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Instead of a dry, boring article, the following is an excerpt from a recent interview with Attorney Leckerman on the subject.
Kevin: I’ve handled a number of cases I could talk about, but even before I talk about these specific cases, I’d like to mention the following. What I generally found in my cases and the cause or the root of my success is that I do what all attorneys are taught to do, but very few attorneys actually practice. That is, not trusting any information that the prosecution provides. You must dig as deep as possible into the information given, in order to determine it’s accuracy.

By that, I mean, if police reports given to you contain certain assertions made by the police, I never trust a word that’s been placed in the report. That’s not to say that some of the reports do not have accurate information. I’ve had many cases where the information in the reports was corroborated by videotape or audiotape or by my client.

However, there are plenty of times when I look at the information in the police report and I start digging into it, trying to get additional information, either to corroborate it or refute it. I usually find that there are problems, problems with the accuracy or the truthfulness of what’s written.

I think the best friend that an attorney can have in these cases is a video. Many of my cases will hinge on this videotape, because it typically shows a police officer doing something that’s in total contradiction to what’s been written in the reports.

It’s amazing how these officers will write things that are just plainly incorrect, or blatantly a lie, and think that somebody’s not going to check into it. I assume that there were many attorneys who just have not done that in the past. So, the officer had never been challenged. When I get a case where a police officer has written an untruthful report and he’s been on the job for a number of years, I know that it’s likely he’s written an untruthful or inaccurate report many times in the past. My case can’t be the first one.

I’ll give you a “for instance.” I have a case now where a police officer claims that he watched my client for 20 minutes before taking the first breath sample. He twice wrote in his report, “I had the defendant in my full control and view for 30 minutes before the breath testing started.”

Of course, I didn’t trust a word that he wrote in that report and I made sure that the videotape recording from the station was preserved before the police department recorded over it. I ended up getting the videotape. I reviewed it and I could see clearly that the police officer was not looking at my client for those 30 minutes before doing the first breath test.

In fact, I could see him leaving the room for at least a minute. In the context of breath testing cases, that minute gap matters. Again, it’s a matter of not trusting a word that’s written in the reports. It’s a matter of going out and obtaining and verifying every piece of evidence possible.

The Prosecution May Not Always Supply Information to the Defense Attorney

One would assume that every attorney would go ask for videotape, but they don’t. In fact, many attorneys are told by a prosecutor, “Oh, I don’t think we have videotape in this case,” and they accept that assertion by the prosecutor.

Sometimes, these prosecutors are not being deceptive when they provide that information. They assume there’s no videotape without really asking anybody or without getting confirmation. So, it’s up to the attorney to go into court, get the confirmation by getting a court order and having the judge sign an order stating, “If there’s video, you get it to the defense.”

Unless Requested Early On, Videotape Needed for the Defense May be Destroyed

Yes. That usually happens with video taping that was done by a surveillance camera in the police station. If I find out there actually was video, but it was destroyed because of some retention policy that the police department had, that is a reason to get a case dismissed or at least, the breath testing dismissed, if the video showed what happened in the breath testing room.

Interviewer How often does video get quote unquote “lost,” overridden or disappeared?

Kevin: It depends on the department. There are few local police departments that roadside videotaping. The ones that do have the recording systems will hold onto those videotapes for the duration of the case. In situations where there’s a surveillance system inside a police department that is not typically used for evidence, the police will destroy the recording after 30-45 days.

In those cases, there is a retention policy that’s put in place, because they’re going to only use that video in instances to protect themselves when, let’s say, they’re sued because there’s some allegation that something happened inside the police station when somebody was arrested. For instance, there’s a situation where a claim of sexual harassment by somebody who’s arrested or there was a violent incident in the department.

That’s the reason why they’re using a video in the station and they’ll only keep it for a certain period of time. The attorney has to know that immediate requests are needed to preserve this video and to have it be made available to the prosecutor and ultimately the defense, and then hope that they did that.

Frankly, if they don’t do it, then that could be, as I said, good reason to throw out a case or suppress evidence that could’ve been used against the client.

Your Best Defense Begins with a Thorough Review of Evidence

Again, it’s a situation of digging in as deeply as possible. Another story concerns a client who had a previous attorney who did not do DUI defense on a routine basis. He came to me, mid-case, and explained that his attorney felt he was not going to be able to get the charges dropped against him, because the case looked strong. He ended up hiring me and I started to review the entire paper discovery in the case and could see immediately that there was a malfunction with the breath-testing machine.

Most attorneys will not know to look for the specific area where I saw the malfunction, but it was clear that the machine was recording information incorrectly. That was a sign there were potential operation problems with the breath-testing machine. From that point, we obtained the service of an expert in breath testing to write a report that we submitted to the prosecutor.

The prosecutor ran the issue by one of his breath testing coordinators at the police department. That person clearly didn’t understand this operation issue and thought that it wasn’t really a problem for them in the case.

We decided that we were absolutely going to take this case to trial. We set it up for trial and on the day of trial, we got a call before even arriving at the court, telling us that they were going to drop the case. The reason for it was that we found this operational problem with the machine and we also challenged the field sobriety testing.

We also utilized the client’s medical records, which indicated that he was going to have a hard time doing field sobriety tests. They relented on that case. The moral of the story for me was, again, never accept the prosecutor’s word that he ran the case by one of his experts and they didn’t agree with you. If they don’t agree with you, that’s okay. We’ll have to hash this out at trial. Many times, the State’s experts do not understand that it’s going to be an uphill battle for them to actually prove the case.

In DUI/DWI Cases, the Reliability of the Breath-Testing Machines Can be Questioned

Interviewer Now that you dig really deep into every case, what percentage of cases contains these peculiarities that can make a huge difference in defending them?

Kevin: I don’t know the actual percentage. However, I have seen, in the vast majority of my cases, when all of the data concerning the breath-testing machine is brought to light and examined thoroughly, that there tends to be some operational issues with these breath-testing machines. I’ve discovered, recently, in one of my cases, that there was a programming problem with the breath-testing machine that they use in New Jersey.

I discussed it with the expert witness that I utilize. He agreed with me that it was an issue. We felt that this was the first time that this particular programming issue had been discovered and we used that issue in a number of cases to convince the prosecutor to drop the breath testing results.

We then went to trial in the case and, without the breath testing result, the State really didn’t have anything to build their cases on. There was really no foundation and the clients were eventually acquitted.

Interviewer It seems like a valuable defense tool. If you’re paying your attorney enough to let them do their job properly, they have the resources to research the scientific data behind the breath-testing machine and other issues involved in the case. If that evidence isn’t examined, many cases might go to trial when they should be dismissed.

Kevin: Yes. Absolutely. The major part of winning a DWI case is disposing of the chemical results, whether those results are a breath test results or a blood test results. The way that I’ve obtained a great amount of success is by asking for as much information as possible about the scientific testing that was done. A lot of the time, the prosecutor will not agree to give you everything that you want.

The next step in the process is to get the judge to sign an order. I’ve been very successful at getting judges to sign these orders forcing the prosecution give to me everything that I’ve asked for. Fortunately, when the information has shown problems with the breath testing results or the blood testing results, the courts have precluded the information from being be used against my client. That’s half the battle won.

By Kevin Leckerman

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