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Staying the Course

On June 8 a client of mine was found not guilty of DUI and reckless endangerment. The Clark County District Court jury deliberated for 45 minutes before concluding that the prosecution did not meet its burden of proof beyond a reasonable doubt.

This case was contentious for a number of reasons.

The officer who charged the case indicated that he witnessed my client’s vehicle pulling into a parking space late at night. The business that owned the parking space was closed. The officer was concerned about what the vehicle was doing there and decided to investigate. Upon contacting the driver of the vehicle, the officer was concerned that she may have been drinking and conducted a DUI investigation. The officer’s partner noticed her toddler in the back of the vehicle in his car seat. After my client was arrested for DUI, she refused to take a breath test.

When I first met with my client, she laid out her side of the story. She is a single mother and full-time student. The day of the incident was her birthday. She and her son had gone to a small gathering of friends to celebrate her birthday. Other children were present and her intention was to stay the night. When she arrived at the house, there was no parking available. She was asked by the host to park in the lot across the street. After eating, and drinking a few beers, an argument arose between her hosts, and she did not feel comfortable staying the night. She knew that she was not OK to drive, but a sober person at the party told her that she would drive her, her son and her car home. My client returned to the vehicle, put her son in his car seat and was standing outside of the car when the police arrived. The arresting officer was short with my client and did not listen to her explanation.

My client decided to contest the charge of DUI. The first thing we did was file a motion questioning whether the officer had probable cause to investigate her for a DUI. When our intentions were made clear, a deputy prosecutor filed an additional charge of reckless endangerment, alleging that my client’s operation of the motor vehicle put her young son at risk of physical injury. After officer interviews were conducted, our motion date was constantly pushed forward to accommodate the prosecution police witness schedules. Through the constant delays, my client kept her course.

We wanted that motion hearing in order to hear what the officers would be stating on the stand. It also gave us a chance to introduce pictures of the scene as well as a video of my client's vehicle showing that the running head and brakelights turn on automatically when she unlocks her car with her key fob. Although our motion was unsuccessful, it became clear that the prosecution would have a hard time meeting its burden at trial.

Our theory of the case was that the officer saw the vehicle lights when my client was putting her son into his car seat and assumed she was driving. At trial we focused on the fact that the officer’s only proof of driving came from a sideways glance across two lanes of traffic and a parking lot, in the middle of the night, while the officer was travelling the speed limit (about 35 mph). He then had to travel the length of a football field to turn around and come back to the scene. Traffic was nil that time of night, and none of the officers could testify that they saw my client enter into the parking lot from the street.

Most DUI cases that are contested revolve around whether the accused was intoxicated. Much rarer is the case where the issue is whether the accused was actually driving the vehicle. My client was honest about having had some beers, but did not feel OK to drive and would not have done so. The evidence was extremely flimsy and the jury returned a proper verdict. This case was a huge win for my client.

Tags: criminal law, not guilty, DUI

Jeffrey D. Barrar, P.S.: Vancouver Defenders Jeffrey D. Barrar, P.S.
Vancouver Defenders