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DUI Overturned Because Cop Can’t Recall Arrest Details

Tuesday, 3. September 2013

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A Wisconsin man had his DUI charge thrown out after the arresting officer could not provide accurate details about the traffic stop.

Richard M. Fischer, of Mequon, was arrested in 2005 on suspicion of driving under the influence. He attempted to fight the charge in court, but he was convicted after the court heard testimony from Officer Chad Wucherer, who arrested Fischer on the night in question.

Fischer appealed the decision, and he got the ruling tossed out after a federal magistrate determined that Fischer’s right to an expert witness was denied during the original trial.

Although the original ruling was thrown out, Fischer was forced to submit to a retrial. The retrial ended in a mistrial after Wucherer mistakenly said that this was Fischer’s second offense.

Third Time’s the Charm

Late last month, eight long years after he was charged with driving under the influence, Fischer was in a courtroom challenging the charge for the third time. During the trial it came to light that Wucherer’s testimony was nothing more than a recitation of his police report.

Although officers can review reports to refresh their memory of a case, Judge Neal Nettesheim struck the officer’s testimony from the record. Judge Nettesheim said that if he allowed the testimony to be taken into consideration, it would have been unfair to the defense, because a report cannot be cross-examined.

Judge Nettesheim asked Wucherer how much of the incident he could remember without referencing his notes. Officer Wucherer said his memory of the traffic stop was “very limited.”

Judge Nettesheim lauded Wucherer for his honesty, and he granted the defense’s request for an acquittal.

Adam Gerol, who prosecuted the case, said the ruling sets a dangerous precedent.

“If this record standing alone says (Wucherer’s memory) can’t be adequately refreshed, then very few cases that are this old or older could ever be,” Gerol said.

Avery Appelman comments

As we’ve referenced in previous blogs, it is to your benefit to remain as non-memorable as possible during your encounter with the police. Officers of the law need to be able to reference specific parts of the incident without aid, so the less-memorable you are, the less likely the officer will be able to remember correctly. If the officer slips up, you’ll have a much better chance at beating the charges against you.

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Avery Appelman is a criminal defense lawyer and the founder of Appelman Law Firm. While his practice is primarily recognized for its work with DWI and related offenses, he has 16 years of experience working with clients on drug, assault, theft, traffic, criminal sexual conduct, and prostitution charges.

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