Robertson Law Blog

A case study: Trial of a difficult DUI charge

Posted by Andrea Robertson on Aug 11, 2013 | 0 Comments

A new client will often ask in that first meeting : “What are my chances? What odds do I have?” This is an almost impossible question to answer.  Even a case that appears to be very basic can have a multitude of issues under the surface.  Sometimes those issues only become apparent as the case goes into battle.  Here is an excellent real-world illustration of why our best results often come from months of effort and litigation.

My client was a very hardworking teacher, who had never been in trouble before with the law.  He found himself in my office facing a DUI charge, embarrassed and overwhelmed.  On the surface of the case, things appeared quite difficult.  He had been driving home on a Saturday night. His tire blew out, and he pulled to the side of the roadway.  While trying to determine the best way to jack up his car, a trooper approached.  Apparently a 911 caller had reported the car parked off the roadway, with the driver moving dangerously close to the flow of traffic.

Our client was polite and cooperative with the trooper, answering questions and following directions.  He was arrested for suspicion of DUI, and submitted a breath test with results of .16 and .16.  On the face of the case, there was very little hope for a quick resolution, so our client settled in for a longer fight.  And it became worth the time and effort.

First, his administrative Department of Licensing hearing resulted in a favorable finding due to an error by the trooper that was an easy fix – if he had taken care of the problem.  The freedom from an administrative suspension was a welcome surprise.

Then, his criminal case was filed.  The State chose to file the charge of “DUI” rather than “Physical Control.”  An easy fix to this mistake could have happened at any time.  But the State pressed on, not realizing how this could hurt them.   While a Physical Control charge carries the same consequences and general penalties of a DUI, it hinges on the premise that our client was in “physical control” of the vehicle – i.e. that he had the ability to drive the vehicle even if he was not in motion.  Since our client was not observed driving, and was instead found sitting in the driver's seat of a vehicle registered in his name with the keys clearly in his possession, a Physical Control charge was the appropriate allegation.  As it was clear that he had driven off to the shoulder due to the flat tire (not because he had chosen to pull off due to feeling intoxicated), it was unlikely that we could have defended his charge with the premise that he had moved his car “Safely Off the Roadway,” a defense permitted in Washington State.

We expected the State to realize and fix this error at any time, but we pressed on.  We brought the case to motions, where we successfully suppressed his statements to the trooper at the station post-arrest.  Our argument was that he had indirectly asserted his right to remain silent and that assertion had not been recognized or honored by the officer.  The judge agreed and suppressed those statements, some of which were rather unhelpful to the case.  This damage to the State's case was not enough for them to agree to a reduced charge, however.

Next, we hired an expert witness to challenge the breath test, to tackle the shortcomings of the BAC Datamaster, the instrument which utilizes infrared spectroscopy to test the breath alcohol content of arrestees in Washington State.  We were ready for trial.

We entered the trial stage because the State continued to refuse to offer a reduction or resolution that made sense to accept.  While the prosecutor was willing to strike the enhanced penalties for a breath test which equaled or exceeded the .15 level, a DUI conviction was still far too devastating for our client to accept.  He had no prior criminal history and we chose to press on.  This is a decision that we always leave to our clients.  We can only outline the positive and negative aspects of our clients' options.  We can give a general opinion about our chances of success.  But the ultimate decision about taking an offer or pressing on to trial is always a decision for the client to make.

At trial, the State continued to press the charge of DUI.  The prosecutor could have moved to amend the charges at many different points of the trial, up until virtually the very end.  But he either failed to recognize the magnitude of this error, or he believed it to be easily fixed later. This mistake became important after nearly a full day of trial.  Preliminary motions had concluded, jury selection had concluded, and the jury was sworn in.  Opening statements were given, and the State put on its first witness, the trooper.  The trooper took the stand and began to testify under direct examination.  The prosecutor established the trooper's initial investigation.  Then the State began to elicit testimony designed to establish when our client had last been driving.  We objected.  The direct examination was halted, and the jury was temporarily excused.  This was the turning point.

The judge heard argument from us, and from our opponent.  Our theory was that our client's statement alone could not be the sole basis for establishing a fact which establishes an element of a charge against him.  This premise was due to the requirement that the State establish the “corpus delicti” of a crime.

