Negotiating With Law Enforcement

Negotiating with Law Enforcement; Chain of Custody Rules

In many cases, DWI practitioners should take advantage of what I call the “godfather clause.” In other words, we ask law enforcement to “make us an offer that we cannot refuse.” For example, if a DWI client is charged with a felony, we need it reduced to a misdemeanor. In an extreme misdemeanor case for a specific client that cannot face another day in jail we may ask the prosecution to remove the mandatory jail sentence from the equation. It is always best to get the DWI changed to a non-DWI charge due to the collateral consequences from a DWI conviction.

Our goal is to get the prosecution to “sweeten the pot” to such an extent that the client does not have a desire to take the case to trial. In many cases, the prosecution also does not want to take a DWI case to trial because things can go wrong; for example, we may be able to prove that our client’s blood sample was not properly taken or does not show evidence of intoxication. Just as likely, is the reality of poorly prepared witnesses or other “fumbles” we must sometimes force in court. The final denominator is: “will the client stay the course and let you try the case?” I find it always preferable to obtain a great resolution without a trial if possible but to always be prepared to take it to trial for the win!

Another weapon previously mentioned in our arsenal is the so-called confrontation clause. Basically, the Sixth Amendment gives you the right to confront witnesses who are bringing forth evidence against you and if you cannot do so the prosecution does not have the right to restrict your cross-examination. In other words, as a defense lawyer you have the right to expose reliability and credibility issues in the prosecution’s case. For example, you should not simply accept blood draw evidence without being able to cross-examine the nurse who drew the blood sample and ensuring that she followed all of the standard protocols. Otherwise, there is no way of knowing if the blood sample was contaminated. Never accept any form of evidence that allows a witness to sidestep your cross-examination. DWI guru Troy McKinney once told me to never stipulate to evidence that must be presented to convict your client. If you stipulate to that evidence, it is coming in, but if you fight it, the court may keep it out if there are evidentiary problems with proving it up.

It is important to keep in mind that chain of custody rules have changed in this area. Back in the 1980s, if we could prove that the prosecution did not follow good chain of custody protocol with respect to the protection of blood test samples in DWI cases, then that evidence was not allowed in court. Now, however, because of recent rulings by various appellate courts, the judge and jury are allowed to apply whatever weight they believe is appropriate to that evidence. For instance, if the prosecution cannot account for where a blood sample was stored over a period of two or three days, the jury can decide what that means.. The gap in the record can be attacked and suggest reasonable doubt regarding the reliability of the blood sample. Because certain protocols were not followed, then the judge or jury can make a judgment call regarding whether the blood testing evidence is reliable enough to convict. The judge or jury can decide if the evidence should be discounted below the reasonable doubt level and rejected.

Typically, I might question whether the blood sample was properly stored in a refrigerated unit, were the proper chemicals used in the blood draw vials and whether the blood tested by the laboratory belonged to your client. The prosecution will need to bring in witnesses to testify about the various steps of the blood draw—i.e., the transportation of the sample and the testing process. In the case of a blood test sample, witnesses should testify regarding the calibration of the gas chromatograph testing equipment. You should always have an expert examine the supporting data concerning that exact testing. The prosecution cannot simply say, “The driver’s blood test sample was .11; therefore, he is guilty.”

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