Most mornings aren’t quite this fun. I had a DWI client set for a PreTrial hearing today, and he had what I thought was a pretty good case. The officer had previously testified at the ALR license hearing that he had pulled my client over after “running his license” and it had come back with expired registration. My client committed no other violations. When the officer told him why he had activated his overheads, the client points out that his registration was current.

Of course, the officer was behind my client the whole time, and was ‘relying’ on the information he got from dispatch.

There is what’s known as a “good faith exception” to the requirement that an officer has reasonable suspicion to detain someone (a reason to come up and start harassing them in the first place). The seminal US Supreme Court case is an example where the officers relied on a warrant, but someone had accidentally typed the wrong address. Upon bursting in to the wrong house, they went on to find contraband (if I remember correctly). SCOTUS said that since they were acting in “good faith” (hadn’t made the error deliberately or even themselves), that the government was entitled to prosecute the defendants.

That’s all well and good, but back to my client, let’s face it: this is still something a jury is going to think is a bogus stop. That has to affect their ultimate determination about the value of the State’s case.

Also, the officer had testified at the driver’s license suspension hearing that he runs these checks all the time, and that it wasn’t unusual for the information he received about registration by way of dispatch to be incorrect.  I wasn’t expecting that answer, but I liked it. One of the beauties of  cross examination is that ‘probing’ can lead to unexpected results.

I felt like it was potentially a good issue to put in front of the judge, and I sure wouldn’t plead someone to these facts without at least having a hearing, even if the case went ‘downhill’ after the stop from the defense perspective.

And in the specific case, in what turned out to eventually be irrelevant, my client had politely declined to do the officer’s proffered Field Sobriety Tests. Perhaps most harmful to the state’s case: the officers had neglected to turn off their mikes when they said, post arrest, “Guilty or Not Guilty, at least he’ll have to pay a lawyer $5000”. (I wish I’d known I should have charged that much for a pretrial fee.)

So my intent was to litigate the Motion to Suppress, based on the obvious problems with the case. And since I had the transcript of the ALR hearing, I felt I had an additional argument to make: since the officer previously testified that he frequently got ‘bad information’ from dispatch about whether folks are properly registered, this didn’t meet the so-called ‘Good Faith Exception’.

When I arrived in court, the Prosecutor had a manila envelope with something inside it attached to her Police Report. I asked her to look at it and tell me what it was (I assumed it was some sort of Attorney Work Product I wouldn’t be privy to.) Lo and behold, it was the CAD audio tape that I had requested months earlier – the actual police to dispatcher transmission of the License Check that the officer had run.

The court reporter allowed me to listen to it on her audio tape machine back in her office, and, tada, we hear the dispatcher report to the officer that my client was “Clear and Current”, meaning no warrants, and no out of date tags. The officer’s original excuse that he unintentionally pulled over a citizen for no valid reason (because of bad info from dispatch) was now completely shot.

After hearing the tape for herself, the Prosecutor agreed that this was an illegal detention and arrest, and agreed to dismiss my client’s case outright. It’s unfortunate that I have to complement them on that action, but it’s true that some prosecutors would have tried to still find a way to justify this blatantly illegal arrest.

Of course, sometimes it’s ‘easier’ for the State to dismiss a case, even a DWI, than to risk ‘embarrassing’ the officer.  Best possible result for my client, but not necessarily for the public.

One more sad fact I suppose: I’m sure this sort of thing happens at least 10 times as often as I am able to actually prove that it does. Oh well, it’s fun getting to play detective every once in a while.

[N.B. I wrote this entry over a year ago on a ‘test blog’ I put up when I was first getting interested in blogging.  So, it wasn’t actually this morning, but you get the point.]

  • Amartinez

    How can a county in Texas get away with not bringing a DWI case to trial that was started over 3 years ago?
    Is there some level of accountiabilty that catches this in the court system or are defendants soley at the mercy of the judge and slow moving dockets in the coutny court systems?

  • tana

    I GOT PULLED OVER FOR ONE HEADLAMP NOT WORKING AND THEN ARRESTED FOR DWI. confessed had had 3 beers, did not take the breath test. I heard Officer call it in and heard my 10 year prior, what happens next??

  • Brad

    So basically in order to prove an illegal arrest under the good-faith doctrine the prosecution has to show recorded phone conversations between their wittnesses that prove themselves wrong. I have a feeling this doesn’t happen too much and people that are abused under this open ended, but “good faith”, rule get prosecuted and sent to jail. Sobriety tests are often challenged in court (when they blow a little over the legal amount) by defense and many DWI charges are plainly unjustified so why should we make it easier for them to collect this controversial evidence to begin with?