This article was adapted from partner David C. Bruffett's chapter in "Inside the Minds: Strategies for Defending DWI Cases in New York, 2015 ed. published by Aspatore Books. Please call (315) 364-1155 or email us for a free consultation with Mr. Bruffett about your DWI case.

I challenge the prosecution’s discovery practices and evidence in a DWI case early on, way before trial. I first try to bring any challenges to the DA because DA’s are busy; they have dozens of cases, and they rarely want to spend a lot of time and effort on a case that is no good. Therefore, one of the very first things that I ask a client is if there is a valid challenge to the DWI stop. I will ask how the client’s actions came to the police’s attention. I want to be able to say to the Assistant DA, “Listen, my client did not commit any underlying violation of the New York State traffic laws—this officer was fishing for evidence.” Likewise, I constantly remind police officers, attorneys, and DA’s that smelling of alcohol, having slurred speech, and/or having red glassy eyes is not illegal—and all of those conditions can be explained away. If you are a 170-pound man and you have a shot of tequila you are almost certainly not going to be impaired but you are probably going to smell of alcohol.

In order to discredit the arresting officer’s reports or testimony I always print out the pattern jury instructions for the charges early in a criminal case. For instance, if my client’s case involves the elements of a Section 1192 or 1193 offense, I need to consider a defense to the charges—something that is really effective and which the DA appreciates. If a certain allegation or specific conduct is brought up in open court in front of a judge I need to be able to provide a reason for my client’s conduct that the prosecution is alleging supports their position that my client was intoxicated. For example, if the report says that the officer observed that my client had red, glassy eyes I might say to the DA, “Here is why my client’s eyes were red and glassy: he had been working for ten hours straight, or he has allergies; and here is some support for that explanation.”

Essentially, I go through each of the elements that the prosecution is using to support their charges and then I try to find an alternate explanation for each element. My client may have smelled of alcohol, which means they consumed it, but that is not illegal. Driving while intoxicated is illegal, but you can smell like alcohol. Similarly, if the officer alleged that once my client got out of the car he was unsteady on his feet or he slurred his words, I look for a valid reason why my client may have been slurring at that time, and why he or she may have been unsteady on their feet. I usually try to give the DA three explanations for why my client performed as they did during the administration of the field sobriety tests; and by doing so I have taken away some of the elements that the DA was going to use at trial.

Also, when I am talking to a jury I will let them know that what is happening to my client could happen to any one of them, and therefore, they should be as outraged as I am that my client is sitting in court as a defendant. During voir dire, I always ask the jurors to promise me that they are going to use their common sense—and I ask that question of each of the jurors individually instead of collectively. Later on I will say to them, “At the beginning of this trial you promised me that you were going to use common sense when judging this case. My client has arthritis in his knee and therefore, his gait is unsteady” or “My client was wearing three-inch heels when she was stopped, and I promise you she can walk better without them on. Therefore, the officer should have taken her to a location where she could either walk barefooted or with a better set of shoes when doing the FSTs.” I make such arguments early on in a trial because I want to make the jurors feel that we should not be in court right now; and the main reason why we should not be in court is because there was never a valid reason for my client to interact with a police officer. Essentially, I want to establish the reasons for the behavior that the officer is now using to support his charges of intoxication with respect to my client.

I am always very happy when the prosecution puts the police officer on the stand because I can then ask the officer about their training—i.e., when was the last time they were trained with respect to the administration of field sobriety testing; and what do they know about the cues and clues that the law mandates they should look for? I generally find that the average police officer never receives the proper in-depth training that they should receive in this area.