NC DWI Guy Episode 29: 5 Tips for Challenging Probable Cause in a DWI

Want to improve your chances of attacking a DWI based on a lack of probable cause? In this episode, Jake Minick, the NC DWI Guy, gives five easy-to-implement secrets for winning your probable cause motion. Don’t miss out on these secrets to success!

Highlights:

Transcript:

Welcome to the NC DWI Guy podcast, where defenders of the Constitution assemble to prepare for court room battle, and firm owners gathered to develop marketing strategies that will revolutionize the practice of criminal defense. Here’s your host, the NC DWI Guy, Jake Minick.

Hello fellow freedom fighters, and welcome to another episode of the NC DWI Guy podcast. Today, we are going to be talking about some tips for probable cause hearings in district court. So we’re going to go through five tips for handling a probable cause motion to suppress in district court.

Before I get to that, today is November the 3rd, 2020, Election Day. And sometime this evening, or maybe a couple of days from now, we will have a lot of new people in office, maybe some of the same. However it is that you cast your vote or kind of whatever person or people that you are supporting, I think that we have a tendency as a society, and you can see this on social media right now, we have a tendency as a society to really get extremely invested in the outcome of elections. And when those go our way, we throw a party, when they don’t, we go into a state of despair and depression.

And I would just encourage everybody listening out there, hopefully everybody voted, but hopefully tomorrow when you wake up, you’ll notice that the sun rises and comes up again and does the same thing on Thursday and on Friday, and for the rest of your life, however long that you have been given to walk on this earth. And while our votes are important and while it’s important that we play that role in our society to voice our opinion at the voting booth, it’s also important to continue to do the good work that we are called to do in our families, in our community, in our state, regardless of the outcome of the election, and to kind of double down on our contributions to our communities and to, in particular, our families.

As we kind of finish out 2020 and then into 2021, keeping that mindset of making a difference in the places that we can I think is extremely important and powerful, and it puts us in control. I feel like sometimes when we go to the voting booth, we basically see our control as being able to kind of circle that one name versus the other on the ballot. And then it’s kind of like, “Okay, I’ve done my apart.” And if we let that mindset creep in, that’s really a poor mindset to have in terms of politics, but even more importantly, it’s a poor mindset to have in terms of life. We need to take control in a lot of other ways of how we are contributing to the community and to our families.

So I just encourage everybody to stay optimistic regardless of whether your candidate does or does not get elected, and to have the mindset of doing what you can do to make the people that you get to touch every day better and to improve their lives, regardless of who is sitting in Washington, D.C., hundreds of miles away. So keep that mindset.

So today we’re going to talk about five tips for district court practice. And a lot of these are kind of more broadly based, would not just apply to a probable cause hearing, but I think that you see them very importantly demonstrated in a PC hearing.

So the first thing that you need to do is you have to, number one, tie the officer to his or her notes. Tie the officer to his or her notes right from the outset. In the NITSA Student Manual, there is a whole chapter and then many other sections of other sessions within the NITSA Manual, but there’s a whole session dedicated to note-taking and in court testimony. Officers are trained to take detailed notes of DWI investigations.

So make sure that you begin your cross-examination with, “Officer Smith, you took a written narrative and completed a driving while impaired report in this particular investigation, is that correct? And you’re trained to take detailed notes in a DWI investigation. Is that fair to say? And you took detailed notes regarding indicators of impairment in this particular case, did you not?” The officer is going to buy into that because they don’t want to be looked at as though they’re not doing work or they’re doing a poor job in terms of how they are doing their investigation. So they’re going to buy into that mindset. They are trained hopefully to take detailed notes. So tie them into those notes before you get into the nitty-gritty.

