REAL LIFE "IMPOSSIBLE" CASES THAT
CAUTIONARY NOTE Many people think OVI cases are impossible to win. They think that it is useless and a waste of money to pay a lawyer to fight such cases. This perception often causes clients with good cases to give up without trying to obtain a good result. In a real sense, it is misleading and a disservice to clients to allow the belief to persist that all OVI cases are impossible.
Another problem is that whether or not one has a good case often turns on issues that are highly technical and not evident to a layman based upon common sense alone. These examples are given to show how this perception of impossibility can be wrong. Even so, results like the ones below do not happen in every case or even in most cases. They are unusual and hard to achieve. Both the client and the lawyer must be willing to persist and not give up. These examples should not be interpreted as an indication that a similar result can be obtained in your case. There are many factors involved OVI cases. Different factors can cause different outcomes. Almost all of the information below is from police reports or court records. No privileged information is set forth. Information which would identify the clients has been omitted to protect their privacy and the clients have consented to the use of this information.
Example #1: Driving one car onto the hood of another (and testing twice the limit).
The police report said that my client hit a parked car on the other side of the street so hard that he drove it up onto the hood of another parked car. It indicate that he was swaying continuously and vomited. The breath test showed twice the legal limit.
The result: After several minor court appearances, a contested motion hearing was held which lasted several hours. At the conclusion of the hearing the judge ruled in favor of my client. What this meant was that the judge ruled that the prosecution could not use it’s most important evidence, including the test. From a practical standpoint, the prosecution was going to lose the case unless they appealed and got the judge’s decision reversed.
A less experienced or a foolishly aggressive lawyer probably would have taken the win and let the prosecution appeal. Doing that might be good for the lawyer (i.e. a higher fee), but it might very well not have turned out so well for the client if the court of appeals ruled against the defendant as it usually does. Instead of putting my client through this, I suggested that we negotiate a reduction in charges to reckless operation. This kept my client from getting a lifetime record for OVI, kept the attorney fees lower, and prevented the prosecution from getting the judges decision in our favor reversed in the court of appeals.
Example #2: Commercial Driver's License In Danger. Could an OVI ruin your life? There are often hidden consequences to a conviction that the client doesn’t realize until after the case is over and it is too late.
Facts: The police found the defendant asleep behind the wheel late at night in the middle of the street. The defendant smelled of alcohol and had trouble walking. He took the breath test and the result was over one an a half times the legal limit. The defendant’s job involved driving and he had a commercial driver’s license. He was old enough that it would be very difficult to go back into the job market and find another job that was anywhere close to the job he currently had. Losing the case meant losing his job, his pension, and his health benefits. To make matters worse, there was a period of time while the case was going on where he thought he might have cancer. He was worried about facing cancer without insurance and without a job. Even worse than that, his case wound up in front of a difficult prosecutor and a tough judge.
Result: This case lasted much longer than usual. Many court appearances were required. We even had to take a deposition of the client’s doctor. Something that is rarely done in criminal cases. The prosecutor in the case had the thickest file I have ever seen a prosecutor have in municipal court. Mine, of course, was bigger. This last fact is important. A defense attorney has to know more and work harder than the prosecution because the deck is usually stacked in favor of the government.
After many court appearances, a contested motion hearing, a deposition and numerous and time consuming court filings, we were finally able to prevail upon the prosecution to reduce the charges to physical control and to agree to no license suspension. My client kept his job, his insurance, and his pension. Fortunately, it also turned out that he did not have cancer as well. Again, this did not happen easily, quickly, or simply.
In a couple senses it could be said that the attorney’s fees were cheap for my client. First, this was one of those cases where I guessed wrong about the amount of work that would be involved when I set my client’s fee. While my client paid his bill in full, I ended up doing much more work than I got paid for because the fee was set too low. In that sense the price he paid was cheap for the amount of work that he received. Second, what he paid me was cheap compared to what it would have cost him if he lost his job, his insurance, and his pension.
Example #3: Injury accident with victim being loaded onto a stretcher in the background.
Facts: The defendant ran into the back of a car stopped at a stop light and pushed that car into the car in front of it. The video showed a real mess with debris, lots of flashing lights, and an emergency squad. One of the occupants of the other vehicles was being loaded onto a stretcher in the background as the video showed the defendant doing roadside tests. The officer reported that the defendant was swaying, had a strong odor of alcohol and slurred speech. The officer indicated that the defendant failed the roadside tests and had a breath test of .119, about one and a half times the legal limit. The officer also indicated that the defendant was not sure where the accident happened.
On top of this, the defendant had been unemployed was extremely concerned that a conviction here would keep her from being hired for the sort of responsible and well paying position she previously had held. While the case was pending, she was hired but then became worried that an OVI conviction would cost her the job she just obtained.
Result: No OVI conviction. Charge reduced to reckless operation. The sentence was a $200 fine including costs, with no jail, no driver intervention program, no probation, no license suspension, and no reinstatement fee. Again, this case did not go away quickly or easily. Many court appearances were required. No reduction was offered so a contested motion hearing was held with the officer on the witness stand. The judge stopped the proceedings once, called the lawyers back to his chambers and suggested the prosecutor make a deal to reduce the charges. The prosecutor refused so we went back out and I continued my cross examination.
Things kept going downhill for the prosecution to the point where the prosecutor walked over in the middle of my cross examination and offered to reduce the charges. The client agreed. If there is a common theme in cases like this, it is that the client did not give up and that she hired a lawyer who did not give up either. If the client had become discouraged and changed her plea to guilty or she had hired a lawyer who only knew how to beg the prosecutor to reduce the charges and plead the client guilty when that didn’t happen, the result would have been very different. She also kept the job.
Example #4: Routine test case causing stress. This case is routine in the sense that there was nothing particularly unusual about the fact pattern. No case is routine to the client. Many clients wrongly think that they can’t fight the test. Having an OVI pending weighs heavily on their mind. Often clients like this want to get the case over with at the earliest opportunity even if it involves getting a bad result just so they can stop worrying. They think nothing can be done and that fighting the case will just prolong the worry and cost more money. Here is the story of one such client.
Facts: The client is arrested early in the morning coming home from a bar. The officer claimed he was driving without headlights and failed all but one of the field tests. He takes the breath test and tests .109. Because it is a second offense, he is also facing a mandatory minimum 10 days in jail along with other penalties. He was also concerned about this case giving him trouble with advancement to a better position at work.
Result: Case dismissed. This did not happen at the first hearing, the second, or even the third. OVI cases are hard cases and good results rarely happen quickly or easily. Ultimately we were able to bring the judge around to our side in conference and persuade the prosecutor not object to a dismissal of the OVI charges. The records were also sealed so that potential employers could not use this against the client in the future. If this client had just decided to plead guilty at the first court hearing as many people do, he would have risked third offense penalties (minimum 30 days in jail) if he got another conviction, he would have had to serve at least 10 days in jail, and it could have cost him money if he did not get promoted at work.