The Most Effective DWI Defense Tactics - Podcast


John Maher: Hi, I'm John Maher. Today, I'm here with Ted Lothstein of the law office of Lothstein Guerriero, with offices in Concord, and Keene, New Hampshire. Lothstein Guerriero represents people who are charged with crimes throughout the state of New Hampshire, in both state and federal court, in trial courts and on appeal.

Ted in particular focuses on cases involving drunk driving, also known as DUI, or DWI. Today we're going to be talking about the most effective DWI defense tactics. Welcome, Ted.

Ted Lothstein: Thank you, John.

John: Ted, what does a lawyer need to do to prepare a DWI defense?

Ted: Obviously, preparation of a DWI defense begins with a pretty lengthy meeting with your client, going through the entire story. When I talk about the story I mean the whole day. From the time the person woke up, or every once in a while we get the morning DWIs, and so we have to talk about the night before.

We want to look back about 18 to 24 hours in the person's life. What they were doing, where they were, who they were with, whether they had alcohol or in other types of DWI cases whether they had any prescription drugs or illegal drugs.

With whom, how much, what time, what time did the consumption stop, what did the person eat because that affects absorption and elimination. What can be verified. If the person went to a restaurant and they said they had two glasses of wine, do we have a receipt that can document that?

Can we get it? Can we go back to the restaurant? If we only have the credit card receipt that has a price on it, can we go back and get the full receipt that shows how many drinks were ordered? We're trying to learn and to whatever extent we can document exactly what the person consumed over the course of the day. That's really important in the defense.

We also want to know about their exposures to any things that may have affected their ability to do tests including the chemical tests, which are the breath tests or blood test.

For example, did the person work on a roof all day? That means they did hard work that'll make it difficult to do physical tests. It means that they were out in the hot sun, they're going to be tired and maybe stiff and sore. It means they may have been exposed to industrial chemicals that could affect breath testing.

Did the person hike a mountain that day? Did they go for an eight mile run? Did the person see a doctor that day for any reason? Did they take any prescription medication? Is a person suffering from any injury or health problem that could have an impact on their ability to do a field sobriety test?

Not just a field sobriety tests, but often a police officer will say to the person walked with a limp, or actually the police officer will say the person exhibited problems with coordination and balance as they got out of the car. The client will tell me that they were walking with a limp because they had an ankle injury.

We want to know all the different things that are going on in the person's life that could present facts to a police officer that a police officer could misinterpret. Does the person have diabetes? Because that presents all kinds of issues for a DWI case that we can discuss at a later part of this interview.

Does the person have other health problems that an officer could miss interpret to be signs of alcohol or drug impairment? How long has it been since the person slept? Are they tired or exhausted, do they have a good reason to be so?

What kind of mood is the person in? I have clients who had a very emotional event that day so they may have spent some time crying or being upset, and that can result in basically facial features, signs of depression or other things that an officer could misinterpret to be signs of impairment from alcohol or drugs.

Then obviously, I want to talk to the client about everything that happened with the officer. What did the officer say or do to get this person to submit to a field sobriety test? What did the officer say or do to get my client to submit to a breath or blood test? How did the officer administer the field sobriety test?

I will sit down with my client and actually demonstrate exactly how each field sobriety test is supposed to be administered according to the standardized procedures developed by the National Highway Traffic Safety Administration, which are the procedures that are trained to New Hampshire police officers by the New Hampshire Police Standards and Training Council.

Then clients will tell me, "Well, that's not what the officer did. That's not what he said to do." Or, "That's not what she told me to do."

We'll develop defenses that way, that the tests were instructed incorrectly. That they were administered incorrectly. You can start to see that there's a lot to do and that's just the first interview. We're going to have their captured breath samples retested, if they took a breath test.

In some most cases, actually, we're going to go to the scene and look at what the scene looks like, in terms of what were the conditions for a field sobriety test? Is it level pavement or slanted? Most roads are slanted towards the breakdown lane, or the fog line, so that water can run off. Is the road smooth, or is it covered in gravel or debris?

Were the tests performed on a road surface, or sometimes in the dirt of mud? We're going to look at all the tests. What are the lighting conditions? Is there lighting from stores or streetlights, or would this have been a very dark place to try to stand on one leg for 30 seconds? Things of that nature.

John: I'd have to assume that it's really important for the client, when they're speaking to you, that they're really honest with you and up front about everything that happened, like you said, in their life for the last 18 hours before their arrest.

