Last year my life was forever changed. I was arrested for DUI as I was driving home from a beer festival. As a long-time beer blogger and advocate of knowing when to say when, this was devastating. Over the next few weeks, I will be telling my story in hopes that my experience will resonate with my readers and deter them from taking any chances when their ability to drive after having a few beers may be impaired.
To read this series from the beginning, click here.
We parked, found our umbrellas and walked to the front of the opposing justice building as the rain slowed to a light mist. We mounted the steps and entered the towering, echo-filled entry and advanced to the metal detectors. Our umbrellas were inspected as they rode through the x-ray machine on a belt already wet from previous umbrellas. We passed through the inspection and proceeded to the courtroom.
Walking down the long, marble-floored hall to the courtroom produced more echoes and, perhaps worse, stares from those sitting on the benches that line the walls. Some were potential jurors awaiting jury selection, others were plaintiffs awaiting justice and still others were defendants like me, reluctantly appearing to learn their fate.
When we reached the end of the hall we entered the courtroom and I approached the table in front of the gallery to my right. My lawyer, Gary Shumard was already there with his laptop set up and a box of materials. As I walked the last few feet he turned and greeted me cheerily.
“We got this,” he said as he shook my hand.
Within minutes, the judge arrived and the trial began. The jury – four women and two men – was sworn in and instructed as to the importance of their duty and that they should listen only to the facts and not to any hearsay introduced by either the state or the defense. They were told that they would hear from a number of witnesses including several police officers. They were instructed that they were not to rely on emotional responses to make their decision, but only the facts.
The jury instruction complete, the judge turned to the Assistant District Attorney that had been assigned the case by the state.
“You may proceed with your opening remarks,” he said.
The stood and walked to a podium placed near the jury. He was the picture of professionalism, tall with dark, perfectly styled hair in an expensive, perfectly pressed navy blue pin-striped suit. His demeanor was one of total control and it was apparent he was extremely confident. He took a few moments to arrange his papers before looking up and pausing for effect.
“Marc Wisdom, the defendant, is known around Jacksonville as the Jax Beer Guy. He writes about beer on a local blog and is known as an expert on the subject,” he began. “On the night of May 16, 2014, he attended a beer festival, enjoyed some drinks and then got behind the wheel of his truck to drive home. He would later be tested on an intoxilizer and found to have a blood alcohol level above the legal limit of .08.”
The ADA wove a tail of irresponsibility, failed field sobriety tests and observed drunken behavior. He told the jury that more than one police officer described me as having blood-shot, watery eyes a distinct slur in my voice and a stagger when trying to walk. He told of how I slammed in to the rear end of a police cruiser causing injury to the officer inside. He painted a convincing picture of imprudence and promised to prove his statements over the course of the day. He closed by stating that the only possible verdict that could be returned was one of guilty.
As the ADA returned to his seat, my attorney rose and walked towards the podium.
“Good morning ladies and gentleman,” Shumard began. “The state makes a convincing argument about the defendant and much of it we do not dispute. Mr. Wisdom is known as The Beer Guy, he did go to a beer festival on May 16 last year and, unfortunately, he did have an accident with a police vehicle. But, what the state did not tell you is that it took more than three hours for the Sheriff’s Department to test his blood alcohol level, he was asked to perform field sobriety tests that are not recommended for persons more than 50 pounds over-weight and that his demeanor was of a person who is alert and aware of his surroundings, not of a person under the influence. During the course of this trial, you will learn more of the facts that the prosecution has left out and understand why, at the time of the accident, Mr. Wisdom was not under the influence of alcohol.”
Over the course of the next eight hours witnesses – all police officers – were brought forward to testify about the events of the evening. After each was called and sworn in the prosecution began his questioning.
“Officer, do you recall the events of May 16, 2014?” he asked.
Each officer answered yes.
“Is the person arrested that evening here in court today?”
Again, each answered yes followed by each pointing to me sitting with my lawyer.
“Did you interact with Mr. Wisdom at the scene of the arrest?” the ADA asked each officer.
Yet again, each answered yes.
“Could you describe how he looked?” the ADA queried.
Each officer answered exactly the same way as they are taught to respond. Each said: “Mr. Wisdom appeared to have blood-shot watery eyes, a slur to his speech and staggered when he walked. There was also the distinct odor of alcohol around him.”
When the officer who was in the car I had run into was on the stand, the ADA asked about is injuries.
“Officer, were you injured in the collision caused by Mr. Wisdom?”
“Yes,” the officer said as he looked gravely at the jury. “I called in the accident, but remained in my vehicle because I had pain in my back.”
“Did rescue come to the scene?” the ADA inquired.
“Yes, I was taken to the hospital and treated for an injury to my back,” he said.
“Did you have any lasting pain from the injury?”
“Yes, I had to take Tylenol for pain for a month,” the officer said seriously.
As the ADA finished with each officer, my attorney stood to cross-examine.
“Officer,” Shumard began. “Where you aware that Mr. Wisdom wears contact lenses?”
Each answered no even though it is plainly noted on my driver’s license that I must wear glasses or contact lenses to drive.
“Could anything else have caused Mr. Wisdom’s eye to be watery and bloodshot? Crying perhaps?” Shumard asked.
Each conceded that that could have caused my red eyes.
