What’s to stop a police officer from just arresting random people and charging them with crimes? We all know intuitively that if a police officer keeps arresting random people – without any reason to believe they’re guilty – that police officer will be in big trouble sooner rather than later. The 4th Amendment protects the public against “unreasonable searches & seizures”, and an arrest is a type of “seizure”.

That protection applies throughout the criminal justice system as well. To provide another layer of protection, police officers don’t actually charge people with crimes. Rather, police officers give “charging documents” – basically pieces of paper listing what they think a person did – to the county prosecutors. The county prosecutors have to make the decision of whether or not to actually charge the accused person with a crime, and that decision is based on the strength of the “case in chief”.

The “case in chief” is what the prosecutor will argue in court. If the prosecutor can produce witness testimony that a defendant swerved across a median, crashed into a fire hydrant, and was apprehended by police two blocks away – and 15 minutes later – holding a half-full bottle of whiskey and with a blood alcohol content of 0.10%, that looks like a potentially strong OWI case.

Of course what a prosecutor thinks is a strong case may not be very strong at all – which is where the “case in chief” or “negative” defense comes into play.

In this type of defense, the defense attorney attacks the prosecutor’s “case in chief”. The job of the defense in a case like this is to either take away the prosecutor’s evidence by getting it ruled inadmissible before the trial even starts, or to provide alternative explanations for the evidence offered.

In the case above, are the witnesses reliable? Maybe this was a party where everybody was drinking, and the “witnesses” are fuzzy in the details. Was the defendant, in fact, driving the vehicle when it crashed into the fire hydrant? Maybe they were sitting on the sidewalk drinking, somebody stole their car, and they chased after it. Sure, it’s not great to be walking around in public with an open bottle of whiskey, but public intoxication is better than an OWI! While we’re at it, if the defendant was driving, was the defendant actually drunk at the time? Maybe they had a bottle of whiskey with them, they crashed into the hydrant, and they started drinking because they were stressed about totaling their new car. If it took the police a long time to get the blood test administered, it’s possible the test is showing the results of heavy drinking after the crash, rather than before.

The idea with this type of defense is to cast as much doubt on the prosecutor’s version of events as possible. Since the prosecutor has to prove the case “beyond a reasonable doubt”, the job of the defense is to create that “reasonable doubt”.

Does this work? Sometimes yes, sometimes no. There are cases where the evidence is overwhelming, and there’s not much that can be done. But by the same token, I’ve defended cases where major pieces of evidence were deemed inadmissible, resulting in the case being either dismissed entirely or a very favorable plea bargain being offered.

As with most other legal matters, if you’re facing charges the determination of “overwhelming evidence” shouldn’t be made by you – and you should definitely never take the word of the arresting officers! If you’re facing down that OWI, you don’t need the word of police officers – you need the services of a qualified OWI defense attorney that knows the rules, knows the procedures, and knows how to get you the best possible result.

As always, I hope you never find yourself in a position where you need my services. But if you do, remember that expert legal help is just a phone call away!

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