Ted: That's right. Most people come in, at the outset, many people come in for a free consultation. Even that free consultation is 100 percent attorney‑client privileged. What occurs in there will never leave that room. In order for it to be useful for the person and for me, I need my prospective client or client to be 100 percent honest.

It doesn't do me any good, in preparing a defense if they tell me they had two beers, and they had ten. That just does not help me at all. In order to effectively cross examine the police officer, I need to know what the truth is.

John: Other than being honest with you in speaking with you, what can the client do to help you prepare a DWI defense?

Ted: This is actually true across all of the misdemeanor criminal cases that I handle. I ask clients to go out and get things along the nature of character references. Things that I can use to show a prosecutor, police officer, or judge the true character of my client, because the police officer usually only has experience with this particular client on one occasion, which may not be the best night of their life. I want to give them their complete picture.

I have clients get character references from employers, from work colleagues, people who have been to school recently, or are still in school, from professors, from faculty advisors, from church groups, from community service organizations, from boards if I have a client who is a member of some kind of business or professional board of directors.

We get all these things to paint the full picture, because prosecutors have very high case loads, and if I've got a client who blew a 1.2 breath test, then to that prosecutor, that's just Mr. 1.2 until we can present the entire picture who this person is.

When I have college kids who are actually good students, I get their college transcripts. When I have young people who are star athletes, I get newspaper clippings because mom and dad always have plenty of those.

We use all this stuff to paint the full picture of the life of a client, and I've found that this is very effective that prosecutors, they want to do their job. Most of them want to do their job in a way that's not just professional, but compassionate towards people. They're interested.

They actually are...this is not true of every prosecutor, but in my experience...and I treat every prosecutor this way, even if I am not sure if they're in this category. In my experience, prosecuting attorneys and prosecuting police officers are interested in learning more about the person that they're prosecuting to help them decide, "What am I going to do with this case"?

Does it have to be a DWI conviction? Has the person already learned their lesson? Is this person a person for whom significant court intervention is required, or has the arrest itself already made a profound impact on their life, so that a DWI conviction is not necessary to do justice"?

John: Are they going after bad guys, if you will, and by showing and proving that this person is an upstanding citizen that might have just made one mistake, that that helps?

Ted: Well, first of all, I have yet to represent a bad guy, or a bad woman for that matter. Once you actually get to know a person, it turns out that the stereotypes disappear. I have yet to represent someone that I would put in that category.

If we're going to be honest with ourselves, if a person has 4, 5, 6, 7 prior DWI convictions, then some character references are not going to help, with one exception. Even for that person, references showing that they do a great job in the workplace matter. Prosecutors and police officers usually work hard, and they respect the fact that they're dealing with someone who works hard and lives up to their obligations.

I don't think that prosecutors or police officers view their job that way, that they're trying to get bad guys. I think that they do view their job as they're trying to protect the public. If they don't have the complete picture about a person, but they do believe that that person was driving under the influence on a given night, then their starting point is that "to protect the public I need a DWI conviction." I have to try to get them away from that starting point.

John: Right. I've heard of a "motion to suppress." Is that something that comes into this? What is a motion to suppress?

Ted: A motion to suppress is the reason why there's no such thing as a hopeless case when it comes to DWI defense. A motion to suppress is a motion that argues to the judge that certain evidence ‑‑ sometimes all the evidence, sometimes part of it ‑‑ should be eliminated from the trial, not heard by the judge or jury, because the way that evidence was gathered was in violation of some kind of law.

It could be constitutional law. It could be the United States Constitution that was violated. It could be the New Hampshire Constitution which was violated. The New Hampshire Constitution actually provides far more rights to people accused of crimes than the United States Constitution does in certain respects.

It could be a statute. It could be an administrative regulation of an administrative agency like the Department of Safety in New Hampshire.

When we file a motion to suppress, we're saying, "Here's what the police did wrong, and as a result, here is the evidence that needs to be suppressed." The absolute best motion to suppress is a motion to suppress the motor vehicle stop. Let me give you an example.

I just handled a case recently. This was a case where the person's breath test was over the aggravated level. It was around 0.19. The way the case started is the officer wrote in his report that he observed that in a neighborhood where there had been some very recent burglaries, at 1:00 in the morning there was a car that seemed to be stopping suspiciously. It drove a block, then it stopped, and then it turned its headlights off and then turned them back on and then backed up a little bit.

This was in the Claremont district court. We filed a motion to suppress that stop, contending that this officer did not have reasonable suspicion to believe that this driver was committing any crime or about to commit any crime. The officer also did not observe any kind of traffic violation.