And then, for the vast majority of your cross-examination questions, where there are signs and indicators of sobriety, bring that in by asking about their absence in the notes. And so what I mean by that is if there is no slurred speech noted, don’t ask the question, “Did you hear any slurred speech,” or, “You didn’t notice any slurred speech, did you?” What you ask after that kind of introduction into note-taking by the officer and that they took notes in this case, is you ask, “Officer Smith, you didn’t notate anywhere on your driving while impaired report or anywhere in your written narrative that there was anything unusual about my client’s speech. Is that correct?”

Because now you’re asking them, “Is this in the report or is it not?” We’ve already said everything that was important is going to be in the report. So if it’s not in the report, the answer to that question is now a solid no because it’s not in the report. So every time there’s something that is left out of the report, instead of asking, “Did you see red glassy eyes? Did you hear slurred speech?” because you don’t really know what the answer to that question is going to be, if it’s not in the notes, they shouldn’t say, “Yeah, I actually saw a red glassy eyes, I just forgot to put that down.” That’s not going to happen very often. But if you ask, “Is it present in the notes or is it not?” now they have to buy into it not being there. They have to affirm that that is an indicator of sobriety.

So point number one in a PC case is tie the officer to their notes from the outset, and then craft your cross-examination questions to basically focus in on the lack of impairment indicated in the notes, whatever the specific question is that you asked. “You didn’t indicate in your notes, Officer Smith, that my client had any problems producing license or registration. You didn’t indicate anywhere in the notes that my client was stumbling or having difficulty maintaining his balance at the roadside. Is that correct?” Asking those questions in terms of is it present in the notes or is it not, that locks the officer in to answering the questions the way that you are hoping the officer and anticipating the officer is going to ask.

So that’s point number one. Point number two, tip number two in terms of PC hearings is sequester the witnesses. So if you don’t have a single officer investigation, there’s multiple officers at the roadside, sequester the witnesses. It is amazing to me how many times I have seen officers that have literally been sitting by each other in the courtroom for three hours waiting for your case to be called in which they are going to testify and they don’t talk about the case. A lot of times they don’t talk about anything, they’re just being quiet in the courtroom, sitting there. A lot of officers that get involved in the same investigation don’t necessarily regularly work together. They may not be friends. They may not really kind of care to talk to one another, but it is amazing to me how few times officers will actually communicate about the case that they are about to be involved in as a witness without talking to the other officers.

Separate the witnesses in trial. Because if they have not talked about it, even if they talked about it since the time of the charge but they haven’t talked about it in several weeks or several months, it’s not going to be an easy recall in terms of the absolute specifics of how everything went.

So, minor differences in the testimony is going to go a long way in terms of attacking credibility and how well the officers are remembering the details about this particular investigation; the basis for the stop, the signs and indicators of impairment at the road side, the results of the field sobriety tests, whether or not the officers believed your client was impaired. You would be amazed at the number of inconsistencies that can happen by just separating the witnesses and asking two people about the same event.
Who was the one that performed the field sobriety test? Who is the one that performed the portable breath test? If that’s not in the notes, they may not even know who performed some of the testing. I’ve seen that happen before.

Make sure that you sequester witnesses. Now, know that any time that you request witnesses to be sequestered, that if you present witnesses in the hearing or at trial, your witnesses may also be sequestered. So if you’re going to ask for that, make sure you prepare your own witnesses to be sequestered. But a lot of probable cause hearings, there are no witnesses presented by the defense. It doesn’t mean you shouldn’t present witnesses in a PC hearing, but the vast majority of cases where I’ve argued PC, there have been no witnesses presented for the defense. So just be prepared for any witnesses that you call to also have to be sequestered, but make sure that you separate the witnesses that are testifying on behalf of the state.

So that’s point number two. Point number three, and this is a big one. This is one that I see many DAs miss in a PC hearing and most defense attorneys not capitalize on. This is the point, when a DA does not bring out an officer testimony what field sobriety tests mean. So just to give an example of this. When they don’t bring out what field sobriety tests mean, make sure that you communicate that to the judge.

