6 Secrets The Prosecutor Doesn’t Want You To Know About Your Nebraska DUI
1. You have a right to a jury trial.
Yes, you have a right to a jury trial. The average prosecutor handles about thirty-five cases per day when the judge is the trier of fact and law. However, if you demand a jury trial before your arraignment, you have an absolute right to one. The prosecution hates jury trials because they take at least a full day and sometimes two or more days to finish the trial. They simply have too many cases to spend that much time. If everyone demanded a jury trial, the court system would virtually shut down. Aside from that advantage, if you have a jury of six people deciding the facts, the State has to convince all six of them, beyond a reasonable doubt that you are guilty, increasing your chances of success. You only need one person to doubt your guilt and the State loses.
2. The breath testing machine is inaccurate.
Believe it or not, in your high-tech world the breath testing machine is inaccurate. The most commonly used breathalyzer machine is the Datamaster CDM. Almost all police departments use this machine or its competitor, the Intoxilyzer 5000. Both machines are flawed in their operation and in the basic principle on which they operate. The machine uses an assumption to calculate the amount of alcohol in a person’s blood based on the amount of alcohol that is released into a person’s breath. The amount can vary from between 1100 and 3200. However, the machine uses a standard ratio of 2200, the average between the two. If you exchange alcohol at the 1100 rate, the machine gives a reading twice as high as it should. On the other hand, if you exchange at the 3200 rate, it gives a reading half as high as it should. In any event, the principle is flawed and readings can vary up to 50% from the actual breath content.
3. The police officer that arrested you can’t remember your case by the time of trial.
It’s true! The police officer that arrested you can’t remember your case by the time of trial. The average police officer makes several driving under the influence arrests per week as well as a myriad of other types of arrests. Most dui arrests are similar in the sense that the officer stops a vehicles for some illegal action, suspects the driver is under the influence, administers field sobriety tests, administers a preliminary breath test, arrests the individual and then has someone else administer another breath test. The officer is not be able to remember the specific details of your case.
4. The prosecutor has 20 other cases that he must resolve that day.
The prosecutor has 20 other cases that he must resolve that day. You have an advantage by hiring a private attorney. That advantage is that whomever you hire probably only has 20 or so cases to handle each month. The State attorneys must handle all the cases filed by their officers, regardless of whether they like it and whether they have time to prosecute them thoroughly. So your attorney can file motions and demand a jury trial to which the prosecutor does not have time or wants to respond.
5. The police don’t actually go “by the book.”
The police officer usually does not follow the “book” when administering field sobriety tests. Each police officer is trained to administer field sobriety tests according to nationally accepted standards. These standards are printed by the National Highway Traffic Safety Association and available to your attorney. However, the tests actually are somewhat accurate when and only when administered properly. Police make more arrests if the tests are improperly demonstrated or directed. When the officer testifies, your lawyer should cross-examine him using his own training manual. The results are often comical and sometimes outright alarming as officers vary from not following all procedures to complete ignorance of the training manual.
6. The officer must have a valid reason to pull you over.
The officer must have a valid, explainable reason to pull over your vehicle. In order to stop a person and invade his or her privacy, the law requires that the officer have a particular reason amounting to suspicion of an illegal activity. Further, it requires that he be able to explain his reasons and be tested on their validity by you. Many traffic stops are made without a proper reason. You may file a pretrial motion called a motion to suppress. The Court will schedule a hearing at which the officer must testify and be subject to your examination. If the Court rules that the stop was unjustified, then all evidence obtained as a result of that stop cannot be used against you at trial. If the motion is successful, the State cannot proceed with their case. This is the single most effective way of dismissing your DUI.
* You must file the Petition given to you at the time of arrest within 10 days of the arrest or you will automatically lose.