Interviewer: What is the typical strategy for the most common kind of commercial driver’s license cases that involved a field sobriety test?
The Driving Pattern of the Motorist
Attorney: We keep in mind that the police officer and the government really only has three or four things against the motorist that they can use, whether it’s a trucker or a private citizen. The first is the actual driving of the person. I’ve never seen a truck driver case where the officer claimed that he was swerving or weaving all over the road. They must happen somewhere, but I would tend to think that that would be more of an equipment problem than it is a driver problem. So most of those are speeding tickets rather than erratic driving.
Now the strategy behind that is to use all the positive things that the person did against the three things that they didn’t do well. If the officer says, “I pulled him over for speeding,” what else do they have?
They’re going to say the red, bloodshot eyes, they’re going to say the speech was slurred and they’re going to say that they were unsteady on their feet and they smelled of alcohol. That’s all.
Now the person’s going to get out and they’re going to say they couldn’t stand on one leg and they couldn’t walk heel to toe on that straight imaginary line, or they didn’t do it very well. The strategy for us is to turn around and demonstrate, one step at a time, how long that they followed the person driving.
During the time that they observed the driving they noticed that the truck didn’t swerve, didn’t weave, it was really driving appropriately except for speeding. That is when the lights were turned on and the driver’s reaction was appropriate, just like a sober person.
The Attorney Will Argue the Driver Demonstrated Adequate Divided Attention Capabilities
They pulled over in appropriate time, they pulled over at an appropriate location, and they pulled over in an appropriate space, just like a sober person. When the police officer asked for the documents, the driver gave him the proper documents. When he asked for a driver’s license he got a driver’s license, he didn’t get a library card or a credit card. When he asked for the registration and insurance card they got the appropriate document.
So the driver of the car had the mental faculties to understand what it was that was being asked, and they actually performed properly. The multi or the divided attention test was they were driving, and the police officer put his lights on, the person pulled over appropriately just like a sober person would, so the mental capability was there.
The government’s point of view is you’re intoxicated, your mental faculties aren’t there, your reaction time is slow, and you can’t operate a motor vehicle properly. That’s why they arrest you because you’re a menace on the road.
But at the same time, the very police officer that says you’re intoxicated but in fact you properly performed just like a sober person would. Just like the officer would perform.
Following the Officer’s Instruction Is a Demonstration of Proper Mental Acuity
The officer would ask the trucker or the motorist to go to a location to administer the tests to them, that the driver was able to understand those instructions. For example, he went to the location that the officer wanted him to go. The driver understood the instructions, followed the instructions and did the test. They were cooperative and they did everything really just like a sober person.
An Experienced Attorney Will Have Many Ways to Disprove the State’s Often Weak Case against Commercial Drivers
If you cross-examine and you use your strategy properly, the government will have anywhere between three and five things that they say the person didn’t do properly and that’s why they were intoxicated. However, I have probably close to 60 or 70 things that would show that the person performed just like a sober person would. The only thing that would be an issue would be unnatural acts that the officer, in his opinion, says the driver didn’t do perfectly, and that’s how you beat these cases.
They’re going to shine a light in your eye and then they’re going to say your eyes were red, bloodshot and watery. Well, hello! You shined a light in my eyes.
If you are speeding or you have a taillight out, and an officer comes to your car and says, “Have you been drinking? Where are you coming from or where are you going to?” What does that have to do with the initial reason of pulling you over for having a taillight out?
Again, that’s the unfairness of the government because they just love to come to court and say to somebody “I pulled this person over and they said they were coming from O’Malley’s Bar,” and that’s where they get to plant the seed that you’re coming from a bar, you must have been drinking, and therefore, you see? You’re intoxicated.
How about the designated drivers? We’ve had several of those. They were the designated drivers, but we had to prove they were sober. We had to bring in witnesses to prove that this person never drank. They were in the bar and the bartender came and said, “No, this person didn’t drink at all that night. I remember him,” but the officer said he was intoxicated.
Commercial Drivers Cannot Apply for a Conditional License
Interviewer: When you’re working with commercial drivers, is it common for them to feel the situation is hopeless?
Attorney: They’re very cooperative, but they’re very nervous, because of course this is how these people make a living. Whereas a civilian, for instance, may get even conditional driving privileges—that doesn’t happen for the trucker.
He’s got an all or nothing scenario. How is he going to feed his wife and his children, his family? How is he going to pay his bills? If you listen to some of the testimony that we have from the police officers, such as they’ve been a police officer for 20 years, they’ve made 1,000 arrests.
