Sample Case #5
The client was stopped by an officer who followed him for about one half mile. The client had been weaving all over the road, a one laned highway. When the client was observed, the officer detected a strong odor of an alcohol beverage and had the driver exit his car to perform field sobriety tests. Field sobriety tests were conducted and the client performed extremely poorly. At the station, the client refused to submit to the breath test.
At the hearing regarding the potential suspension for 120 days for refusal to submit to a breath test, the client testified that he refused to submit to a breath test at the scene and when he got to the station, but that the DR-15 Advice of Rights Form, containing the advice regarding the penalties to be imposed for failing and refusing the test, had been signed by him when he was getting ready to be released from custody after having been there for over an hour. He thought the times on the tickets must have been in error, that he was stopped about an hour earlier than the tickets stated. If that was the case, he was right, the DR-15 Form was read later, not right after arrest as it should be. The officer was subpoenaed and the hearing continued.
The Montgomery County police communications tape revealed that the client was right, the officer had transposed 2:30 and 3:20 (approximately), meaning that the client had signed the form on his way out, at (approximately) 3:35 a.m., after he should have been given his implied consent rights.
At the next hearing the officer appeared and testified. He stated under oath that the time of arrest had been 3:20 a.m. and that he had given the advice of rights at 3:35 a.m., shortly after they arrived at the police station. After reading the form, the client refused the breath test.
On cross-examination, the officer was shown the citation he wrote, indicating the time of arrest was 3:20 a.m. He was shown his report sent to Motor Vehicles indicating the arrest was 3:20 a.m. And he was shown his police report showing the time of arrest as 3:20 a.m. He admitted under oath that all of these forms stated accurately the time of arrest, and that the client had been advised of his implied consent rights promptly after arriving at the police station and refused the test.
The administrative law judge (ALJ) allowed us to play the communications tape in her cassette player. When I removed it and the officer testified again, he admitted that all of his prior testimony had been in error. He stated that he transposed the numbers and the time of arrest was really 2:30 a.m. and not 3:20, and he apologized. The ALJ took no action on the MVA's proposed suspension.
When the case came to court, the officer did not want to testify. The case was reduced to reckless driving, and the client received probation before judgment, a fine without points or a record of the conviction.