The Missing Words from the Pledge Illustrated in a DUI Case

The framers of the Constitution of the United States, with varying religious convictions and worldviews, thought enough of the idea of justice that they agreed to make it the leading moral principle while creating their central document of governance. One hundred and three years after the Constitution’s ratification, Francis Bellamy penned the “Pledge of Allegiance” – which ends in “…and justice for all.” I join these men in agreement with justice being inseparable from legal and moral establishment of order. The reality is that there is not “justice for all,” though there should be. In practical terms, there is only justice for a certain class of citizenry, and I’m not talking about race. Unfortunately, I often come away from a case believing more often than not that the pledge of allegiance is missing a few words, words that add a monetary condition to the availability of justice. If we aim for accuracy, a more truthful reading of that last sentence would be: “justice for all…who can afford it.”

Indulge me for a moment to elaborate on a client’s encounter with our justice system and my legal and moral rationale behind the title of this article.

An officer clocks my client travelling excessively over the speed limit, subsequently blue lights the suspect, and instructs my client to get out of his car. My client admits that he does not have a valid driver’s license. The officer states that he smells marijuana and my client confesses to having two puffs approximately 90 minutes earlier. The officer handcuffs my client to check on his license, and a short while later he informs my client of the suspended status of his license. My client pleads to the officer to let him go, but the officer rightly refuses and says, “I don’t have a choice, bud.” At this point, the officer administers the common DUI Field Sobriety Tests. As a result of the testing, the officer establishes that my client was driving under the influence and takes him to jail.

The entire encounter was recorded via the officer’s patrol camera system and the situation appears bleak for my client.

However, we are all bound by the letter of the law and the implication is that there is a moral obligation to follow the law. It is reasonable for anyone outside of the legal field to assume that this is an “open and shut” DUI case: a valid reason for the stop, an admission of smoking marijuana and driving thereafter, etc., but it’s quite the contrary. After requesting the police vehicle’s video of the encounter and subsequent arrest, I had an opportunity to view it and so did the prosecuting attorney. With my client facing serious charges of driving under the influence, speeding, and driving with a suspended license, my client was in the desperate position. We begged the prosecutor to allow us to plead guilty to a reduced charge of reckless driving, if the prosecutor would agree to dismiss the DUI.

Why should the prosecutor agree to reduce my client’s charge? It is simple. My client’s rights were violated. Unless my client is in custody, the officer can freely ask my client as many questions as he wants without advising him of his Miranda rights. Read the account above again. At which point was my client in custody? Asked another way, when would a reasonable person in the suspect’s position believe they are not free to leave?

• Would a reasonable person believe he is free to leave after admitting to smoking marijuana?

• Would a reasonable person believe he is free to leave after being informed by the police that their license was suspended?

• Would a reasonable person believe he is free to leave after pleading with the officer to not take him to jail only to be met with the answer, “I don’t have a choice, bud.”

According to the U.S. Supreme Court, law enforcement officers are obligated to advise suspects of their Miranda rights when they are in custody: “You have the right to remain silent. Anything you say or do will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.”

If a suspect is not Mirandized, when in custody, then the evidence obtained after this point would be inadmissible. The crux of the issue is when is my client in custody? Having spoken with many attorneys about this case, with the video-taped facts stated above, it is awfully clear that my client is in custody before the officer begins his DUI investigation. And since he was not Mirandized, the entire DUI investigation and the evidence obtained therefrom would be inadmissible.

Instead of the prosecutor obtaining some sort of punishment for his reckless driving, which everyone would agree that my client is guilty of, the prosecuting attorney refuses to deal, and presses my client to plead to DUI, knowing full well that the evidence of the DUI investigation could not be used in trial. While the prosecutor attempts to test my knowledge of the law and diligence with those I’ve been entrusted to represent, the paramount principle of seeking justice is completely lost.

In order to hold the police accountable for violating the law, my client and I are forced to file a Motion to Suppress. This is a formal request to be heard by the court to describe the circumstances that derived illegal evidence and our argument of why that evidence should be suppressed. As you can imagine, this requires occupying premium court time, several trips to a remote area and causing my client to miss valuable time at work. Thankfully, the judge, realizing the officer’s errors, grants our motion. Finally, with the DUI investigation officially thrown out, the prosecutor agrees to dismiss all charges except for a single charge of driving with a suspended license (a charge that we were ready to plead guilty to along with reckless driving).

Though this was a great result, the problem with it is my client had to be able to afford to proceed in seeking justice when the other side of the justice system was simply interested in a game of legal chess. Had he not been able to proceed with the Motion to Suppress hearing, then, he would not have known that he had an outstanding legal argument of excluding the DUI investigation. I am fairly certain that these scenes are far too common in what is determined to be one the best justice systems in the entire world. The establishment of order in society hinges on justice. The laws are in place to protect us all – not just the legally prudent or those with the financial means to afford it. Fortunately, my client was among the lucky ones.

P.S. Public Defenders are often rumored to be incompetent and overworked. While the latter is generally true, some of my best friends are and were public defenders, and they are brilliant. In fact, I have seen many more clueless private attorneys than public defenders. So how can it cost someone when they are receiving “free” legal help? Money is but one factor. Time and energy are key parts of the equation.

P.P.S. While the behavior of the prosecutor described in this article is unreasonable, most prosecutors strive to be fair. Nonetheless, there is a considerable minority who need to reexamine their list of priorities.