gone there and said, hey, was this person here before the accident? Do you have video recordings? Do you have receipts? They would've been able to show all of these things, but they didn't. And so they weren't. The next example I give is what I call, how should the defendant spend his next four years? An interesting solution. In this case, I was representing a gentleman by the name of Toland. He was involved in a fatal accident where a friend of his and him, they had gone out on a fishing trip. The friend had brought a cooler filled with beer. And after consuming several beers that day as they were fishing, the young man drove home in the dark evening. When my client missed a stop sign in a darkened and wooded intersection, he ran into a house, killing his friend. And while they had only been friends for roughly a year, Mr. Toland was known to the deceased passenger's parents. They knew who he was. They liked him. They thought he was a good person. And he had a high blood alcohol level, as did the deceased. And this was right around the time when Florida had amended their DUI statute to require that any individual convicted of DUI manslaughter be sentenced to four years in state prison if he was convicted. And so I took a moment and I thought back, and I said, how do I deal with this? And in doing that, I had asked Mr. Toland what he had been planning to do with his life. If this accident had never occurred, what were you thinking of doing? And he said, "Well, I was going to enlist in the army. I was very moved by 9/11 and I wanted to go to Afghanistan and I wanted to fight for our country. And so I proposed that to the prosecutor and to the deceased's family. I said, "If we resolve this case to a different offense where there's no minimum mandatory, and we have an agreement that instead of four years in prison, Mr. Toland goes to Afghanistan and serves in the armed forces, would that be acceptable to everybody?" And the family, surprisingly, I guess, maybe not surprisingly, they were on board and they convinced the prosecutor. And in fact, in doing this, and, trust me, folks, it wasn't easy getting this done. The army said, "Yeah, we'll accept him, but we won't accept him if he's sentenced. This has to be an agreement where he is not prosecuted. So I crafted a non-prosecution agreement, which said in it that he would not be prosecuted if he agreed to serve in the armed forces for four years. And as a condition to this agreement, we agreed that for all his paychecks for those four years would be donated to a charitable foundation set up in the name of the young man who would die in this tragic accident. And the charitable foundation would be created and run by his family to support the things and the people that the deceased was supportive of and which would create a legacy to him. And let me tell you, folks, even though Mr Toland suffered some injuries in Afghanistan, he was a tank driver and his tank was bombed by an IED, he came back as a hero, not as an inmate. Not as a felon. And he used the benefits to the GI Bill to go to college. He's now married, has his own family. So what did we learn from this story? Well, first of all, take the time to speak with, and learn about your client. What are their interests and their dreams? What did they wanna do with the rest of their lives before the accident occurred? And take time to learn about who your decedent is, what was their life story? What is important to their family? Is there something there that would be a point that would allow you to craft a creative resolution to your case? Now the next story I call a foot in the door. This is not directly a story about a DUI case, even though it came out from a DUI situation. I had a client who had been out drinking. He gets into a minor accident. Instead of stopping and giving the information, of course he didn't wanna get arrested, he drives away. And he drives to a nearby apartment complex. And interestingly enough, the person he got into the accident with didn't follow him. In fact, he fled as well. No idea why he fled, but a third party, a citizen, saw where my client went, reported it to the police, and reported to the police where the car was. And if this was a sitcom, hilarity would ensue, but unfortunately this was not a sitcom. And why do I say why, why would, you know, sitcom hilarity be involved? Well, the officer goes to the apartment building. He goes through the gate. He says, "Where is this guy? What apartment is he in?" The hapless security guard says, "Oh, he's in apartment 602." Officer goes in the building, goes to 602, starts knocking at the door, and he sees a young woman, about 18 years old. She comes to the door. It's obviously not the person he's looking for. And he says, "Hey, that guy who was driving that car downstairs, the one with the dent in it, tell him to come to the door." She does, tries to close the door. Of course he blocks it with his foot. So the door is now hanging open. My client comes to the door and he, at least he knew what was going on. And he said, "Thank you, but no." And he starts to close the door and the officer sticks his foot in the door. Well, there was no hilarity there as there's pushing and shoving my client trying to push the door shut. The cop saying, "Hey, my foot's in the door. My foot's stuck in the door. And he ends up obtaining a felony arrest warrant for battery on a police officer. And so I went back out and I took pictures of the