All the evidence needed to be suppressed. The result of that was not a hearing, but a prosecutor who reviewed that motion and agreed to a plea to reckless driving. This was a person facing an aggravated DWI charge, facing mandatory jail time ‑‑ this was in 2013 ‑‑ facing at least a one‑year loss of their license, who instead was able to plea to a non‑criminal, non‑alcohol related offense, reckless driving.

That's an example of no matter how bad the facts are, no case is hopeless if there's a potential motion to suppress.

Another potential motion to suppress, you basically look at each step along the way of what the police do. The next step, first they pull a driver over. The next step is that they ask the driver to get out of the car for a field sobriety test.

Last year I had a case, in the Plymouth district court, where a person was pulled over in a roadblock. Roadblock cases are the cases, of course, where the police set up a roadblock for a few hours of a Friday or Saturday night usually. Then they pull over every third vehicle, every fourth vehicle, etc. There's some kind of protocol. They're checking everybody for signs of impaired driving.

The nice thing about those cases for defense lawyers is there's almost never any impaired operation. In other words, they're not pulling people over because they're weaving, they're all over the road, because they're driving without their headlights, things like that. They're just pulling them over at random.

I've got a driver at the outset who hasn't actually exhibited any signs of impaired operation. In this case in Plymouth district court, the officer, a state trooper rather, asked the driver if he had been drinking. The driver said "yes." "How much"? "Two beers." The officer asked the driver to step out of the car for a field sobriety test. What happened after that was an arrest and a breath test over the legal limit.

I convinced the judge in the Plymouth district court, with a motion to suppress, that extending the detention ‑‑ by getting this driver out of the car for a field sobriety test ‑‑ violated the state constitution, because the officer didn't have any reasonable suspicion to believe he was dealing with an impaired operator. He saw no impaired operation.

The only fact he had was the driver said he had two beers. So what? That's what people do every day in this state. It's legal. There's nothing illegal about having drinks and then driving. What's illegal is having too much to drink so that your ability to drive safely is impaired. The judge agreed and threw out that case altogether.

If you continue along the steps, you can see that at each step where an officer makes a decision that affects the person's liberty ‑‑ getting them out of the car to do tests, arresting that person, asking them to do a breath or blood test, questioning them after they're arrested ‑‑ at each step, if the officer doesn't follow certain procedures or the evidence doesn't meet a certain standard, we're going to be filing a motion to suppress, to try to suppress the evidence.

For that reason, when people call in and say, "My breath test was 0.15. Should I even hire a lawyer"? the answer is, "Look, we may be able to suppress that breath test. If it comes in, you're in trouble, but we may have a basis to suppress it, in which case ironically your case might be better that a case of someone who didn't blow a breath test at all."

John: Right. How does a DWI defense lawyer like yourself develop a theory of defense?

Ted: First of all, we have to be a little specific here. A theory of defense is not, "My theory is that my client was not guilty." That's not a theory. That's just a plea to the court.

A theory is an explanation for why the officer felt that the driver was impaired. An explanation that provides some reason other than alcohol or drug impairment. A theory of defense is basically the way that you would explain, "How did this happen"?

I've got a client here who didn't have to much to drink. He went into a restaurant with his wife and had two glasses of wine, or he had three beers, or he had some amount of alcohol that I can show you, using simple calculations, would not put someone over the legal limit. Why was this person arrested?

It turns out that we look at, what is the officer relying on? They've got to have more than just the order of an alcoholic beverage because we're conceding that the person had something to drink. If the officer is relying on a failed field sobriety test, well, what's this person's physical condition?

We may have a theory that the person...theory of defense that this person is out of shape, injured his ankle last summer playing some kind of recreational sport, or just moving things around in the house, has a hurt back that flares up from time to time and was flaring up on the night of the arrest. They weren't able to do the tests well for a reason other and alcohol or drug impairment.

We might have a theory that this person has diabetes. I've had a jury trial, for example, where a client faced a DWI charge, who explained to the jury that at the time of arrest, he was going through a low blood sugar attack. That actually leads to a number of symptoms that look very much like a person who's under the influence of alcohol or drugs. Being out of it, having very poor balance and coordination, exhibiting bad judgment mentally.

The New Hampshire Supreme Court has recognized this defense for these types of cases. That would be a theory of defense. We can have theory of defense in a case with a breath test that's over the legal limit, and that's called a disconnect theory.