Now, a little legal background to this argument. The underpinning of the corpus delicti rule is the general idea that a person should not be found guilty of a charge solely due to their confession alone.  Corpus delicti is defined as “the objective proof or substantial fact that a crime has been committed.”  It is a strict rule in Washington that statements of a defendant cannot be considered by the finder of fact (in this case, the jury) unless the State first establishes the corpus delicti of the crime by independent evidence. Washington is among a minority of courts that has refused to allow the more “relaxed” rule used by federal courts, where the prosecution only needs to introduce independent evidence showing that the defendant's incriminating statement is “trustworthy.” Under Washington's version of the corpus delicti rule, the evidence must independently corroborate, or confirm, a defendant's incriminating statement.  A Washington Supreme Court case from 1996 called State v. Aten modified the corpus delicti rule, which further increased the State's burden. The Court held that if the independent evidence supports both a hypothesis of guilt and a hypothesis of innocence, it can't be used to corroborate the defendant's statement and allow the statement to come in to evidence. In other words, if the State's evidence supports the reasonable inference of both a criminal explanation and one that does not involve criminal agency, that independent evidence is not enough to corroborate the defendant's statement.

Here, we were challenging the admissibility of our client's statement about when he was last driving his car.   This statement would have established two things for the State – one, that he was actually driving the vehicle earlier.  Two, that he was driving a vehicle within two hours of the breath test conducted at the police station.  Because the State had chosen to charge him with DUI, it could do so through two “prongs.” The State could show that the DUI was committed because our client's breath test exceeded the “legal” limit of .08 within two hours of driving.  Or, it could show that the defendant had been “affected” by his alcohol consumption so that it impaired his ability to drive.  The .08 prong is typically called the “per se” prong.  “Per se” loosely translates to "by itself," meaning inherently.  The “per se” prong allows the State to establish the level only, without having to show that the .08 had personally affected the defendant in a particular way.

In this case, the State needed to prove that our client's breath alcohol levels exceeded .08 within two hours of driving, or they could prove that his driving had been impaired by the consumption of alcohol.  In order to prevail under the “per se” prong of the DUI statute, the State had to prove exactly when our client was driving.  The breath test was conducted nearly two hours after the trooper's approach to the scene.  To show when our client was driving, they were forced to use our client's own statement that he was driving at a certain time.  They had no other evidence to establish this fact.  Our objection was sustained by the judge, who then found that the State could no longer proceed on the “per se” prong of a DUI prosecution.

Now, the State had a number of options at that point.  It could have moved to amend the charge to Physical Control.  It could have continued the prosecution under the less defined second DUI prong, by showing that our client's actual consumption of alcohol “impaired” his ability to drive.  But because the prosecution had been shaken and partially derailed by this stage, the State chose to cut its losses, and offered us a deep reduction to a lesser charge which would guarantee protection against some of the more harmful aspects of a DUI conviction.  This reduction was a better resolution than we had ever hoped for, and we happily accepted the lesser charge.

So after nearly a year of court hearings, motions, and a full day of trial, the case was over.  The jury was released, our client entered a plea of guilty to the lesser charge, and he avoided the mandatory jail, license suspension, lengthy probation, ignition interlock, and other consequences which had haunted him for eleven months since his arrest.

This case is a very clear example of why we can never predict for you what we can achieve in your case. We can only predict that we will fight for the best possible outcome for you.   It also shows why, even when the odds are stacked against us, it often makes sense to keep up the fight.  Because you never know what can happen in the crucible of motions and trial.

About the Author

Andrea Robertson

Andy is a passionate, creative and effective criminal defense lawyer who is willing to fight on your behalf. She has honed her skills since 1998, and has developed a proven track record of creative, vigorous, and effective advocacy for clients throughout the State of Washington. Her practice includes all criminal charges. This includes felonies, misdemeanors, and driving-related charges such as DUI or vehicular assault/homicide.


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The attorneys of Robertson Law have a proven track record of creative and effective advocacy for clients throughout the state of Washington.

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Andy Robertson has a proven track record of creative and effective advocacy for clients facing criminal charges throughout the state of Washington. Ryan Robertson's practice focuses exclusively on high-quality creative appellate representation in criminal and administrative matters, as well as expungements, vacation of records, and petitions to seal.