DUI Defense Is a Complex and Multi-Faceted Area of the Law
Interviewer: What inspired you get into this area originally and what made you consistently focus on this area of the law for almost three decades?
Jerald Novak: I originally began my career in the state’s attorney’s office prosecuting these types of cases. As I prosecuted more and more cases, I began to see that this was a very complex area of the law, and there was more to it than just someone’s undergoing a breath test and the results being over or under 0.08.
DUI Defense Begins with Examining the Initial Police Stop and Subsequent DUI Investigation
Interviewer: What is it about DUI defense that keeps you interested and keeps you in the field?
Jerald Novak: This is really a field that there is much more to it than what is on the surface. There are a million things that can affect a DUI case. Did the person really commit a traffic violation? Did the police officer really see what they claim they saw? Did the officer properly stop the vehicle?
Was the Field Sobriety Test Properly Administered and Scored?
During the investigation, did the officer properly explain the standardized field sobriety test? Did the officer properly demonstrate the standardized field sobriety test? Did the officer properly score the person when they were participating in the standardized field sobriety test? Was the person who was being tested, were they qualified prior to the being administered?
Meaning, were they of the correct age range, the correct body size, type, and/or weight to really be participating in these field sobriety tests? What did the officer say on the audio and video tapes?
These cases are like an onion. There are so many levels to look at to see whether this person really was stopped for a valid reason, and if there really is a genuine suspicion of driving under the influence, and if that suspicion is properly borne out or not. In many cases, a police officer’s subjective opinion coupled with poor training and/or poor administration or poor scoring of the field test results in a wrongful arrest.
Are DUI Cases Often Open and Shut Cases?
Interviewer: When you say these cases are like onions, how often is it just an open and shut case? I mean if the person is obviously guilty, and that’s the end.
What Evidence Do the Police Have? The DUI Attorney Needs to Perform Careful Discovery
Jerald Novak: People all the time will call me up and say, I have this charge and I blew this score on the Breathalyzer. Should I fight it? It’s easy to prejudge a case and make assumptions. But I think what has to be done in each and every case is performing some careful discovery work.
This means obtaining the police report, the alcohol influence report, the dash cam video and the records regarding the breath analysis instrument. This way, I can try to determine if that machine was properly certified, if the operator was properly licensed, and if the machine was properly serviced.
After Analyzing the Discovery, the DUI Case That Appeared Open and Shut May Be Defensible
Once you go through those levels of discovery and analysis, you can often find, and in a large number of cases, there are sufficient errors. A case, which may on the surface looked open and shut, turns out there are defenses available.
You have to view these cases a lot like a balloon. Ask yourself a question, how many holes do you need in a balloon to destroy the integrity of it? Is it a slow leak? Is it a case that is going to take us a while to fight, like chopping down a tree?
You can’t swing the axe once and expect that tree to fall. Or, was there an explosion and the balloon burst open? When I say explosion, I am talking about were there some obvious errors or some obvious mistakes or some obvious misstatements by the police.
Oftentimes the police report, which is a narrative of the police officer’s version of what occurred, will be far different than what is recorded on the dash cam video. Until you obtain all these discovery materials, it’s a bad decision to prejudge a case.