In reading recent DUI articles for this website, I stumbled across an article from the Augusta Chronicle where a Richmond County Georgia deputy sheriff was forced to resign after admitting to falsifying readings from a portable breath testing device. According to the article, the deputy had 62 pending DUI cases which are now in jeopardy. The article further stated that there may have been people charged with driving under the influence who should not have been charged with the DUI.
Sadly, the falsification of DUI evidence by officers is not new and is definitely not limited to Georgia. I recall successfully defending a DUI case in Rowan County, Kentucky, where the prosecutor and I discovered that the arresting officer had been charging drivers with DUI without supporting evidence. In my client's case, the officer claimed my client was driving under the influence of alcohol. Fortunately, a blood test proved my client's innocence once we received the report indicated he had no alcohol present in his body. The Court dismissed my client's case and the officer was subsequently fired.
Unfortunately, it has been my observation that not all innocent individuals inappropriately charged with a DUI are lucky enough to uncover evidence to prove their innocence. I have observed a disturbing trend in Kentucky where law enforcement agencies which used to have their officers make video recordings of the stop, the Standard Field Sobriety Tests, the arrests, and the suspect's performance on the Intoxilyzer no longer have their officers make these recordings. Without these recordings, it is a bit more difficult to show the court that the officer erred in collecting evidence against the accused.
So what do defense lawyers do when exculpatory evidence is not readily available? We turn to the Confrontation Clause of the Sixth Amendment to the United States Constituion. The Confrontation Clause provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." This usually applies to testimonial evidence, but may also apply to pretrial conferences in order to expedite the case. Of importance, the Fourteenth Amendment makes the right to confrontation applicable to the state criminal prosecutions. It does not apply to civil cases or other proceedings.
Post by Kentucky DUI Attorney Stephen Isaacs, Isaacs Law Office.
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