Tuesday, June 17, 2014

The One That Got Away

Attorney David Mintz did all the talking for client Jesse Bollinger (seated)

In a bench trial this morning Judge John Payne found Jesse Bollinger, age 29, not guilty of driving under the influence, 2nd offense.

He was arrested back on Easter Sunday early morning by APD officer Rita Contardo after she noticed his front headlight out and when pulled over he exhibited the strong "order of alcohol, bloodshot eyes and slurred speech."

In other words, the usual traits that gets you out of the car performing a Field Sobriety Test. He also admitted to having just consumed alcohol.

 Jesse Bollinger did not take the stand to testify

On the Step Test, where you have to take nine strait steps heel-to-toe while saying each step aloud, he missed on step #4 -- leaving a one inch gap -- and step #7 where his heel came down on his other foot.

And on the return trip he made the same type of mistake with one step.

On the One Leg Stand, where you lift one leg, point your toes and count up from one one-thousand, he had to use his arms for balance and touched down at 18.

He also raced through the alphabet (although correctly) in a mumbling manner.

After the brief trip back to APD for booking the officer noted her cruiser was left with the odor of alcohol and even after the booking process the room was left with the distinct smell of alcohol.

Defense Attorney David Mintz rattled off a series of questions establishing that there was no indication of impaired driving after the officer followed his client for about 200 yards.  He also asked if police tend to look a little harder for drunk drivers just after bars close, to which she responded, "yes."

As for the FST's Attorney Mintz told Judge Payne that officer Contardo was a "hard grader" and he would not want to have her for a school teacher.  Because only faltering on 3 of 18 steps was close enough.  And the smell of alcohol does not precisely indicate how much you have had.

Judge Payne agreed that she's a "hard marker" and that the mistakes exhibited on the 9 step test were "not significant."  And since she did not give him explicit instructions about reciting the ABCs it doesn't matter that he quickly mumbled them. 

Since a guilty finding requires "proof beyond a reasonable doubt" Judge Payne found the prosecution did not meet the burden of proof.  Without missing a beat, Attorney Mintz then asked the judge to sign a motion for reinstatement of his client's drivers license.

Of course the one telling piece of evidence not presented to the Judge was Mr. Bollinger's refusal to take the breath test back at Amherst police headquarters during the booking process.  State law says you cannot use the refusal to take a breath test as evidence at trial, but the act of refusal instantly garners a six month license suspension. 

In this case the refusal paid off for Bollinger as he now gets his license back less than two months after losing it for refusing a breath test that would have given solid evidence one way or the other for the serious charge of drunk driving.

The state needs to close that loophole. 


Anonymous said...

It's not clear the he was drunk. The fact remains that he wasn't driving erratically.

Anonymous said...

I agree we cannot assume guilt. In this case it's easy to say he stumbled, mumbled, and talked fast. My wife says I mumble my words all the time and I talk to fast when I'm doing it. I am a 270 lb. guy with no co-ordination to boot so I have tried the heel to toe and do ok but make errors stone sober, this goes to boot with the one legged thing. So is there reasonable doubt yes, was he possibly drunk yes. But we have to respect the law and not re-write it every time a persons opinion doesn't agree with how the cards were dealt. If he was drunk they will get him eventually and hopefully before he hurts someone. If he wasn't this might be the last time we see this individual.

Larry Kelley said...

Well if we never rewrote the law, women would still not be able to vote.

Anonymous said...

What should be rewritten? That not taking a test should be proof of guilt?

Anonymous said...

Once again I agree, but we also have to many people lock up each year because of "assumed guilt" only later to found out to be completely innocent. We have to respect the "reasonable doubt". With out it we could have easily impeached Obama, but there are people that think he is doing a wonderful job hence "reasonable doubt" comes into play. Now not to get to far into a political battle here, I hope you can see my point. Just because there is some compelling evidence it does not mean we can disregard "reasonable doubt" and convict an individual with bias personal opinion. On an ending note I personally do think he was drunk at the time,but that is a personal opinion and not a fact of any known evidence.

Larry Kelley said...

Actually CAN, I have a new policy: Don't feed the trolls.

Anonymous said...

You will go hungry yourself, then.

Dr. Ed said...

Larry, I wish that the late Mike Grabiec -- the UMPD LT Grabiec -- were able to respond because he'd show you the errors of your logic.

The other thing that I've never understood is why police officers don't have the patience (or discipline) to spend an extra 2-3 minutes and make sure the person is actually drunk and not adjusting the radio or something.

Cop liability (i.e. the Ware Decision) ought to be changed by statute -- there are other situations where someone can be injured or killed but unable to sue.

Anonymous said...

"...spend an extra 2-3 minutes and make sure the person is actually drunk and not adjusting the radio or something."

