Once More, Into The Breach Dear Friends

Day Two In Wonderland

So, here I am, back in the land that law forgot, for the second day running. Today’s case is a felony drunk driving were the defendant managed to get charged with two counts, which just seems to have irritated retained appellate counsel beyond all reason.
The argument on appeal is that it is not fair that the witnesses, friends and neighbors of the defendant, fingered him for the sheriff’s deputy who investigated his one car rollover accident. That it’s not fair that the police information network was able to tell the deputy where he lived, according to his drivers’ licence information. That it’s not fair that the same police information network was able to provide the deputy with the dates of his several previous drunk driving convictions so the deputy was aware that he was investigating a felony. And that it is really, really not fair that the deputy, less than 30 minutes after arriving on the scene, having found and identified the vehicle the defendant had been observed driving away from the scene of the accident, in the driveway of the address on his drivers’ license, and having knocked on the door and then asking his mother if he was at home, and having been told he was, could enter the house and make an arrest after the defendant had taken the trouble to get into bed and pull the covers up over his head. (Apparently I’m going for the Leo Tolstoy sentence length award here.)

So, two counts? After he flipped his own car (mind you, this was in the middle of the afternoon) in front of three or four witnesses, two of whom knew him personally, the defendant called a relative to come get him. Relative came and was walking up and down the side of the road with the defendant, trying to get him to calm down. At this point, the defendant sees the approaching emergency flashers of a volunteer firefighter/EMT and thinks the cops are after him. Well, they were, but not for another ten minutes.
Realizing that he is going to be in deep trouble (not only is he drunk, his license is revoked for the previous set of drunk driving convictions) he decides to make a quick getaway - in his relative’s car. When the relative realizes what is going on, he wisely declines to either ride shotgun or attempt to subdue his bigger, younger, drunker relative, opting to wait for the authorities. The defendant drives off in front of even more witnesses who know him, including the just arrived chief of the local volunteer fire department. Thus, once the defendant is hunted down and a blood alcohol analysis shows he’s, oh, twice the old limit (almost three times the new limit) two, count ‘em two drunk driving charges.

This was a three or four day jury trial. The defendant retained some out of town hot shot who papered the trial court with motions seeking to suppress everything but the color of the arresting officer’s eyes. Some of them even had merit. Eventually, the thing went to trial and the jury convicted on both counts in about 15 minutes.
Anyway, like I said, some of the arguments made by trial counsel had merit and the appellate attorney, also retained, parroted them. I think I’ve covered the law and the real facts fairly well, but my confidence is just a tiny bit shaken by the caviler attitude this panel displayed yesterday. At least today opposing counsel blew the deadline for preserving argument and hasn’t moved for special argument.

Once again I am the first case with anyone endorsed for argument. After the PJ makes his introductory remarks (identical to yesterday’s, as close as I can tell) I head up to the lectern and start my pitch. "May it please the court, . . ." at which point the PJ interrupts and says "Good to see you again, Mister DA. I just wanted to let you know we really appreciated your argument yesterday, it was very helpful. Now, is there anything special we should know about this case?"

OK, obviously, there is some sort of space/time warp on the expressway between my county and the big city! Right! Thanks to extensive training by the United States Army in the days of my misspent youth, I have a finely honed sense of when to quit while I’m ahead. "No, Your Honor, I think I’ve covered everything in my brief, so, unless there are any questions, I’ll let the court get on to the rest of the docket." No questions (thank God!) and I’m on my way to the parking lot. Some days you eat the bear, some days the bear eats you.

We don’t have opinions in either case, yet. I expect them this week or early next week. Any bets on which way they come out?