A disconnect theory of defense goes along these lines. I tried a case in Littleton district court where a woman had blown a 0.15. We had a theory about that breath test. She'd had a gastric bypass surgery. When you have a gastric bypass surgery, the stomach just can't hold onto all its contents, because the stomach is shrunk into this tiny little sack to discourage overeating. People will bring up stomach contents involuntarily.

That's a little bit gross to talk about, but if you've got some alcohol in your stomach, and you're bringing it up through a reflux, which is very common among people who've had a gastric bypass surgery, then you're going to have alcohol fumes coming up through your breath that would give a very high breath number. We had an expert witness for that.

That was part of the theory of defense, but the rest of the rest of the theory of defense was just a disconnect, that this woman, pulled over at 7:30 in the morning, actually performed the one leg stand field sobriety test to a pass. A so‑called failure is if they're not able to hold their foot up for 30 seconds, and if they exhibit one other clue. OK?

You're asked to stand on one leg and count by thousands until the officer tells you to stop, and the officer is supposed to measure out 30 seconds. Most people put their foot down, because it's a very hard test to do. Most people exhibit some of the other clues, like hopping to keep their balance, or swaying to keep their balance, or starting the test too early.

This particular individual passed the test. Basically, I don't think that the judge in Littleton district court really cared much about the expert testimony about gastric bypass. What the judge actually said in open court was, "This woman stood on one leg at 7:30 in the morning, on the side of a road, for 30 seconds without putting her foot down. No way was she a 0.15 breath test. Not guilty."

Basically, what the judge was saying was that there's a disconnect. "You're asking me to find her guilty based on a machine, but I have something that is more important to me than a machine result, and that is my common sense. My common sense says that there's a huge disconnect between this breath test number and the rest of the case, which shows me a person that just...this woman cannot possibly be at a 0.15."

"Something went wrong with that breath test, and I don't care whether it's a gastric bypass surgery or some other problem. Something went wrong, and I'm going to disregard it, because there's a huge disconnect between the rest of the evidence and the breath test." When that happens, we ask judges to dismiss the breath test and go with their common sense.

John: You've been talking about the breath test. What can the lawyer do if the client does take a breath test, or a Breathalyzer, and it's over the legal limit.

Ted: This is sort of a summary of all of the things we've talked about, John. It would be great if we could suppress it. If we can suppress it, then the judge is not going to hear the number, and we don't have to worry about whether it was an accurate number or not.

We're going to have captured breath samples retested. In some cases, we find that something went wrong with the breath test because the captured sample shows a very different reading than the Intoxilyzer 5000 reading, we get the sample suppressed on that basis.

If those thing fail, then we're going to try to find a basis to argue that the breath test machine, while accurate in most cases, must not have been accurate in this case. We try to look at the recent history of the machine, see if it's been acting up, if it's exhibited other problems. Most importantly, we look for the disconnect. We look to see if the rest of the case casts doubt on the person's guilt.

What I'll tell you candidly, John, is that if you've got a client whose breath or blood test is over the limit, and it comes in, and the rest of the evidence looks like someone who's drunk, then we're probably not going to prevail.

Police doing breathalyzer test
John: Is it harder, then, to defend a DWI case if there's an incriminating breath test, as opposed to a case where the driver refuses to take the test?

Ted: In court, yes. Strangely enough, you know, John, that every DWI case is actually two proceedings. It's an administrative license suspension proceeding and a court proceeding.

Administrative license suspension proceeding presents the driver with a six month, or even two year for a repeat offender, suspension, if they refuse the test, or if they provide a breath test of 0.09 or higher, or if they provide a blood test of 0.08 or higher. Notice the difference between breath and blood, which recognizes the fact that breath is less reliable and less accurate than blood.

In the administrative license suspension proceeding, it's actually harder for the state to meet its burden of proof in breath or blood test cases. I more often prevail in the administrative license suspension proceeding for cases with a breath or blood test, than cases with a refusal.

In the court proceeding, that breath or blood test at or over the legal limit, no. That's just one more piece of incriminating evidence. Obviously, we don't want one more. We want one less.

Common sense would dictate that those cases are somewhat more difficult. Not impossible, and we're successful with them a lot, but are they somewhat more difficult than a refusal case, in court? Yes, they are.

John: Ted Lothstein, thank you very much for speaking with me.

Ted: Thank you, John.

John: For more information, please visit the law firm's website, at That's L‑O‑T‑H‑S‑T‑E‑I‑N law dot com, or call Ted at 603‑513‑1919.

Categories: DWI/DUI Defense