Really, do you think the police enjoy arresting people and processing belligerent folks. They don't work on commission. I think they only do it because they get a front row seat view of grotesque maiming and killing of innocent kids, wives, husbands, fathers, mothers, sons, daughters, and such. It's the police officers job to arrest them, they have no control over what the lawyers, judges and juries do with them.

Anonymous said...

You are all the problem. Every post (well nearly) speaks of "drunk" i.e. intoxication. Very few people arrested for OUI and what we perceive to be the really problem: drunks..incapacitated stumbling fools. While these arrests happen, they are uncommon.

The barometer used by LE is impairment. A persons ability to operate a motor vehicle safely has been lessened by their consumption of alcohol (in respect to mental clarity, reflexes and judgement)…thats very issue is hashed out in Comm v Connelly (therefor the Connelly standard is applied).

The tests that LE uses are STATISTICALLY VALIDATED to show impairment at a level of 0.08 (see the 1998 San Diego Study). The clues are specific and itemized (i.e. not opinion). The test they do not speak of, HGN, is 88% reliable in that aspect. The others are 79% and 83% respectfully. Cops don't guess…oh and BTW, in the 98 study cops correctly arrested 91% of impaired operators.

There are volumes on this ladies and gentlemen. A person does not have a RIGHT TO REFUSE anything if certain factors exist (read comm v Blais) but due to the Ma Declaration and the 5th amendment it cannot be used agains them (kinda important documents).

Mr. Bollinger should not have been driving that night. If the judge or jury gives him a pass, thats their choice.

Anonymous said...

I have always thought the FST is a slippery slope. As mentioned above it's a hard test to pass when your stone sober in a comfortable environment. But add in the dark of night, nerves, flashing blue lights, weather, cop(s) around you... not many sober people woudl pass.

Larry Kelley said...

Actually the officer testified she turned off her blue lights, the weather was perfect, the road well lit and the terrain perfectly flat.

Anonymous said...

"Really, do you think the police enjoy arresting people and processing belligerent folks. They don't work on commission"

No, you're right, they don't work on commission. but their department/state kind of do. they get money from more tickets they give. Hence why you here about police meeting their "quotas." while they might not have a quota, they get pressured by their department to earn the state more money, thereby being more strict when they feel the pressure from their bosses.

but i agree, they should spend an extra couple minutes to actually find out the person is drunk

Anonymous said...

Anon 0119: Are you drunk? Drunk is not the threshold. There are no such things as quotas. Stop believing in myths, water cooler banter (probably now best summed up as blog banter) or urban legends.

Larry, to put this shit to bed I suggest you go to the PD and research this…I am willing to bet that the APD write a large amount of citations each year. I want to know what the break down is..civil versus criminal versus warnings…put this to bed or raise an eyebrow..

And all (most) of you would make bad cops…their responsibility is public safety not criminal prosecution. That is the DAs job. Make sure the guy is drunk…take more time to see if the guy is drunk..drunk..drunk…drunk…wrong wrong wrong.

Let a possibly impaired person go and they crash? $$$

Do not stop a possibly impaired person go and they crash? Victim(s) and potential $$$

Read the other anon post above..seems like that person may be onto something especially about police response…I read the suggested cases. Maybe you should too..or you can just post your guesses.

Anonymous said...

@anon 1109...are YOU drunk?

as i said, there are NOT quotas. but there is pressure to pay the bills. more tickets = more money, and a lot of departments (state and local) need money, hence the pressure. this is not a myth, i'm sorry you are too blind to see otherwise.

and had police taken one or two extra measurements to ensure the likeliness that the perp was drunk, perhaps then he wouldn't have gotten away. though slippery slope, i guess, since no one wants a person to crash (hence why they get pulled over). but for real, the cops WANT criminals prosecuted, just like the rest of us...for safety

and i also never said drunk was the threshold. although perhaps it is. if a .08 is the line for being drunk/not drunk, then that's the threshold. get over yourself, seriously

Dr. Ed said...

HGN, is 88% reliable in that aspect. The others are 79% and 83% respectfully

Ummmm... "beyond reasonable doubt" is described as a 90+% level of proof -- which none of these tests meet.

88% reliable is a 12% failure rate -- out of every hundred, 12 are falsely convicted. 79% is more than a FIFTH are falsely convicted!

Would we accept this high an error rate in anything else?

Oh, and as to waiting a couple extra minutes before flicking on the blues -- it's called "establishing probable cause beyond a scintilla of doubt" -- remember that (depending on departmental protocols) an OUI arrest takes two officers off the road for about 90 minutes -- when they might be able to stop a more dangerous driver.

I'm serious, an officer in good faith observing a possible drunk driver should not be liable for not immediately stopping the vehicle.