Every single case at the Marc Lopez Law Firm is important. We recognize that our clients are people. They have families, jobs, and lives of their own, but the world doesn’t stop just because someone’s been criminally charged. They still need to work. They still need to support their families. They still need to do all the normal things in life. When a client tells us they’re innocent of the crimes they’ve been charged with, we take these claims seriously. When we’re able to find evidence that conflicts with the official account, but the State still insists on going forward . . . well, those cases make for the best trials.
One such trial recently took place in Small Town, Indiana, where the defendant was charged with battery against a public safety official as a Level 6 felony, resisting law enforcement as a Class A misdemeanor, and DUI / OVWI as a Class A misdemeanor. The defendant was specifically accused of having kicked a police officer as he had tried to remove her from a vehicle following suspicion of DUI / OVWI. According to the defendant, she may have been less polite than she could’ve been, but she hadn’t been driving drunk, and she definitely hadn’t kicked anyone.
Obviously, all lawyers like the idea of winning, but the attorneys at the Marc Lopez Law Firm also take a great deal of pride in making the State and its prosecutors work for their convictions. This is the way it should be. All criminal defendants are supposed to be presumed innocent until proven guilty. At trial, the burden is on the State to prove its case—not on the defendant. This point is so fundamental to our judicial process that at criminal trial, the Judge will commonly instruct the jury that the accused is not obligated to prove anything or produce evidence of any kind.
When an attorney is defending someone whose guilt is up in the air, the strategy is usually straightforward: Make the State prove its case. In this context, a defense attorney pokes holes where holes can be poked. He insists on proper procedure and he tries to present the evidence in the light most favorable to the defendant.
When a client insists that she’s innocent, though, this tends to change the trial strategy—it gives the defense the chance to go on the offensive. When the defendant actually has a plausible story that conflicts with the officer’s, the best strategy is to try and find evidence that supports the defendant’s account. This has the effect of making the police look mistaken at best, and possibly even dishonest. Believe it or not, it’s much more challenging to defend an innocent person than a guilty one.
Here’s the story: The defendant’s vehicle had gone off the road. Another driver observed her vehicle in a ditch, phoned the police, and offered to let the defendant wait in his truck for help to arrive. The defendant took him up on this. When an officer arrived, he began investigating the defendant for DUI / OVWI, at which point she started becoming increasingly less cooperative. While still seated in the passenger seat of the other driver’s truck, she refused to submit to a certified chemical test and insisted that the police needed a warrant to proceed (professional tip: this was a mistake on the defendant’s part).
To the officer’s credit, a warrant was obtained. The defendant, however, expressed disbelief in the reality of digital warrants (this was also a mistake) and demanded that the officer produce a paper copy. At this point, the officer called for backup. The second officer on the scene had a low tolerance for sass, and when the defendant repeatedly declined to exit the truck, he decided he was going to have to physically remove her. The defendant couldn’t believe that the assisting officer was laying hands on her and pushed against the door to brace herself. And this is where the narrative path forks.
Version A: According to the assisting officer, the defendant kicked him in the stomach. In response, the officer drew his taser, stunned the defendant into submission, and dragged her body from the truck. She was then cuffed and transported to an EMS station for a blood draw.
Version B: According to the defendant, this is exactly what happened—except for the kick. In her account, the assisting officer was simply annoyed and decided it was easier to force compliance on someone who’s been tased.
After the defendant had been arrested, charged, and released, she made the decision to hire the Marc Lopez Law Firm. Once we were on the case, interviewing independent witnesses became the first order of business (professional tip: it’s best to speak to witnesses and lock down their respective versions of events as close to the actual arrest date as possible). Two people inside the truck were able to confirm that the assisting officer had not actually been kicked.
We love trials here at the Marc Lopez Law Firm, but we’re not opposed to less combative resolutions. In order to relieve client stress and uncertainty, we’re almost always willing to consider a reasonable Plea Agreement. In this case, for example, the defendant conceded that her actions had likely constituted resisting law enforcement, and she offered to plead guilty to that misdemeanor charge. The prosecutor, however, was unwilling to offer anything less serious than felony battery against a public safety official. We don’t let clients plead guilty to crimes they didn’t commit, so this was a deal-breaker.
The trial, for the most part, played out as expected. Independent witnesses testified that the defendant had not kicked the assisting officer, and no one was able to verify that she’d ever been driving at all. There was, however, one surprising exchange on cross-examination:
Attorney Marc Lopez: So my client was using her legs to push against the seat in order to get farther from you?
Assisting Officer: Yes.
Attorney Marc Lopez: Is it possible her foot slipped while pushing against the seat to get away from you?
Assisting Officer: Yes.
Attorney Marc Lopez: Do you think she intentionally kicked you?
Assisting Officer: I can’t say if she did it intentionally or not. I just know I was kicked.
Whether he meant it to or not, this bit of testimony had the effect of torpedoing the felony charge, because statutory battery in Indiana requires that unwelcome contact be knowing or intentional. You can’t commit battery by accident, so when the officer acknowledged under penalty of perjury that the defendant’s “kick” may have been inadvertent, he solidified the reasonable doubt that defense counsel had been working to establish.
It took the jury took less than an hour to return its verdict: guilty (as predicted) on the count of resisting law enforcement as a Class A misdemeanor, NOT GUILTY on the count of battery against a public safety official as a Level 6 felony, and NOT GUILTY of DUI / OVWI as a Class A misdemeanor. The defendant will be subject to the conditions of Probation for the next year, but at least she doesn’t have a felony conviction on her record. It wasn’t a perfect victory, but it was a big win nonetheless.
If you or someone you love is facing criminal charges, give us a call at 317-632-3642. We know how to help, even the deck is stacked against you.