Two More DWI Cases…

By Detective (Retired) Martin Swirko

Manchester, NH Police Department

I always considered a DWI arrest a good arrest. In Manchester, you didn’t have to look too hard to make DWIs. Often they found you. And most of the drunk driving arrests I made were not of ladies who had a couple of glasses of wine at lunch or a guy who stopped for a couple of beers on his way home from hanging dry wall or working construction all day. Not to preach, but the fact is that many of the drunk drivers I encountered were falling highly intoxicated, and barely able to function or form a coherent sentence. Many of those had already lost their licenses after DWI arrests but they just kept driving after they drank. Many were alcoholics, which meant they drank every day, and most likely drove when they did drink. These drivers were truly a danger to themselves and the community. I rarely had to look too hard for them or lay in wait outside of a bar, like I’ve seen cops do in some places. Drunk drivers often  attracted my attention by how they were driving. I also knew that getting arrested for DWI was no little thing, especially when that person was an otherwise law abiding citizen. 

When you consider a DWI First Offense conviction, the monetary penalties added up to be significant and other impacts socially, as well as professionally on day to day life for that operator were significant. So I always made sure I had solid probable cause which I could articulate before I arrested and subjected someone to for drunk driving. That sounds elementary and straightforward on the face of it, but I was very careful before I made that charge. 

There were many times when I knew a driver I had stopped was under the influence, but because I couldn’t clearly articulate how I knew this, that I opted not to arrest that person. In those cases I instead made some other arraignment for getting that driver off the road and ensured he or she did not get out and drive later that night. There were times when a driver I believed to be drunk passed two of three roadside sobriety tests and I made to make the decision not arrest. Still, in those cases I always made sure that driver never drove away from the scene.

After my last story about losing a DWI case in court, someone gave me the idea to write about the other DWI arrest I made that went nowhere. As I thought about it, I recalled an additional case where the driver was not convicted. So, I’ll write about these cases two here.

One case was, I thought at the time, pretty simple. In that case, I was working midnights in Patrol and I was sitting in the parking lot of the old Richdale Grocery Store at the corner of Bridge and Chestnut Streets just off of downtown. It was probably about 1 AM, and I was watching traffic as well as the late night shit show that often occurred in that neighborhood as the local bars started to empty out and added to the normal assortment of debauchery and unsavory characters that were out and about wandering that neighborhood.  I was assigned to a busy car, so I was just “showing the flag” so to speak and waiting on the next call. 

As I sat there, I heard this distant, metallic, grinding noise, that kind of sounded to me like a tank or some kind of armored military vehicle closing in on me. The clatter was faint at first, but as it got closer to me, the grinding noise got louder and louder as whatever was causing it got closer. Finally, after I short time I saw what was making the noise. Imagine my surprise when I saw a car, driving westerly on Bridge St. cross in front of me with sparks and flames coming from where it’s two right side tires should have been. The car kept going, past me, through the intersection, across Elm St and onto the bridge. I figured the car to be going at close to 25-30 MPH. The noise was almost deafening as it passed me without slowing. 

Naturally, I pulled out behind it, hit my blue lights and was able to stop it on the west side of the bridge. When I approached the driver, I found it to be a very intoxicated young woman who was pretty irate and immediately became argumentative. She lectured me in no uncertain terms that I had better things to do than bother people driving home when there are so many real criminals out there running the streets unhindered by the police who are hanging out at Dunkin Donuts when not harassing innocent people.  Furthermore, she went on to enlighten me, she lived just on the other side of the bridge and insisted that I allow her to continue since she was so close to home. 

I walked around the car and a quick examination of the two right wheels confirmed there was no sign of rubber or any tires on either of the rims. Since my initial observations and exchange with the driver led me to believe she was very intoxicated, I made a guess that she had probably drove over a curb or some other barrier at a high enough speed that she blew out both tires. I further deduced that in her haste to leave the scene she continued to drive until there was no sign of either tire that must have been on each rim at some point. Of course, this was simply conjecture on my part, and the driver wasn’t very cooperative or responsive to my questions. Actually, she was pretty nonchalant about driving on her rims, as though it was an everyday thing. I believe she eventually told me she must have run over a curb, and anyway  she declared “what’s the difference” In any case, she asserted that there was no law against driving without tires. Besides, she only had two beers earlier. I did not concur with her analysis of the situation she was in and told her so.   

After a contentious on scene investigation I formed the opinion that she was in fact under the influence and I placed her under arrest. I don’t recall if she blew on the intoxylizer or not, but she was in my opinion “really shitfaced’. The car had left a long trail of ruts and scuffs on the asphalt street, too long to photograph the length of without a drone to fly over. I towed and photographed the car, some of the marks, and completed my on-scene investigation. 

