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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: Okay. I had another case where the client was lost and she was in a bad part of town. She was trying to find her way to a gas station but couldn’t and her cell phone had also died. She somehow found herself on this secluded stretch of rural highway in the middle of the city, which was unfamiliar to her and ended at an oil refinery.

She stopped her car at the guardhouse to ask for a phone, so she could call her husband. Instead, the guard took it upon himself to call the police, because he thought she was drunk. The guard also tells the client that he’s calling the police. She doesn’t flee the scene. She stays right there and waits for the officer to arrive. The officer briefly interviews her and then decides to give her field sobriety tests. He arrests her, takes her back to the station, and gives a breath test. The breath test result was over 0.20% BAC.

Admissible or Not? Certain Medical Conditions Can Interfere With Breath-Testing Results

This is a situation where we decided to pursue a different defense. The defense was discovered by getting her medical records, which indicated she had been diagnosed with reflux disease. We were able to present to the prosecutor information about her reflux problem, which had a potential effect on the breath testing results. We ended up getting a court order to get some more information about the machine.

The police department didn’t produce that information as ordered. The prosecutor acknowledged that he was going to have a difficult time getting that breath test result in because of the violation of the court order and because of the medical problems. He agreed to drop the testing results, which left us with just the observation part of the case.

High-Heeled Shoes and Uneven Ground: Where and When Did You Perform the Field Sobriety Tests?

Now, I had also gone to the scene of the investigation. What was crucial in this case, was the on-scene investigation. At the area where the police officer had my client doing the field sobriety tests, you could see that the asphalt was buckled. He had my client with four-inch heeled boots do balance tests on this very uneven surface. My client never told me about it until I did the investigation of the scene and photographs were taken of the area.

Actually, going out to the area to see what it would look like from her perspective on that evening gave me a great idea of how difficult it would be for her to do the field sobriety tests. Additionally, the area was extremely dark.

She was also scared because she was in the secluded area with these two men. For a woman, that can be a scary situation. She was trying to comply with the sobriety testing instructions on a very uneven surface. However, she could not do the tests perfectly. When I brought all this information to the prosecutor’s attention, it was a factor that helped us negotiate a situation where he dropped the DWI and let my client plead to a simple traffic offense.

A Stressful Situation Doesn’t Promote Perfect Recall

Kevin: This is an interesting topic, because I do have a lot of clients who don’t have the best memory of what happened or they’ll remember one thing and it’s completely inaccurate. That’s a little strange too. You know, under these really stressful situations, it’s very difficult to trust people’s perceptions. The police officer is not under stress and they get things wrong all the time. It’s just weird to see it, but it’s a great example of how the human brain has a very difficult time recalling events in an accurate manner.

Interviewer I agree. Have you ever tried to take pictures of the scene where it happened and show that to the person, maybe that jogs their memory?

Kevin: Yes. I ask clients to go back to the scene actually, because they know exactly where it occurred. I ask them to go back or give them the option of using an investigator to take pictures. I’ll ask them to take pictures themselves, if they would rather do it that way, just as part of what you suggested, so they can remember a little bit better and they do. They’ll come back and say, “Hey, I forgot to tell you this… .”

And you just never know. One of those recollections may have the potential to make a significant difference in their cases.

By Kevin Leckerman

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