door in the door jam. And when I took the deposition of the officer I had on the subpoena, "Please wear the boot that you were wearing on the night of the incident." And I took pictures of the officer's boot. And it was clear that the only way a battery could've occurred in this case is if the officer illegally tried to jam his foot in the door to illegally keep it open. So I was able to file us one motion to dismiss, which was ultimately granted, and the charges were dropped. And I was able to drop into the motion, as I show you, photographs of the apartment door, the entry way and how it was constructed and showed that where the door closed could only have been prevented from closing if the officer had in fact stuck his boot into the doorframe, an area that he was not allowed to do. And of course I added all of the language that said that an officer is not allowed to place their foot or their body inside a home if the individual there wishes to disengage himself from the officer's inquiry. Now as we discuss stories, I mean, this is a general story. It's not necessarily a specific case, but it just deals with 40 years of my being involved in these cases and thinking about the absurdity of field sobriety exercises. And so I thought to myself, well, when the police give you idiotic procedures, be creative in showing that idiocy. I mean, field sobriety exercises are ultimately an invitation to take dance lessons on the side of a roadway. And it is certainly curious, and I'm sure it's curious, not just to me, but to jurors, that in making their arrest determination, police officers seem to believe that a suspect should be able to perform, and that's the word, folks, perform, physical sobriety exercises under the extremely stressful and certainly non-clinical settings in which they are often performed to audition for their freedom. That's right. They're performing and they're auditioning. And that often people are asked to perform these exercises for the very first time. Now many years ago, my now wife convinced me that we should take a few dance lessons at the local Arthur Murray Studio in preparation of our wedding dance. And yes, dear, I responded in a line repeated many times over 38 years of marriage. The thing is I never seem to be able to get those dance steps right, whether it be my first time or my 38th time, just couldn't get it done. And whether it's, you know, that I look like a giraffe trying to dance on the Serengeti, and you'd probably wanna visualize that for a moment, it made me think aren't these field sobriety exercises on the side of that uneven roadway nothing more than the dance lessons I was given, but now moved to the side of the roadway? And so I used that all the time. And as we see on, you know, if you've ever been subjected to episodes of "Dancing with the Stars," you can see even with practice, some people never seem to get the dance right. You have to also understand, folks, that these sobriety exercises were created based upon studies conducted by a graduate student in psychology who went to law enforcement agencies throughout the United States to check what was being used. They didn't speak to neurologists or doctors of any kind. They spoke to cops. And they took three of the exercises that the police have been using first, about 100 and then 25. And they said, well, when administered in a standardized manner, they were an adequate means to determine sobriety, adequate. And I'll tell you, folks, early in my career, I would encounter officers who had previously administered to people some of those now discredited exercises, like throwing coins on the ground. And I'd say, "Hey now, Officer Smith, you've been around a while. You used to conduct these exercises, you used to do things like throw coins on the ground." Yes, that's right. And it was later to determine that that's not a very accurate way of determining if someone's impaired. And they did away, they said, "Don't do that anymore." It's just not accurate. And he said, "Yep, yep, that's right." And so I'd say, "So how many letters of apology did you end up writing?" And he look at me and go, "What?" And I'd say, "How many letters of apology did you end up writing to those individuals that you ended up arresting based upon these exercises that were later discredited as being a poor gauge of impairment?" And they would say, "Well, that never happened." And I'd say, "Officer, you cannot guarantee us that in five years time, the exercises that you administered to Mr. Smith will not be similarly discredited." And of course they can't. So think about your cross examination. Use words that allow you to paint the picture, whether it be putting together an IKEA cabinet or talking about the abnormal test to test for normal faculties or why the officers asked the individual if they had any injuries that would prevent their ability to perform them when in fact it's not being unable to perform 'em, it's whether or not their performance would be affected. Those are the things that you need to think about, folks. Thank you so very much for spending your time this past hour with me. If you have any questions about anything I've discussed with you, please feel free to reach out to me. I have offices in both Miami and in Fort Lauderdale, Florida. My telephone number is area code 305-854-5511, 305-854-5511. My website is duilawoffice.com, duilawoffice.com. And I can be emailed at [email protected]
Thank you. And good luck.