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DUI Acquittal May, 2012

I'm often asked how a person can be acquitted of a DUI if the facts are against them. In a recent trial, the officer testified to bad driving, striking the fog line numerous times and striking the center line two times. He then testified that the driver was slow to pull over and stumbled upon exit from the vehicle. When given the field sobriety tests (FST), she failed miserably the ABC test, number count, one leg stand and walk and turn. Her PBT, portable breath test, showed the presence of alcohol and she admitted to drinking at the bar. She was unable to complete many of the field tests. She did refuse the breathalyzer. As an aside, the driver lost her license for 120 days as a result of the refusal. I will state that many attorneys would advise the client to plead guilty based on the above facts. One reason that convictions are very high in DUI cases is that most result in guilty pleas. The primary reason that the top DUI defense attorneys are successful is because they are not afraid to take a case to trial. Most experienced criminal defense attorneys agree that they have won cases they feel like they should have lost and they have lost cases that they feel that they should have won. Back to the case at bar, the officer testified to all of the above. Upon cross examination, it became clear that he did not actually recall the incident with the Defendant, however was only testifying from his notes that evening. He could not recall other drivers on the road; could not recall what was said outside of his notes and citation. The citation was never put into evidence and is generally not admissible as evidence on its own. The final question presented on cross examination was along the lines of: it's fair to say that you do not have any independent recollection of this stop... you are simply reading your notes but you do not recall the events as we sit here today, correct? The officer honestly responded, "Yes." That was the close of the case for the Prosecution. I've stopped because many attorneys will immediately see that the case should now be won. The Judge asked if the Defense was ready to proceed and I requested a Directed Verdict and moved to strike the entirety of the testimony of the officer. Notes may be used to refresh the recollection of the witness, but cannot be used alone to provide the evidence. Since the officer was testifying from the notes, then he was not using them to refresh his recollection. The Judge correctly applied the law and issued a Directed Verdict in favor of the Defendant, thereby acquitting of all charges. Of course not every story has such a wonderful ending. The odds of winning are different in each case and every case is unique. Clients are warned to not have an expected outcome based on other cases, regardless of the seeming similarities. Refer to the issues presented in the second paragraph. That said, your chances of acquittal greatly improve with the retention of an attorney on your side. Listen to the advice of the attorney and do not be afraid to take the case to trial if it is warranted. If you have been arrested for a DUI and are seeking advice and counsel, contact me, Michael Bouldin at 859-581-6453 or email at mwbouldin@fuse.net for a consultation.

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