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Defendant's Failure To Pull Over
The officer's next observation may involve the client's failure to pull over after the siren or flashing red lights were activated. Once again, the tactic of the DUI lawyer is not to disprove that this happened, but rather to offer a reasonable explanation. For example, it is not unusual, and thus not evidence of inebriation, to be unaware of flashing lights to the rear, particularly during daylight hours. If the client saw the lights, he or she may have assumed that they were intended for someone else not an unreasonable assumption for someone who believes he or she has done nothing wrong. Or the client may have reasonably believed that it was an emergency and he or she was to get out of the way (which the officer will see as more weaving or an unsafe lane change). If the siren was then used, counsel should develop the increasingly common problem familiar to officers, fire fighters, and ambulance drivers, of motorists being oblivious to sirens because of air conditioning and car stereo systems. With the windows rolled up, the air conditioner on and the stereo blaring through large door-mounted speakers, it is hardly a surprise that many drivers do not hear sirens.
Manner of Pulling Over
The DUI officer may testify that when the client did finally pull over, the client parked at a dangerous angle to the curbindicating the poor judgment and coordination of the drunk driver. It can also indicate, however, a very nervous and frightened driver. The officer should be asked if he or she has observed this type of parking in cases involving routine traffic citations, and if it is common for drivers who are pulled over to be flustered and apprehensive. With blood pressure rising and adrenaline pumping, totally sober drivers have been known to cause traffic accidents under such circumstances. If the officer chooses to deny this, jurors who have been pulled over may begin to doubt his entire testimony; few jurors would react coolly and dispassionately to being pulled out of traffic with flashing lights and sirens.
The DUI attorney should not limit the inquiry to what the officer has testified he or she observed: counsel should also bring out what the officer did not observe. Some experience with DUI cases is helpful here. The officer can be asked if alternately speeding up and then slowing down can be a symptom of drunk driving or, in the alternative, has the officer seen such driving in past DUI cases. If so, did the officer observe this type of driving with the defendant? Was the defendant going off on the shoulder of the road? Was the defendant obstructing traffic by traveling too slowly? Did the defendant run any red lights? Did the defendant cause any other cars to swerve to avoid him or her? What the officer did not observe can be as relevant to the issue of inebriation as what the officer did observe.
Driving symptoms will be used by the prosecution as evidence that the client was under the influence. It is the job of the DUI defense attorney to offer reasonable explanations for the observations explanations that the jury can identify with rather than to directly attack the credibility of the officer.
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