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The mechanical condition of the client's car at the time of arrest should not be overlooked in preparing for trial. A thorough inspection by a licensed mechanic may well produce a valuable defense witness, since mechanical problems can cause weaving and other erratic driving symptoms. Testimony that the car had bent tie rods, a sticking accelerator, defective suspension, worn brakes, faulty steering, improperly inflated tires, or poor wheel alignment, can be effective. Even without such a witness, the possibility of such mechanical problems can be brought out in cross-examination of the officer.
An effective technique in dealing with bad driving symptoms is to establish how long the officer followed the client and then to ask him about the effects of "black-and-white fever." Some officers will know it by another name, but the phenomenon is known. That phenomenon is simply the normal reaction of most drivers to being followed by a marked police car (painted, in many jurisdictions, black and white). As soon as the motorist becomes aware that a police car is following, the motorist becomes understandably apprehensiveand focuses his or her attention increasingly on the rear view mirror. As the officer continues to follow, the driver becomes tense, worried, the driver's concentration on driving broken. The driver keeps his or her eyes more on the mirror and less on the road ahead. As a result, the driver must constantly correct the course of the car back to the center of the lane. Thus, the phenomenon observed by the officer: "weaving"and, possibly, erratic movements such as sudden increases or decreases in speed (tension can cause the foot to depress the accelerator).
The honest and experienced officer will readily admitoften with some humorthat this reaction is a common occurrence. In the event that the officer does not, however, there will certainly be 12 people sitting nearby who will recognize this situation from their own experience.
Suppose the defendant failed to stop at an intersection, narrowly missing a pedestrian. This observation can also be attributed to "black-and-white fever": the driver was watching the police car in the rearview mirror and did not notice the pedestrian in the crosswalk. And, as with speeding, counsel can establish through the officer that failure to stop is a common violation and not necessarily symptomatic of inebriation. Again, has the officer ever cited anyone for failure to stop who was under the influence?
At this point, the DUI defense attorneys might consider asking the officer why he or she had not pulled the defendant over earlier after observing suspicious driving symptoms. Why was the defendant not stopped after he or she was seen speeding? Why not after the apparently serious weaving? If the defendant ran an occupied crosswalk, why was the stop not made then? Of course, the form of questioning must continue to be leading and the witness tightly controlled. But the critical point here is a simple one: the observations of the client's driving couldn't have been too bad or he or she would have been pulled over immediately or at least much earlier. The officer may counter by saying the officer wished to be fair to the suspect by observing him or her for an extended period of time, or perhaps by testifying that the officer was "gathering evidence" by the extended observations. This, of course, can be in turn countered by asking him or her about the primary duty of the officer: to protect the public. Permitting a drunk driver to continue to endanger lives in the name of "fairness" or "evidence gathering" is clearly contrary to the officer's dutyand the officer will be hardpressed to deny it.
Again, the point here is not that the traffic infractions never occurred, but rather that:
- The infractions were not such as to indicate to the officer that the defendant was a danger to others on the road, that is, intoxicated.
- The driving symptoms were not sufficienteven when viewed in their totality to justify detaining (if subsequent detention was only after also smelling the breath, hearing the speech, or other symptoms) or arresting the defendant.