Her reward, of course, was being arrested for driving while intoxicated. In the courtroom, Mark told one of the prosecutors that the case was a "try it or dismiss it" case and that he thought it should be dismissed. The prosecutor then informed him that it was "office policy" to try all total refusal cases.
My first thought was this: another stupid Lykos policy, implemented without consideration of the ethical ramifications. Trying all total-refusal cases might be politically-appealing: it might encourage people to cooperate with the police agility exercises by sending the message that refusing to play is not a free pass; it might make the DA appear to the SWRVs to be tough on crime.
But a policy of trying all total-refusal cases will result in people being put to trial on legally insufficient evidence—a waste not only of the defendant's time, but also of valuable and increasingly scarce public resources. Every court day spent trying a total-refusal case is a day that could be spent trying a family-violence assault case; for every frivolous case the DA's Office tries, it has to lower its plea offers on a host of other cases.
Further, even when the evidence is legally insufficient, anything can happen in a jury trial. In every case, there is a chance that something will go wrong for the government, or that something will go wrong for the defense. If the government forces enough cases that should be dismissed (because the evidence appears to be nowhere near proof beyond a reasonable doubt) to trial, someone will be convicted. So, aside from wasting resources, a policy of trying all total-refusal cases will result in people being convicted on factually and legally insufficient evidence.
I don't know how to break it to Ms. Lykos' minions -- "office policy" doesn't trump a prosecutor's ethical duty to see that justice is done. If you have no evidence other than an admission of drinking and an alleged traffic violation - you don't have sufficient evidence to force a citizen to defend themselves in front of a jury.
That's not enough to expose a motorist to a $3,000 surcharge as well as probation fees and community service - not to mention the stigma of being a convicted criminal. Law clerks follow "office policy." Attorneys are professionals who are trained to think for themselves. Presumably a prosecutor in the courtroom is competent enough to evaluate a case to determine whether or not it should be dismissed or prosecuted. A prosecutor who decides to dismiss a dog shouldn't have to justify that decision to his boss. Such a policy only discourages prosecutors from acting like attorneys.
Of course prosecutors aren't the only folks over at the Criminal (In)justice Center who blindly apply "office policy" to cases.
Recently I was retained on a DWI case in which my client declined to blow in the state's breath test machine. At his arraignment setting the judge ordered him to install an ignition interlock device in his car. I asked the judge why he would require an interlock in a case in which there was no accident and no breath test.
The judge responded that he always requires an interlock if there was an accident, a breath test over .15 or a breath test refusal. He doesn't, however, require an interlock if the breath test is under .15. It's a policy that makes no sense.
The judge hasn't read the offense report. The judge hasn't seen the video. All the judge knows is whether there was an accident or a breath test. Might my client have had an alcohol concentration of .15 or higher? Sure. Might he had had an alcohol concentration of more than .08 but less than .15? Yes. Might it have been less than .08? Certainly.
Regardless of what his alcohol concentration may or may not have been, my client is innocent unless the state can prove each and every element of its case beyond all reasonable doubt. By ordering an interlock device as a condition of bond for a motorist who declined to blow, the judge is casting the presumption of innocence aside.
All in the name of "office policy."