Even though most people accused of DUI and other criminal offenses feel that they are presumed guilty the constitution still places the burden of proving guilt beyond a reasonable doubt squarely on the lap of the prosecution.  The problem is that prosecutors are rarely required to meet their burden of proof in obtaining convictions.  A results oriented defense strategy is one that forces the prosecution to its burden of proof at every turn and uses all available tools to ensure that your constitutional rights are fully vindicated.  One of the most powerful and effective tools at your attorney’s disposal is the ability to file motions with the court challenging various aspects of the State’s case.  The prosecutor is required to respond in writing to substantive motions and if an evidentiary hearing is requested he or she will be required to go before the judge to present evidence and make oral arguments in support of his or her position.  Frivolous motions should not be filed, but a hard working legal advocate will always uncover numerous issues through the course of the discovery process which can and should be challenged.  An aggressive motion practice forces the prosecutor to come forward and prove each and every element of its case and in the process several important strategic goals are accomplished:

1) We force the prosecutor, arresting officers and other prosecution witnesses to take time out of their busy schedules to show up for court and testify under oath;
2) We are given the chance to subject the arresting officers to an aggressive cross-examination under oath.  Even if we lose on a particular motion, the officers will very often make some kind of an admission when pressured that is harmful to the prosecutions case, e.g., there were numerous omissions in the police report and the report was not very thorough or accurate.
3) We have an opportunity to preview the prosecutions case strategy in a contested hearing without the risks that we have at trial.  It gives us an opportunity to seek out weaknesses that can be exploited at trial or that give us leverage to negotiate a favorable plea agreement;
4) We send a message to the prosecutor that we are going to fight them every step of the way and force them to work much harder than they want to. 

 

The Supreme Court has ruled that the police may not pull you over in your vehicle without at least reasonable suspicion that some criminal activity is afoot. Reasonable suspicion may be the officer’s observation of a simple traffic or vehicle safety violation or it may be based on reasonable suspicion that some other criminal conduct has just been or is about to be committed. An important element of a results oriented defense strategy entails looking closely at the reason claimed by the officer for stopping your vehicle. If it appears that the officer did not have reasonable suspicion for stopping your vehicle, a motion to suppress all evidence obtained as a result of the illegal stop should be filed, and an evidentiary hearing should be requested by your attorney. The prosecutor will have the burden of coming forward at the evidentiary hearing and proving by a preponderance of the evidence that there was reasonable suspicion for the stop. The officer who conducted the stop will be required to attend the hearing and testify under oath. If the judge grants the motion to suppress then all evidence obtained as a result of the illegal stop will be thrown out. Typically, this means the prosecutor’s case has gone out the window and the charges will be dismissed. Even though suppression motions are rarely granted by the courts, if there is a good faith basis for challenging the stop then the standard of practice of my firm is to file the motion and set the matter for an evidentiary hearing as part of an overall results oriented defense strategy.

The Fourth Amendment to the U.S. Constitution gives all people the right to be free of unreasonable governmental searches and seizures of their person (arrest) and property.  Moreover, all searches and seizures must be supported by probable cause that a crime has been committed or that evidence of a crime will be found in the place being searched.  All warrantless searches and seizures of your person or property are presumptively unreasonable.  This means that if a police officer searches your person or property, including your vehicle without a warrant, the prosecution has the burden of proving that the search was justified by a recognized exception to the warrant requirement. 

A results oriented defense strategy requires a close examination of the officer’s statements and justifications for the arrest and/or the search of your property that resulted in the discovery of incriminating evidence.  If there is any question regarding the probable cause basis for the search or seizure, the standard of practice in my firm is to file a motion to suppress the evidence that resulted from the search or seizure.  This aggressive approach forces the prosecutor to meet his or her burden of proof and overcome the presumption that the warrantless search was unlawful at a contested evidentiary hearing.  Even though motions to suppress are rarely won by criminal defendants, a results oriented defense strategy recognizes that in order to win the war numerous battles must be waged.

If you made a statement to the police that was involuntary or coerced it is inadmissible in court under the due process clauses of the Constitution and the Fifth Amendment privilege against self-incrimination. 

Most of us know from T.V. police dramas about the Miranda warnings that must be given to a person prior to a custodial interrogation by the police.  The Miranda warnings are meant to advise criminal suspects of both their Fifth Amendment rights against self-incrimination and their Sixth Amendment right to the assistance of counsel.  If the police fail to read you these warnings after you have been arrested, and proceed to question you, any incriminating statements you make (e.g., I’ve had too much to drink”) can be thrown out.  

Very often officers will submit police reports that detail incriminatory statements made by the suspect but fail to mention whether such statements were made before or after the suspect was placed under arrest, or whether they were made before or after the officer gave the suspect his or her Miranda warnings. 

A diligent legal advocate will closely scrutinize the context and timing of any incriminatory statements alleged in the police report.  The facts as recited in the police report should be checked against the recollection of the client.  More importantly, the arresting officer’s recollections should be put to the test in a rigorous pretrial interview.  Officers frequently get confused and make contradictory statements regarding the timing of confessions and other incriminating statements when they are put to the test by a results oriented advocate. 

If questions or contradictions arise regarding the timing of a confession or an incriminating statement, a voluntariness motion should be filed and the prosecutor and arresting officer should be compelled to attend an evidentiary hearing to show that the statements were not coerced.  If the court finds that the statements were not voluntary, the law dictates that the statements must be thrown out of evidence.  Moreover, any other evidence that was obtained as a direct result of the incriminatory statement may be kept out of evidence under what is known as the “fruit of the poisonous tree” doctrine. 

Some attorneys may neglect to challenge the prosecutor and police officer regarding how and when incriminatory statements were made, usually because some statements, while incriminating, are not essential to the prosecution’s case.  A results oriented defense strategy requires that every questionable aspect of the prosecution’s case (no matter how small) be challenged and put to the test.