So let me give an example of this. If the DA has an officer testify about horizontal gaze nystagmus and they talk about how the test is done and what they’re looking for, and ultimately, they say, “I saw six out of six clues on HGN,” but then they never get to a point where they explain what does it mean to see six out of six clues. What is the probability of impairment? Does it mean you’re making a good arrest decision, officer, if you see six out of six clues?

If they don’t tell you what seeing six out of six clues means, how that is to be interpreted, then it is valueless testimony. It is valueless testimony. Just saying, “I saw six out of six clues,” or, “Two out of eight on the walk and turn,” or, “Three out of four on the one leg stand,” if you’re not tying that to a probability of impairment, a probability of a particular alcohol concentration, if you’re not tying that to anything, then you don’t get to testify about that. You don’t get to testify about that. Even if you get to testify about it, it is meaningless in terms of how to interpret a correct arrest decision.

So I see this often where an officer will spend time saying, “I saw six out of six clues on the horizontal gaze, four out of eight on the walk and turn, two out of four on the one leg stand,” and in regards to all of those tests, the DA never says, “What does that mean when you see six out of six clues? What is the percentage that somebody is impaired based on scientific research related to those cases?” None of that is presented. “Basically, I saw these particular clues. That was the clues that I’m trained to look for.”
If they’re not tying it back to impairment, then it is meaningless. The judge is looking at this case in isolation of other evidence that is getting presented, and you need to remind the court of that. “We are in a vacuum, Judge, when it comes to horizontal gaze nystagmus, walk and turn, and one leg stand. Whatever prior information and research that you understand about that, that has not been presented in today’s hearing. It’s not been presented before the court. So even if you know, Judge, what six out of six means, four out of eight, two out of four, if the DA is not tying it back to impairment in this particular hearing, the testimony that has been presented before you is meaningless testimony.” It’s really important to tie that back.

There’s kind of a good example of this in State v. Sule, not in terms of the actual field sobriety tests, but a good example of a officer that kind of leaves something on the table. In State v. Sule, which is an unpublished case, a PC case decided in favor of the defense, in Sule, the officer indicates that there’s an odor of alcohol coming from the vehicle, but never indicates that there’s an odor of alcohol coming from the defendant or the person. Now, was there probably an odor of alcohol coming from the defendant in that case? I mean, I don’t know, but probably, but there was never testimony offered about that. The officer ever testified, “Once I got the person out of the vehicle, I smelled an odor of alcohol coming from that person.”

Same thing with field sobriety tests. If you’re saying, “I saw these four clues on the walk and turn,” but then you don’t give the judge a metric for determining what four out of eight clues on the walk and turn means, basically if you’re only seeing 50% of the clues on most tests, then that’s really not that high of an indicator. We know that on walk and turn, the officer’s only looking for two out of eight clues, but if you’re only seeing four out of eight, then you’re not seeing half the clues that you’re trained to look for.
So in a vacuum, without knowing what two out of eight, six out of eight, three out of eight means, then four out of eight is maybe not that bad. So if the state doesn’t in their direct examination of the officer tie those clues from each of the field sobriety tests back to scientifically validated research, point that out in closing. And just say, “Your Honor, you’re being asked to consider the field sobriety tests as indicators of impairment, but we’ve been given no metric for measuring those results. And again, your Honor, you can’t look to other cases that you’ve had in the past or outside of the record. This is what has been presented before you today.” Point that out. And that happens all the time. I see that regularly in PC hearing. So be ready and aware and ready to argue that in your closing.

Number four, ask for copies of the certificates, the training certificates for the officers that are going to testify about the portable breath test, the standardized field sobriety tests, anything, speeding, their radar certificates, anything that they have been formally trained to do, particularly standardized field sobriety testing and portable breath testing, ask to see those training certificates.

