Drunk and Disorderly…Not


I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

To a hammer, everything is a nail. To a prosecutor, every defendant is a criminal.

That was nowhere more apparent than a trial I watched yesterday of a man in my home town accused of drunken driving.

These are the bare facts: a rookie cop watched a man leave a bar at closing time; watched him drive his car from the parking lot and slow, but not completely stop, before driving on to the street, where there was no traffic.

The earnest young cop immediately noted this as a traffic infraction, and decided to follow him a bit. After all, the driver just left a bar. He followed him long enough to note another traffic infraction when the man turned onto a four-lane road. You may not realize this, but when you have a choice of two lanes to turn onto, you’re supposed to pick the nearer lane. Our driver picked the farther lane, and that was enough for the rookie. He lit up the party hats, and pulled the suspect over.

Asked him if he’d been drinking. Yes, officer, I had a drink at last call at that bar you followed me out of. That’s what they all say. (Actually, what they all say is, I had two beers.) That was the sixth clue the officer had that yes sirree, we got a drunk here. Leaving a bar, the two traffic violations, alcohol on his breath (smelled, actually, like a brewery), a slight slur in his speech, and minimizing his drinking. Step out of the car.

Do the standardized field sobriety tests. Sorry, sir, you failed to perform them as a sober person would. Would you prefer blood or breath? What, you won’t take either test? No, I don’t have to tell you what you did wrong on the SFSTs. Sure you don’t want to take the chemical test? It could prove your innocence. No? Still mad? Fine. A refusal. Slam dunk for the prosecutor.

Prosecutor thought so, too. Wouldn’t offer a deal, forget about a dismissal. Only reason you’d refuse an alcohol test is if you were drunk.

Except, it wasn’t a slam dunk for the prosecutors (they always like to double-team the defense lawyer and why not: they’re the government). Wasn’t, because at trial the prosecutor learned, apparently for the first time:

  • While the man was clearly belligerent like we know many drunks are, the video the prosecutor showed the jury unfortunately also showed the man pass all the field sobriety tests, so that at first I thought I’d fallen asleep and the defense had put this video on. “Aced it,” criminal defense lawyer Lindasue Smollen got the engagingly honest policeman to agree about several of the tests. Only three years out of the police academy, he hasn’t yet learned to shade his testimony to the prosecution palette.
  • The man smelled like a brewery because he worked all day and night at a brewery, a Boulder beer pub, slopping hops and shit all over the clothes he hadn’t had a chance to change.
  • He slurred his speech because he’s had a lisp all his life and though he’s had medical help with it, all six of his peers in the jury box could still hear it.
  • While the prosecutors took care to establish the officer as an expert in field sobriety tests, so the jury could take his word as gospel, it turned out he hadn’t really read the bible (the SFST manual given to every rookie), because “it’s a really big book” and they went over it in class anyway. No, he didn’t keep it, hasn’t looked at it since.
  • When Lindasue gently asked if an expert shouldn’t have paid more attention to the manual he’s supposed to be an expert on, the nice young cop gestured toward the prosecutor and the judge, “I never said I was an expert. They’re the ones who say I’m an expert.”

Lindasue told her client the jury would probably be out about an hour and a half. I told them maybe twenty minutes. Told them I was stunned this had even been taken to trial; only a blind man couldn’t see it. I forgot that I’m often stunned by prosecution decisions, and that justice really is supposed to be blind.

We were both wrong. Twenty-five minutes. Not guilty.

Yep, prosecutors hit that nail right on the head.


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5 Responses to Drunk and Disorderly…Not

  1. David Bates 25 March 2016 at 6:45 pm #

    Greetings from Tauranga way down under in little old New Zealand! It’s always worth remembering the experts are only as expert as a good cross-examiner allows them to be. Put in the preparation time, get into their heads and get under their skins. It’s surprising not only what one finds but often what one doesn’t!

  2. James Bordonaro 13 February 2016 at 3:24 pm #

    Is there really a book with the SFST title? I have a recent case where the officer asked the suspect to close his eyes and count off 30 seconds to himself. The office determined that it took him 34 seconds. Hence, that was a clue. Seriously!

    On the recent trial front, I had a criminal threat (felony) and misdemeanor battery case return with a not guilty jury verdict in only 9 minutes!

    • Philip Rosmarin 16 February 2016 at 4:09 pm #

      There really is a book for officer training. The 2013 edition is online here.

  3. Bruce Luyendyk 30 January 2016 at 2:50 pm #

    Love it!

  4. Alex 29 January 2016 at 10:31 am #

    Awesome work! My guess is there was a rookie prosecutor involved too. But the line from the cop, “They’re the ones that say I am expert” is priceless.

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