Ex-Arapahoe Douglas County Prosecutor H. Michael Steinberg Reveals Some Things Your Prosecutor Doesn’t Want You To Know About Your Colorado DUI
After a lengthy career as a Colorado State District Attorney – certain things became very clear to me. Several of those “secrets” were well known to both prosecutors and defense lawyers. In this brief article on traffic court – I discuss a few of those inside matters.
If everyone insists on their constitutional right to go to trial, the prosecutor will be in court all day.
In some cases, especially after the recent toughening of the mandatory minimum sentences for DUIs, the sentences have become so harsh that a defendant in a DUI trial risks absolutely nothing by going to trial.
Many clients ask me if a judge will penalize them with a harsher sentence if they assert their right to trial. The Colorado State legislature has now raised the minimum sentence for certain DUI cases to such a high level, that, if you decide to go to trial on your case, in most instances, as a practical matter, you are going to get the same sentence as the person who pleads guilty.
The prosecutor doesn’t want to be there.
No one takes a job at a prosecutor’s office because they fantasized about prosecuting in traffic court. In most jurisdictions, the prosecutors would rather be prosecuting felony cases than handling a traffic court docket. Furthermore, the prosecutor has anywhere from 30 to 80 other cases on the traffic court docket that they must handle that day. When I was a prosecutor in Arapahoe and Douglas Counties, there would be at least four traffic courts with several different prosecutors going through “the docket” every day. The main consideration on every prosecutor’s mind was to get through the cases the fastest, so they could be through with court as soon as possible.
The prosecutor is unprepared.
In the vast majority of jurisdictions in Colorado, prosecutors do not look into traffic cases ahead of time. Most of my clients are shocked when I tell them that it is impossible for me to contact a prosecutor with knowledge about their case prior to the court date to discuss their case, because the prosecutors do not look into the cases ahead of time.
The police officer is unprepared.
Your case is just one of an entire docket full of cases that the District Attorney has on that date. It is not unusual for the same DUI officer to have 5 to 10 DUI cases on one date in addition to dozens of other traffic tickets. The officer often has little if any recollection of your arrest. That becomes apparent time and time again in court when I object to an officer testifying by reading from his notes and, after my objection is sustained by the judge, the officer clearly has no independent recollection of the arrest.
Most prosecutors know very little about the science (or lack thereof) behind field sobriety testing.
At no time during law school does the professor ever say, “Today we’re going to learn about standardized field sobriety testing.” A thorough knowledge of these tests would actually hurt their cases and prevent them from making arguments that I routinely hear prosecutors make to judges while trying to argue that the results of these tests should be given more weight than they were ever intended to. For example, the three standardized field sobriety tests were only used to predict a BAC of .10 or above. Since the legal limit is now .08, there is almost no weight that a judge could give to these tests on someone with a BAC of .08 or .09.
The police officer did not follow proper procedures for the field sobriety tests.
If a police officer receives proper training about field sobriety tests, they will be told the proper standards and procedures according to the National Highway Traffic Safety Administration (“NHTSA”). However, for example, on the “follow the pen with your eyes” test (the horizontal gaze nystagmus test, or HGN), the manual says that if the suspect moves his head during the test, the officer should use his flashlight or his free hand as a chin rest of the suspect. In 28 years of practicing law, I have never seen an officer use anything as a chin rest for a suspect, even though in the vast majority of those cases the officer testifies that the suspect was swaying and unsteady on his feet!
The manual also states that the walk-and-turn and one-leg stand test should not be done if the suspect is over 50 pounds overweight or has physical impairments that could affect his balance. The manual also states that the walk-and-turn test “requires a line that the suspect can see.” This is rarely done.
The breath testing equipment is inaccurate.
The breath testing machine is just that – a machine. 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.
The manufacturers of the Intoxilyzer 5000 have flat out refused to reveal their source codes to defense attorneys. The source codes are basically the mathematical formula that the machine uses to convert a small sample of breath to a blood alcohol content number.