Several months later, we went to trial. I was pretty confident on this one. I won’t bore anyone with details of the trial itself. I’ll just tell you that the judge in this case found the driver not guilty. He reasoned that I did not have probable or reasonable cause to stop her. He said she violated no traffic or criminal law by driving on a public way on rims, despite leaving fiery, smoky grooves gouged within the roadway of a city street (my description, not his). We argued that I had an obligation to stop and check on her condition, the reasonable conclusion after watching her drive by that she’d been involved in an accident of some kind. Furthermore, please correct me if I am wrong, but I was and still am pretty sure that in the state of New Hampshire (or any other state) a car would not pass inspection without tires on it, making it unfit and therefore illegal to drive on a public way. Furthermore, I’m pretty confident that if I drove a car on the Everett Turnpike, I-93 or for that matter the Massachusetts Turnpike I would get stopped by the State Police of either state and no where else would that stop be declared unlawful. But the judge would have none of it. He ruled the stop unconstitutional, therefore any evidence of drunk driving I obtained after I detained her illegally (his description) could not be used at trial against her.  A resounding “Not Guilty” was the ruling from the bench. The judge and the defendant both had had a good days for themselves.  For me, that particular court appearance was a miserable start to my day. To say I was slack jawed as I listened to the judge’s reasoning and decision at the time would be an understatement. That my friends, is a true story! 

The next account I offer for your consideration involves a two car collision I was sent to late one afternoon. My memory of this case is as follows: 

A man was driving southerly on Union St, minding his own business, following the roadway when a woman who was driving her car easterly on Merrimack St. blew the stop sign on Merrimack St. striking or T-Boning the driver’s car on Union St. by plowing into the right side of that car, finally coming to a stop. Upon arriving at the scene, the first thing I did was make the scene safe, then checked on the drivers. I requested another unit to direct traffic at this busy intersection. I learned the driver of the car that apparently ran the stop sign had a broken thigh bone, a visible compound fracture which had broken the skin. I then called for an ambulance and after telling the other driver to wait for me, I stayed with that driver until the fire department and ambulance arrived. As far as I could determine, the other driver who was hit was not injured.  

Due to the fact that this injury is considered serious bodily injury under NH law, I requested a traffic unit respond to take the crash. The traffic division declined to take the call since although serious, the injury was most likely not life threatening so I got the news I owned it. 

I surveyed the scene, and one thing that stood out to me was there were no visible tire marks or skid marks visible from the car that ran the stop sign. I did however observe scuff marks and yaw marks form the tires of the car that was struck. This indicated to me that it was probable that the injured driver who ran the stop sign never hit the brakes and her car was only stopped after it collided with the other car, and the speed and force of the collision pushed the other car sideways to it’s left while it’s wheels were still spinning forward simultaneously. Additionally, to me, the fact that the driver that had the broken thigh bone as a result of the collision, indicated that the collision must have happened while she was driving at a considerable speed. 

Well, I did my job, took my measurements and my photographs and made my notes for the diagram of the collision that I’d have to make later. The driver with the broken leg was transported to the hospital for treatment, and I continued with my investigation. When all was said and done, I came to the obvious conclusion that the driver with the broken leg was at fault, and due to the fact that there was serious bodily injury (her) and a likely high amount of property damage I later cited her for failing to yield at a stop sign. I’m sure she didn’t stop or slow for the stop sign, but I had no witnesses to prove that, so I cited her for failing to yield, accident resulting. 

Meanwhile, I had a had a discussion with the driver of the other car that was struck. I noted a slight odor of alcohol on his breath, and during my questioning he had told me he had been working construction all day, and when he was done, he had a couple of beers at the site with some co-workers before he left. On the floor of his car in front of the passenger seat, I located several empty beers cans and inside a six-pack type of cooler a couple of more unopened beer cans. I also thought his speech was a bit thick-tongued, so based on this information, I thought it prudent to perform a roadside sobriety test, especially since there was personal injury in this case. I determined that he passed one sobriety test, but despite the fact that he wasn’t “falling down drunk” I graded the other two as failures and ultimately arrested him for DWI. “It sucks to be him” I thought as I handcuffed him and called for the wagon. After the scene was cleared, I went back to the station to process my prisoner.

In New Hampshire, a DWI arrest becomes a felony if there is bodily injury involved, as there was in this case. Also, at the time, the PER SE level of blood alcohol content to prove drunk driving was .10%. Not much later, that standard was reduced to .08%, like it is now in most of the country.

The driver signed off on his implied consent rights, and told me he did not believe he was intoxicated, so he agreed to give a breath sample. I called in an INTOX operator (I was never one and never had the desire to become one) and my suspect blew, and the result was .10. He was obviously very disappointed, but that wasn’t the end of it.

In the State of New Hampshire, an arresting officer has the right to obtain either a urine, blood or breath sample if he arrests someone for DWI. Normally, for many reasons, we stick with breath sample. But, it’s our choice. On top that the intoxylizer we used at the time (It was NOT the earlier breathalyzer which is known to be inferior and less accurate that the INTOX machine), for evidentiary purposes had a .01 tolerance. That meant that with the .10 % breath sample, the court could assume the defendant really had either a .09, which would probably result in a dismissal, or up to a .11, resulting in conviction. Naturally any court would err on the .09 to protect the defendant. So that left me one choice. I now had to take him to the hospital for a blood draw. According to NH law at the time, he had no right to refuse, and in any case he was agreeable. He was going to co-operate and do anything and all to prove he wasn’t legally drunk. I certainly had no problem with that regardless of the outcome. 

