The Cessna Law Office DUI Case of the Week Blog

DUI Case of the Week for May 12, 2008

CASE DISMISSED BY DISTRICT ATTORNEY JUST PRIOR TO MOTIONS HEARING:

Our client, a major college athlete, decided to drive one night because his friends were "drunker" than he was.  While driving back to campus, our client ran through a stop-sign without even stopping.  What our client didn't know was that a police officer was right behind him the entire time. 

Upon contacting our client, the officer smelled alcohol and observed other indicia of impairment, including an admission from our client that he had been drinking.  Due to the numerous indicators of impairment, the officer requested that our client submit to standardized field sobriety tests (SFSTs), including Horizontal Gaze Nystagmus (HGN), the Nine-Step Walk and Turn (WAT), and the One-Leg Stand (OLS).  The officer used the client's performance on these three tests to justify an arrest for suspicion of DUI.  After placing our client under arrest, the officer gave him a choice between a breath or blood test.  Our client elected a breath test on the intoxilyzer 5000, which produced a Blood Alcohol Content (BAC) of .172.

The police then charged our client with the two most serious drinking and driving offenses in Colorado, with each charge carrying up to one year in jail. 

THEN HE HIRED ATTORNEY, CHRISTOPHER H. CESSNA TO DEFEND HIM:

Upon being retained, our firm subpoenaed hundreds of pages of documents, including the officer's training records, background documents and reams of data detailing the internal workings of the intoxilyzer 5000 for 90 days before and 90 days after our client's breath test.  After pouring over the scientific data on the internal performance of the intoxilyzer, Mr. Cessna saw some very troubling trends indicating that the breath machine was malfunctioning on a regular basis.  Mr. Cessna also concluded that the officer's administration and interpretation of the SFST were flawed and therefore rendered them invalid and unreliable as evidence. 

Because an attorney can't testify for his client, it is more effective to hire an expert witness who is much more qualified to analyze the scientific data (in this case on the intoxilyzer) and write an opinion letter about his findings.  These opinion letters also summarize what the expert would testify to if the case went to trial, and the expert were to take the stand. 

Our client allowed us to hire an expert and the reams of documents were forwarded for his analysis.  In a detailed 10 page report, our expert used graphs and the government's own hard data to clearly illustrate how the intoxilyzer 5000 was malfunctioning on the night of our client's breath test, thereby rendering the .172 breath test invalid. 

RESULT:

Even though this powerful expert opinion letter was given to the DA prosecuting this case early on in the process, the DA would not initially dismiss the case. In fact, the DA refused to even offer a plea bargain to a lesser drinking and driving offense.   Because the DA refused to dismiss the case, our client was forced to set this case for motions hearings and a jury trial.  On the day of the motions hearing, the DA finally conceded the case and dismissed all charges against our client.         

DUI Case of the Week for May 5, 2008

JURY TRIAL WIN:

A well-intentioned citizen driving down a major highway called police on his cell phone after seeing our client swerving in and out of his lane of travel and driving dangerously.  The citizen followed our client, all the while describing for police how dangerously our client was driving and his direction of travel.  The citizen continued to assist police even as our client stopped in front of a house in a residential neighborhood, stumbled out of his vehicle and went inside.

The citizen parked away from our client and kept speaking to the police until officers arrived.  Upon arriving, officers entered the house to find the owner in his back yard.  The owner told police where they could find his friend.  The officers then found our client behind a bar in the basement pouring himself a drink.

Police described our client as swaying, slurring his speech, and having bloodshot, watery eyes.  According to police, our client failed all of the standard field sobriety tests and also admitted to several drinks earlier in the evening.  After being arrested, our client elected to provide a breath test and a result of .184 was obtained from the intoxilyzer 5000. 

Our client was then jailed and charged with two of the most serious drinking and driving offenses in Colorado.  Because he had a prior conviction for DUI, our client was looking at up to one year in jail including other penalties and fines.

THEN HE HIRED ATTORNEY CHRISTOPHER CESSNA TO DEFEND HIM: 

Because of the aggravating factors of his case the district attorney would make no offers and we set the case for trial. 

Before jury trial, Mr. Cessna filed several motions on his client's behalf, but the most strategic of which was, a "MOTION TO HAVE DEFENDANT SIT AWAY FROM THE DEFENSE TABLE DURING THE IDENTIFICATION PHASE OF TRIAL (and next to his identical looking friend who had been in the house when police arrived)."  The Court granted the motion and the trial commenced shortly thereafter.

At beginning of the state's case-in-chief, the state prosecutors called their first witness - the citizen driver, to the stand.  When it came time for the state's witness to point out and identify the driver for the record (a critical element to a successful prosecution), he only saw Mr. Cessna at the Defense table and then saw our client and the client's friend sitting next to each other in the back of the courtroom.  The witness then truthfully conceded that he could not positively identify the driver. 

The state's prosecutors sought a mis-trial and Mr. Cessna objected.  However, on a renewed motion for a mistrial by the prosecutors, the court inexplicably granted the mis-trial without first making the necessary findings of "Manifest Necessity," thus exposing our client to double jeopardy.  Over our objection, a new jury trial date was scheduled and Mr. Cessna immediately filed written motions seeking dismissal of all charges since jeopardy had attached with the swearing in of the jury and therefore exposing our client to double jeopardy violations, additional stress, and embarrassment. 

RESULT:

Upon receiving our motion for dismissal, and after researching the relevant law of mis-trials, the Court must have realized it erred in not first making the required findings of manifest necessity and corrected its error by forever dismissing the charges and the case against our client.