There are many officers that get trained in standardized field sobriety testing and then never do a refresher course. And on the certificate, you very well may see a kind of two year point that the person is considered to be certified in standardized field sobriety testing. You’re supposed to receive a refresher course every two years, every two years to be updated. And the officers that are well-trained, highway patrol officers, they generally do a pretty good job of doing their two year refresher courses with regards to standardized field sobriety testing. But there are a lot of officers that either, A, never get formally trained in field sobriety testing, or B, don’t update their training.
And if you have a copy of their certificate that shows here’s the beginning date of certification, here’s the end date of certification without a refresher course, that can go a long way in terms of saying, “Your Honor, these are standardized field sobriety tests. They’re supposed to be done in a specific, formulaic, standardized manner. They’re supposed to be done in a very formulaic way in order for the science that is behind these tests to be valid in the courtroom. And if the officer’s not following their training, then you shouldn’t consider these.”

Well, you can’t follow your training if you’re not even taking the training. So if they’ve never been certified, I mean, I would just point out to the court this is insanity to consider the field sobriety test of a standardized field sobriety test where the officer has never been trained in the standardization by which he is measuring and giving these standardized instructions. That’s insanity. And hopefully a judge would buy into that. But beyond that, and I’ve seen that happen, just multiple times where the officer conducts standardized field sobriety testing with zero formal training. I’ve had officers testify, “I was trained in standardized field sobriety, in HGN onsite by my supervising officers,” so again, never took a formal course. This happens, where officers will do field sobriety tests with basically no formal training.

So again, make sure you’re asking for those, but the more common thing is that there is a training that occurs 10 years ago, 15 years ago in standardized field sobriety testing, and then no refresher course is ever taken, and that’s as good as not taking the training in the first place. These refresher courses are present for a reason, because these are difficult tests to perform correctly by the officer, and the signs and indicators are very specific and you need that refresher in place. So ask for those certificates and make sure that the officer has within the past two years either taken the student course or the refresher course.

So finally, number five, make sure that you’re arguing the law. So many times in PC cases, it’s the facts that are argued. The State is arguing, “Here’s the signs and indicators of impairment, Judge, that you should be looking at,” and the defense says, “Your Honor, look at all the signs and indicators of sobriety.” And then basically we just let the judge do this balancing weighing test. And PC, in a lot of ways, is a balancing test. It’s a gray area. There’s not a lot of kind of hard and fast cases that basically require a judge to rule in a specific fashion.

But it is extremely rare in the cases that I’ve argued, and I’ve argued a lot of PC cases in the courtroom, it’s extremely rare for the district attorney to approach with any case law. You might see the DA looking through their yellow notebook, their prosecutor’s manual and pointing out cases that are helpful to their position, but to actually approach to give the opportunity for a judge to read a full opinion, that rarely happens.

Take advantage of that difference. If you approach with cases, your presenting the law to the judge, and you very well might be the only attorney in the courtroom that presents the judge with the legal basis for how to make a ruling. To give an example of this. I was in a small county last week, a judge that has been on the bench for many years, extremely experienced judge. I would say that, and I don’t know this for a fact, but I expect that this judge probably has 30 plus years of lawyering experience and has been on the bench for a long time. And this judge, I approached with two cases, State v. Overocker and State v. Robertson. And this judge studied those two cases for about 20 to 25 minutes, read those cases. I think he might’ve read several times, and then commented on how interesting those cases were.

This just something that I kind of do out of habit, but give the judge the basis for making their decision and do not assume that the judge knows the law. Don’t assume that. It’s a bad expectation. A judge, a district court judge, especially in smaller counties, is looking at just so many different legal issues, criminal, civil, all kinds of criminal cases, all types of civil matters, and their ability, they are basically general practitioners on the bench. That’s what a district court judge is. It’s a general practitioner that’s on the bench.
And to expect them to know the intricacies of DWI, a probable cause hearing as it relates to DWI, know every case law backwards and forwards, that’s just a bad assumption. And I think we assume that because you see so many PC hearings that go in front of a judge in the court. At least in many of the counties that I practice in, those are regular issues that get brought up. But it’s a bad assumption to think that just because a judge hears the facts, that they are intimately familiar with the law.