We got to the ER at Catholic Medical Center, and I set up for the blood draw. The hospital had my prisoner sign several release documents agreeing to the blood draw. While waiting, I sat with him and we just chatted for a while. I learned he was originally from Boston and had recently driven a taxi in Cambridge Mass. until he got construction he was working earlier in the day. Naturally, having driven a taxi for several years myself in Boston, we spent some time talking about our experiences doing so. The suspect was under arrest, and I had read him his rights earlier, and I was not going to solicit any more incriminating statements from him while he was handcuffed to a chair despite the fact he had initially waived his rights. Still though the guy seemed like a decent guy to me, he had worked all day and he was minding his own business following the roadway after having a few beers when out of nowhere he gets slammed by this other woman who ran the stop sign. When the blood draw was complete, I was given two tubes of blood for evidence (one for me and one for him to use and have analyzed and I was told that the initial result from their lab showed a .11 BAC (Blood Alcohol Content).

So that was that. Back to MPD where I finally started on a mountain of paperwork, putting my case together. I charged the suspect with Felony DWI, and once he bailed out I escorted from the cell bock to the lobby. I shook his hand, and I wished him well, and I meant it. With the exception of the probable cause hearing a few weeks later, that was the last time I saw that defendant. 

At that time, in Hillsborough County NH, it took about a year for a typical felony charge to work it’s way thought the system to resolution, even longer if the case went to trial. So, life went on and I didn’t think too much about the case after that night. I thought it was a solid DWI arrest. 

Several months later I ended up being called into the County Attorney’s Office (In NH the District Attorney is referred to as the County Attorney, and the ADAs are called Assistant County Attorneys) I went over and met with the ADA that was prosecuting this case. The ADA went on to tell me that the State has decided to drop / dismiss the case. I was puzzled to say the least, but before I could inquire or argue about it, he told me that there was no problem with the case or how I handled it. He went on to say that since I cited and believed and would testify to the fact that I believed the driver who hit the defendant blew a stop sign and therefore caused the accident, the defendant would not be charged even thought there was evidence of drunk driving on his part. The prosecutor went on to say that because there was no “causation” on the part of the defendant it was unlikely he’d be indicted by a grand jury. He said that in order to charge a drunk driver with a felony, in this case serious bodily injury, one of the elements present would have to be “causation”. 

Now this was really surprising to me. I think I had about five or six years of patrol experience in a pretty busy city under my belt by this time. I’d made many DWI arrests as you can probably imagine, and I had never, ever heard of this legal principle before that conversation. During the time I made that arrest, no supervisor or boss ever questioned my felony charge. Nor was it questioned when the judge in District Court found probable cause on the case at the PC hearing and he sent the case to Superior Court as a felony.

I asked if he would consider prosecuting the case as a misdemeanor as an option, just charging him the straight DWI, not the felony for the bodily injury, and he told me that was always a possibility, but he believed that if the defendant opted for a jury trial, it was possible, even likely that a jury wold feel sympathetic towards the defendant because there was no “causation”. He was just driving along after a long day of work minding his own business when this maniac hit him and destroyed his car. As I thought about it, I knew the ADA was probably correct.

Now, we arrest drunk drivers on a regular basis, and often they are not involved in an accident, so certainly there is never an issue of causation in those cases, or so I reasoned.  

I did debate a bit, saying that maybe the fact that the defendant was legally drunk would have caused the defendant to be just a bit slow on his reactions, and how do we know if he hadn’t consumed those beers he might have been able to avoid the accident altogether. The ADA told me I may have been correct, we don’t know that, and in any case, we certainly could never prove that. He closed by telling me they would not pursue a DWI case when an accident occurred if there was no evidence of causation on the part of the driver charged with DWI. So, eventually I accepted his arguments at face value and went back to work. In the end, I guess it worked out for the guy I arrested, and I felt no animosity towards him for getting off.  

I spent half of my police career working as a detective, and I’ve been retired for 4 1/2 years now, so I really don’t know how case law in this state for DWI cases have evolved, therefore I don’t know if that dismissal would fly today in court. 

I guess there really aren’t any lessons in these stories, they are just stories that are true and demonstrate how difficult it can be to navigate the Byzantine labyrinth which we refer to as the Criminal Justice System. 

Well…maybe there is one lesson. That would be, be careful and think really hard before you get behind the wheel of your car after having a few drinks. You could be driving ok and minding your own business and get creamed by some maniac or a drunk driver who just doesn’t care. You might find yourself at the side of the road performing field sobriety tests. Be smart and safe out there!     

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