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Swisher wins DUI trial by suppressing evidence

Attorney Matthew Swisher won a DUI trial on April 14 after gutting the prosecution’s case with a pretrial motion to exclude evidence because the arresting officer did not offer his client a Spanish interpreter.

The jury in Clark County District Court deliberated approximately 40 minutes before returning a verdict. Left to wonder why they didn’t hear about any field sobriety tests, a breath test or a blood draw, the six-member jury unanimously voted “not guilty.”

What jurors didn’t know was Swisher successfully argued in a pretrial motion that any post-arrest statements and the defendant’s refusal of a breath test should be excluded because a language barrier that prevented the defendant from waiving his rights knowingly, intelligently, and voluntarily. The defendant spoke only Spanish, while the officer spoke only English.

Swisher’s client was arrested last fall by a Cowlitz Tribal police officer who pulled him over after following him on I-5. The officer paced the client driving nearly 20 mph under the speed limit and observed him swerving between lanes. He pulled the client over. When he asked the client for his driver’s license, the client told him his English was not very good.

But instead of calling an interpreter, the officer continued to question the client and asked him if he would perform field sobriety tests. The client said, “No, no tests.” The officer took the client to a weigh station to conduct the DUI interview process and to test his blood-alcohol level, which the client also refused. The officer read the defendant his Miranda Rights in English, and when asked if the defendant understood, he said “no”; however, the officer continued with the process in violation of the defendant’s Constitutional rights.

The officer did not, as many officers do after a person refuses testing, get a search warrant for a blood draw. Instead he took the client to the Clark County Jail, where he was cited for DUI. 

The officer was the only witness who testified during the trial, but what he could say was severely limited by the pretrial ruling. He was only able to testify about his observations of the defendant’s driving and visual clues that led him to believe the defendant was under the influence. Of particular note, the officer testified that he was recently hired by the Cowlitz Tribal Police and did not know that an interpreter was available.

In closing argument, Swisher pointed out that the officer didn’t bother to find out if an interpreter was available and never pursued a blood draw warrant to confirm his belief that the defendant was intoxicated, arguing there was not enough evidence to prove the charge beyond a reasonable doubt.

Tags: criminal law, not guilty, DUI, Clark County

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