By the time you go through the math of it, they arrest somebody almost every single shift they’re out for DWI. That’s either incredibly lucky, or something else is not correct, because I’m on the road every day, and I can’t tell you I see a drunk driver every day.
Long Island Is Known to Have a High Incidence of Drunk-Driving Arrests by Local Police
Now, is the officer better trained than I am? Does he or she see different traffic patterns? I don’t know about that, but I’m not on the road between 10:00 and 3:00 in the morning all the time. I come across the people I represent who are on the road between 10:00 and 3:00, and most of them are not drunk.
Some of them have had a beer, which is not illegal. Some of them are the designated drivers, but I recognize the police officers I see at trial. I have a lot of the same officers over and over again, and I’m going to tell you that mathematically, they arrest somebody almost every single tour of duty.
Now, sometimes we are our own worst enemies. What do I mean about that? We’ve created a society of tattletales, so if you notice a driver that was swerving and weaving, probably the first thing that went through your mind is that this person must be drunk.
Many Poor Driving Patterns Are Not Attributed to Alcohol Consumption
Instead of “I wonder why this person is swerving.” Probably more times than not, it’s not alcohol related. They’re driving while distracted. They are texting or dialing their cell phones. I don’t think the talking on the phone is as much of the problem as is dialing the telephone.
I had one client accused of drunk driving who was blowing into an interlock device. Periodically, while you’re driving you need to blow into the machine to make sure you’re still not drinking. It prevents people from drinking and driving. Trying to blow into this machine actually created a dangerous driving situation.
Of course, the officer gave them a ticket. Without that device in the car, that person, guaranteed, would have been arrested for DWI. But the fact that the officer saw that he was just blowing into the machine, he gave him a ticket for bad driving as opposed to DWI. I bet you the officer was pretty disappointed about that.
Interviewer: With commercial driver’s licenses, after a conviction, would the CDL be suspended or would it be revoked entirely?
Attorney: For their purposes, a suspension is a revocation. We haven’t found any situations where if your commercial driver’s license is suspended for alcohol related that you can get a conditional driving privilege to still drive as a trucker and exercise your CDL.
CDL holders are subject to a much lower reading. If their BAC is a 0.04 percent, they can lose the CDL. If regular drivers have a 0.04 they are not even arrested or charged with a DWI.
The Driver’s Blood Alcohol Concentration Determines the Length of License suspension and Whether They are Eligible to Apply for a Conditional License
Interviewer: Someone who used to have a commercial driver’s license, can they obtain a regular driver’s license after a conviction for DWI?
Attorney: Yes. There are different thresholds. Even a CDL can be restored.
Revocations and suspension are, generally speaking, not for a lifetime. New York, however, has different rules and regulations. But the law is on a revocation on a regular straight DWI case, drivers can face a loss of license for six months. The statute reads at least six months, it could be more. For an aggravated DWI, somebody who is accused and convicted of having 0.18 percent or more in their blood, it’s a minimum of one year revocation.
If it’s less than 0.08, 0.05, 0.06 through 0.07 it’s a 90 day suspension. Under those circumstances, the driver would be eligible to apply for a conditional driver’s license to drive during that period of suspension or revocation. The conditional license permits driving to get to and from school and work and doctor’s visits, and sometime on a weekend to get their errands done.
New York Law Now Grants the DMV a 25-Year Look Back Period at Motorist’s Prior Driving History
There are times when people are not eligible for conditional driving privileges or a conditional license. They have to wait out the entire revocation or suspension period. In New York now there are new laws and regulations that came into effect where the DMV will look back at the driver’s history 25 years. They investigate to see not only did you have any prior driving while intoxicated, but did you have any bad driving, any accidents, any what they refer to as any serious driving offenses.
If they discover you have, and of course these are up to the DMV to determine, then the driver may not even be eligible to get their license back. They may have to wait out a longer period of suspension or revocation and then they may have to go through a restricted license. Or, in some cases, there are people who have lifetime bans on getting driver’s licenses restored.
It Pays to Retain an Experienced Attorney to Handle a DWI Case
DWI is a very technical field. It’s a very serious field full of collateral consequences that the drivers have to be aware of. If they do not handle their DWI case properly, then they could win the battle but lose the war. Maybe you take care of your case very quickly and you find out that you can never get a license back because you jumped the gun and you just tried to save money and do it the inexpensive way. There’s a lot that goes into handling a DWI case.