I had a chief judge here in Buncombe County a few years back tell me, because I asked, I think it was State v. Overocker. I was getting ready to present that and I said, “Judge, I’m sure that you’re familiar with State v. Overocker. I have a copy if you’d like to consider it.” And the judge said, “Of course I’d love to consider it. Please approach with the case.” And this is a judge that I knew had seen this case many times, but I still read the opinions every single time that I’m arguing them because I want to make sure that I’m getting the verbiage right, that I’m making sure that I’m getting the facts right in those particular cases. So why would we expect the judge to know all of this case law backwards and forwards when we don’t know it ourselves?

So again, just highly encourage you to pass cases that are helpful to your position. And in this particular episode, we’re talking about PC, so pass helpful PC cases up to the court at the time that you’re making your argument.

And then. I’ll give you a bonus tip. This is the bonus tip, record your hearing. Record your hearing. There’s a couple of reasons for doing this. The first thing that it does is it puts the officer on notice. Now, I normally, when I put my recording device down, I put it on my table and I ask the judge before we started the hearing, “Your Honor, may I record the proceeding?” Nine times out of 10, I’ve had judges that have said, “Yeah, sure, go ahead and record,” with really no objection from the state.

But one of our court appointed attorneys here in Buncombe County last week, I was watching him argue a case and he took the recording device up and put it on the witness stand as the officer was getting ready to be asked questions. And that to me is a much more powerful way to do it. It basically puts the officer on high alert that credibility is important in this courtroom. Don’t say things that you are not a hundred percent solid in. Don’t kind of BS your way through this PC hearing. This is an important proceeding. It is being recorded. It could be used against you in superior court. That’s what that action communicates to the officer.

So make sure that you are doing it that way. Put the recording device in front of the officer. I’m definitely going to take that tip from one of our great public defenders here in Buncombe and start doing it that way.

The other thing that recording the hearing does is it puts you in the driver’s seat for when you have to file or prepare an order granting your motion to suppress. So let’s say that you fortunately in the motion to suppress in district court, the way that the state gets a second bite at the apple in superior court on a granted motion to suppress in district based on probable cause is they get to say, “Judge, we dispute the findings.” In fact, this is what they say in superior court, “Judge, we dispute the findings of fact, therefore we should be granted a Denovo hearing and get to represent everything.”

Now, if you’ve got a audio file, and you can submit your audio file to rev.com or to a local transcriptionist, and you can get your court hearing transcribed for literally like $40. I mean, it’s very cheap to get a transcription of the hearing. But even if you’re just operating off of kind of listening in on the audio, you just kind of want to listen in and kind of get facts if it’s a short enough hearing, you can put into your order the specific things that the officer said and build the findings of facts around what the officer testified to with the conclusion prepared for the judge that based on these facts that were coming from the officer, the court granted the PC motion.

If you do that and you put to the side of each finding of fact where in the audio that happens, so I’ll put the minute and second of the audio where the officer said what he said into the draft order for the court, if you do that, it becomes impossible in good faith for the prosecutor to dispute the findings of fact. They can still dispute the outcome, but you basically take away the second bite at the apple and superior court, the Denovo bite at the apple in superior court, and you replace it with the superior court judge acting as a court of appeals of the district court, just looking at the findings of fact, looking at the conclusions of law, and that’s it.

And that’s where you want to be. That is the place that you want to be arguing from in superior court.Should it get to that point. So make sure that you’re recording, make sure that you approach and put that recording device right in front of the officer, and use that audio, if you need to, in superior court.

Hope that you found this information helpful. Get out there and attack PC, attack probable cause as much as you can. Argue these cases. Here’s your cheerleading session, get out there and try DWI cases. Dispute that there was appropriate probable cause finding. And I look forward to speaking with you again next time.