DUI Attorney Jim Nesci recently talked about this stunning DUI trial victory. Jim spoke to Michigan’s Criminal Defense Association a couple years ago, along with Patrick Barone and Donald Ramsell, and shared some of his tips on defending DUI cases with blood test results. Here is what he had to say about the recent DUI case:
I started a 2-day DUI trial in Oracle, AZ on Thursday (home of Biosphere II) that ended up being only 1-day long. Judge is older than dirt (he’s even older than Peter Gerstenzang).
He graduated from law school in 1958–there were only 48 states back then. Most people his age are dead. The only time I appeared before him was on this case.
He did all of the pretrial motions (and denied all of them). He seemed to really like to spar with me on the finer points of the law during the hours-long evidentiary hearings on the laundry-list of motions that I filed–reasonable suspicion, probable cause, Miranda, voluntariness of statements, source code, Melendez-Diaz confrontation–I think I filed a few more that I cannot remember right now.
I fought this case for 14 months before it actually went to trial (a second time–first was a mistrial during voir-dire). Client was stopped for speeding, weaving and touching the lane divider. Six FSTs were given: HGN, WAT, OLS, FTN, Romberg and Finger Count.
He failed all of them, miserably. Mood swings, cursing, quiet, talkative, etc. Half-empty bottle of vodka in his Jeep.
1st Intox 8000 results: .131 & Deficient Sample. Client belches–new deprivation period is started. Client’s statement–”I’m trying to delay to get my BAC under .08″
Cop reads the “No Delay” warnings. 2nd Intox 8000 results: .134/.127
Morning of trial–Judge hears my motion to preclude state’s expert (Mike Sloneker, formerly of CA, now in AZ). They disclosed him on Monday when they realized that the breath was 2 hours and 4 minutes from the time of the stop and they needed an expert to retrograde the BAC by 5 minutes to put him within 2 hours.
Under AZ law, test can be outside of 2 hours, but they have to retrograde to any point of their choosing within 2 hours to admit the BAC. It is a bright-line rule.
I argued Discovery Rules were violated as the State ignored the requirements for disclosing an expert less than 7 days prior to trial. I made my required Due Diligence Consultation with the prosecutor to try to work things out on Wednesday and turned down the opportunity to interview the expert because I had too many other scheduled things to do–no time.
Judge had previously said no continuances (in April) for any reason. Motion to preclude granted! Expert precluded, BAC suppressed & the per se Count dismissed with prejudice prior to voir dire.
Judge did allow, over my objections, that client took a breath test, made the statement above, and there was a deficient sample (which made it look like the absence of the breath number was my client’s fault).
I nearly had a heart-attack when he made that ruling. State presented the arresting officer, only. DPS Officer Pete Curley. 19 years with DPS and another 6 years with 2 agencies before that. I killed him on cross. I needled him, embarrassed him and dismantled his testimony by playing word-games. The judge actually interrupted me several times during my voir dire, opening and especially cross because the prosecutor was asleep at the wheel and didn’t know when to object.
Close of the State’s case: Judge took the decision our of the hands of the jury–Directed Verdict for the defense! “No substantial evidence to warrant a conviction” is the rule.” Reasonable jurors could not disagree” is the standard used.
Prosecutor was stunned. He actually went pale. He had a real “deer in the headlights” look about him. The facts sucked–I out-lawyered him–that’s how I won.
Best of all–client is among the nicest clients I have ever had. He is a firefighter who had to win this to get his job back (with over $90k in back-pay), keep his paramedic certification (which he would have lost in November) and pass the application process for his RN which he had been working on when this happened–and continued to work on, on the basis that I would win this case).
Trials like this make it worth practicing and I couldn’t have done it if I had not worked hard and learned many lessons from my friends at the NCDD. The win was based on voir dire, opening and cross. Nothing fancy–just solid and aggressive lawyering. This win is, in large part, because of my continued association with this organization. I would not have gained the knowledge, skill or determination that I possess were it not for the NCDD.
Hat’s off to Jim Nesci, unquestionably one of America’s top DUI defense lawyers!
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admin – who has written 85 posts on Michigan Drunk Driving Defense.
Patrick T. Barone is the principle and founding member of the Barone Defense Firm, headquartered in Birmingham, Michigan. The Firm exclusively represents those accused of crimes involving allegations of drinking and driving. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School as well as the author of two respected books including Defending Drinking Drivers (James Publishing), The DUI Book - A Citizen’s Handbook on Defending a Drunk Driving Case, and a chapter in Defending DUI Vehicular Homicide Cases, 2012 ed. (Aspatore Books). He also served as the executive editor of the DWI Journal: Law & Science. He is also a graduate of the Gerry Spence Trial Lawyer's College. Mr. Barone has been listed as “Seriously Outstanding” by SuperLawyers, and since 2009 has been included in America’s Best Lawyers. He has an “AV” (highest) rating from Martindale-Hubbell, and is a frequent lecturer and has presented around the country on trial practice and drunk driving defense tactics.
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