I had a DWI bench trial yesterday. It was a total refusal. My client completely refused to perform any of of the field sobriety testing or blow into the intoxilyzer 5000. Not guilty.
The problem with DWI refusal cases is that DWI is largely an opinion crime. In the officer’s opinion you have lost the normal use of your physical or mental faculties. Combine huge amounts of law enforcement discretion with the Witch Hunt mentality of DWI prosecution and you have a recipe for injustice.
The officer stated that my client’s only indications of intoxication were; drum roll please……. speeding, part of one tire crossing the center line, my client admitted to drinking 1-2 beers, and the 3 usual suspects in DWI- bloodshot eyes, slurred speech, and the odor of alcohol. That’s it. Arrested, Charged, and Tried based on that alone.
Every DWI I have ever seen involved “bloodshot eyes, slurred speech, and the odor of alcohol.” I used to wonder why.
3 reasons-
1. Those are impossible to disprove in court. The camera can not see the defendants eyes on tape. Slurred speech is an opinion. And we have yet learned to capture odors on the in dash camera.
2. NHTSA training. Officers are trained to look for these among dozens of others signs of intoxication.
3. Police Reports- Most DWI reports have easy to check boxes for DWI clues, they all include those 3 reasons.
Back to number 2- We train officers to look for many clues of intoxication. The NTHSA manual lists dozens. Unfortunately if a defendat shows only 3-4 out of 50 clues, the cop can make the decision to arrest. That’s what discretion gets you.
Why? Because DWI is an opinion crime.
To compare, it could never be an officer’s subjective opinion alone that you killed somone, possessed drugs, started a fire, robbed a bank; the officer would need some actual objective tangible objective evidence to arrest you.
DWI, being an opinion crime, requires no objective evidence for you to get arrested. Throw in a DA’s office that prosecutes ALL DWI cases and you will have innocent people convicted.