DWI cases can feel hopeless. Many defense lawyers, even Alex, some weeks find themselves fighting the same battles over the presumed reliability of chemical testing and officer training and experience. Even some of the greatest DWI lawyers go all the way to the Supreme Court of the United States seeking justice, only to be told that the rights which protect their car and their possessions don’t protect their person. In his battles for justice, an attorney practicing DWI law can feel like Don Quixote, the famous windmill chasing Knight fighting for seemingly unattainable ideals. But not all cases reach for the unreachable stars. In some cases, the defense lawyer truly represents THE VICTIM of a crime, and when that happens, that lawyer will have nothing short of vindication. Recently we discussed the very unique “necessity defense” in DWI cases. Alex had the opportunity to apply that particular defense in a recent case in Dakota County in August of 2016.
Dulcinea, a young woman, had decided to go out with her sister and a few friends. When they arrived at one location, they enjoyed some drinks, but then decided they wanted to spend more time together and have some more drinks, and so they decided to go to a bar and bowling alley closer to their home. The plan, in advance, was to leave the car there, and call for a cab ride home, which was all of a five minute drive.
Upon arriving at the bar, they were immediately greeted, sort of, by some young men, approximately 6-8 of them. Initially, conversation was simply flirtatious. It quickly changed character. “Can you take a 10 inch dick?” one of the men asked. “Do you wipe front to back or back to front?” Dulcinea was absolutely taken aback by these disgusting advances and stood up for herself, asking why they felt the need to talk to women that way, especially in front of other women. At one point, one of the women with this group of men through a drink in face of Dulcinea’s sister. Yelling ensued, and both groups were asked to leave the bar out different exits. Dulcinea and her party were asked to wait five minutes while the others departed. Dulcinea and her sister and friends exited the south door to the her car. The car was not running. While they were deciding whether to walk to a nearby establishment or simply call for a ride, the group of males approached their car in an very angry fashion, necessarily walking around the building to get there. “You wanna talk about this bitch?” They began move faster and faster toward the car. A decision was made. As the sister testified “it was fight or flight” and they were not in a position to fight.
As they drove out of the parking lot, in a brazen act of raw aggression, one of the males smashed her back windshield. Dulcinea sped out of the parking lot, directly in front of a police officer, which attracted his attention. Her sister began to call 911, but also, the male told the officer to pull the car over, alleging she had just tried to hit him with the car. As the officer confirmed, she drove all of 250 yards from the South parking lot, onto the road, and then into the north parking lot. Her window had been smashed. A crime had occurred. That crime was criminal damage to property. She saw police lights. She was grateful. Her knights had finally arrived.
Unfortunately, despite the fact Dulcinea had been the victim of vile advances, narrowly escaped assault, and had her window smashed, the police had a singular mission that evening. “Toward Zero Deaths”, meaning DWI arrests. It was Saturday, about 12:30 at night. It was that time of night when, as the officers testified, most people are leaving bars having consumed alcohol. The male told police, and testified, that Dulcinea sped toward him with her car, and that he had gone up and over the vehicle and that is how the back windshield was smashed. Yet, by the accounts of both officers, he did not look like he had been hit by a car at all. In fact, he pointed to a scar on his elbow, which the officer testified was “well healed”, and the officers, having investigated the possibility that Dulcinea had assaulted this male with her car, decided his story was not credible. They next investigated the broken windshield, and despite this jerk admitting he had smashed her back windshield, and despite him making up an absurd story on the fly which nobody had believed, and despite Dulcinea telling the officer what had happened with confirmation from three corroborating witnesses, the officers determined “there was not enough evidence that he’d intentionally broken the windshield.” Unbelievable.
There was Alex’s client, a young damsel in distress asking her sworn protectors for help, and it was found wanting. Dulcinea pleaded for help, for assistance, for justice. Chivalry, it turned out, was dead indeed. The officer turned to the inevitable question, “how much have you had to drink tonight?” Down the primrose path they went through field sobrieties, 9 steps down, 9 steps back etc. etc. all down the Yellow Brick Road of “training and experience”, “toward zero deaths”, toward the squad car in handcuffs, ultimately to the great Wizard of Oz, the Datamaster Transport with Fuel Cell Option, or DMT. Alex attempted his usual dance with science. He tried to pull back the curtain on Great and Powerful Oz. However, the Court, at every turn, stopped him from doing so.
Alex was stopped quickly from questioning his science by a court that effectively said “IR testing is reliable, and that’s that”, completely removing the burden from the State to “establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability.” Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000) (quoting State v. Moore, 458 N.W.2d 90, 98 (Minn. 1990)).. So Alex DeMarco turned back to the story, the story that actually is the burden of the defense to prove. The REAL story. The story of a responsible woman who had made a specific plan to stop drinking, go closer to home, and resume any further drinking there with the full intention of getting a five minute cab ride home. The story of a woman who had been violated. A woman who had been victimized. A young lady who was lucky to be unharmed after escaping her attackers. Alex argued that it was necessary that she drove for all of 250 yards and stopped. The defense had the burden to prove “The harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendant’s breach of the law.” State v. Rein, 477 N.W.2d 716, 717 (Minn.App. 1991) (emphasis added). Alex’s closing argument was easy after all the evidence had finally come in. “Ladies and gentlemen, what harm actually resulted from the defendant’s action? Nothing. What was the harm that would have resulted had she not sped away? Look at that windshield. No look at my client’s face. If you’re glad her face wasn’t shattered like that glass, then find her not guilty.” After a two hours of deliberation, the jury did just that. The justice which officers could apparently not give to Dulcinea from the beginning was ultimately rendered unto her at the very end of the process by a jury of her peers.