The majority of clients are extremely honest people who would never think to lie to a police officer. I agree that people should be honest, but they also need to practice self preservation when it comes to interacting with a police officer, and any law enforcement.
A major DUI defense in my practice is pushing forward with the theory of lack of operation. This simply means the prosecutor does not have any direct evidence that you were driving a car.
Unfortunately this defense gets blown up on many of my cases where the client is asked “were you driving” or they voluntarily admit to driving. This question is only asked by an officer when he has not personally pulled you over, or has another eyewitness to your driving such as a 911 tipster or witness on the scene. You should not assist in your own prosecution, because you want to be honest and truthful; let the police and prosecutor earn their paycheck.
Even without these voluntary admissions of driving, the prosecutor can present indirect evidence of operation such as you own the car, insure the car, and you were found in or near the car when the police arrived. If you’re the only person at the scene, well then who else drove the car? Maybe the car was in an accident, or the hood is still hot, which would indicate the car was just running. Usually the police officer isn’t that lucky to have all of these factors to help their case.
These are all theories that the prosecutor needs to worry about, and as a former prosecutor, I’ve used these indirect theories on 100’s of occasions, but it still comes down to the prosecutor meeting their burden.
If the prosecutor has no direct evidence of driving then it’s a true defense to a DUI; there’s no lying or misstating the truth either, because as the defense we don’t need to prove you weren’t driving or even comment on it. Here is a quick sample of how I would present this theory in a DUI case in Michigan with an effective cross-examination of the officer. You will see that this cross-examination is NOT confrontational, but rather simply seeks admissions of uncertainty or truth.
Me: Officer, when you arrived at the scene, you observed both my client and two females standing outside of the car, correct?
Me: You did not observe my client in the vehicle at any time, let alone driving correct?
Me: And, upon investigation you learned that this particular vehicle was actually registered and insured by someone other than my client correct?
Me: At any time did my client indicate he was driving the car?
Officer: No, he didn’t say anything, I kept asking, but he kept telling me he wanted to speak to his lawyer.
Me: And when you received your radio run of an accident, there was no indication of who was driving correct?
Me: So officer, you come here today not certain that my client was actually driving the vehicle, which you came upon that night?
Officer: Well no, but I’m pretty sure it was him, I could just tell
Me: Again officer, despite your hunch, you have no direct evidence he was driving, because it could have been any of the three people, or even someone who ran away from the scene, isn’t that correct?
Officer: Yeah, I guess so
If you are charged with a DUI in Michigan, and the officer has no direct observation of your driving, then there is uncertainty, which provides reasonable doubt to a jury, which should lead to a not guilty verdict. Even if you’re the only one at the scene, I’ve had many cases where the real driver ran away from the vehicle and left my client holding the bag. The lesson here is to not say a word, and ask for your attorney at all times. Handing your license to the officer is all you have to do upon questioning of that officer.
For a defense like this to work, the jury must be properly educated on the correct levels of legal proof. It’s fine if a jury thinks it’s reasonable you were the driver, probable that you were the driver, 51/49 that you were the driver, and can be clearly convinced you were the driver, but if we give them a reason to doubt it, then you’re entitled to a not-guilty verdict by law.
DUI Attorney & Former Prosecutor Jonathan Paul