When the officer that conducted the field sobriety test was on the stand, Shumard questioned him regarding the reliability of the tests he performed. In particular the heel-to-toe test and the balance-on-one-foot test. Both of these tests are not recommended and considered inconclusive for testing the sobriety of persons more than 50 pound over weight.
“Did you ask Mr. Wisdom his weight before you began your tests?” my lawyer asked.
“Yes,” the officer replied. “He said he weighed about 280-pounds.”
“For a person his height,” Shumard probed. “Would you say that that is more than 50 pounds overweight?”
“I don’t know,” the officer said as he shifted in his chair. “I am not an expert on obesity.”
“Would it surprise you to know that for a person his height, he is considered to be approximately 100 pounds overweight?”
“I guess,” the officer replied.
Throughout my lawyer’s questioning, he played the video recorded by the testing officer asking questions regarding procedure as the recording played. The video showed that I was lucid and responsive, I did not appear to sway – indeed, the officer was swaying more than I was – even though the official report indicated that I was swaying considerably. It showed that I followed commands, answered questions and cooperated fully. It also showed the officer asking me to perform the inappropriate tests after I had told him that I had poor balance and arthritis in my hips and knees.
In all, more than six officers were called and questioned in front of the jury. By the time all of the officers had been heard, the trial was entering its sixth hour not including an hour and a half for lunch. During this time I was furiously taking notes to give to my lawyer. Much of the accounts given by the police officers did not ring true with my recollections and on more than one occasion, the story was vastly different than what actually happened.
I want to make it clear at this point that I am a believer and a supporter in the police. I have the utmost respect for them and the job they do. But, some of their words were simply not true. I choose to believe that some of these statements are attributable to the amount of time that had passed since the actual incident and not to blatant misstating of the facts.
Finally, after all the officers had been dismissed, the prosecution rested and it was my turn to present my side of the story with the help of my lawyer.
“Your Honor,” Shumard began. “The defense has only one witness to call and it is Mr. Wisdom himself.”
The judge looked at me.
“Mr. Wisdom, you are aware that you are not required to testify and that it is the responsibility of the state to prove you guilty, not your responsibility to prove yourself innocent.”
“Yes, Your Honor,” I said. “I am aware of this.”
“Proceed,” he said from the bench.
As I stood and walked from my seat at the defense desk I walked past the jury. I looked at them and smiled though I was a nervous mess inside. I knew I was innocent, I knew that my blood alcohol level was not over the limit at the time of the accident. I knew that the accident was not due to inebriation but to the confusing lights on Bay Street in downtown Jacksonville – a point that two of the officers agreed with when asked by my lawyer. But, still I was nervous.
My lawyer began by asking me to describe my blog and my duties as a writer for a monthly magazine in Jacksonville. He then asked me to describe the beer festival I had attended and my duties there. I told him that as The Beer Guy and lead beer writer for the magazine that sponsored the festival, I was responsible for talking with the beer vendors, answering questions for the VIP and spreading good-will about craft beer and craft beer culture. I also talked about how it was not unusual for me to stop at a booth and fill in for someone who was pouring beer while they took a break. I also talked about my efforts to educate my readers on the dangers of drinking and driving.
We talked about the period of time immediately before and after the accident. About how I had seen green lights ahead of me when my phone rang and I looked down to pick it up. And we discussed how in that split second I saw the red light and the police car in front of me. I told of how I called my wife immediately and became extremely distraught and even cried.
I was also asked to recount how much I had had to drink that night and when I drank. I told them that most of the beer I drank that night came at the end, after my duties had been fulfilled and things were winding down. My lawyer asked if I had eaten anything during the evening as well and I replied that I had had several slices of pizza earlier in the evening and multiple samples of food from our vendors the rest of the evening.
“I have no more questions,” my lawyer announced and he turned to sit down.
As the state’s attorney rose and walked to the podium, I steeled myself for his questions. He asked me to clarify how many drinks I had had that evening and I said I did not know exactly. He asked how I could explain my red, blood-shot eyes and I told him I had been crying and that I wore contact lenses. He asked about my inability to perform several of the field sobriety tests and I reminded him that they were not fair tests for a man my size and that I specifically told the officer – and it was heard on the video – that I had poor balance and arthritis in my knees and hips. He even asked me if I was too drunk to drive. To which I replied I did not think so and would not have driven if I had thought I was. I would have called my wife who was merely a mile and a half away and asked her to pick me up.
“Mr. Wisdom, do you have an excuse for everything the officers said against you?” the ADA asked in a voice full of venom.
“Everything happens to be true,” I replied evenly.
At that, the ADA released me and a recess was called to prepare for closing comments. It was already 4:45 p.m. and the stress of the day was beginning to take its toll on me. It was down to the wire and from what I had gleaned in the courtroom the case was teetering and could go either way. My lawyer however, was much more confident and was sure the video and my earnest responses on the stand had won the jury over. Further, the crux of the case had not been proven by the state: they had not shown beyond a reasonable doubt that I was under the influence of alcohol at the time of the accident. Only that I had blown over the limit three hours after the accident.
Closing remarks went very much like the opening comments. The prosecution tried to discredit me and my testimony while my lawyer quietly presented the evidence that I was not drunk at the time of the accident and therefor could not be found guilty of driving under the influence.
When closing comments were done the judge gave the jury their final instructions and excused them to deliberate. I looked at my watch and it was exactly 6:00 p.m.
My brother-in-law, who had stayed the entire day to provide moral support, and I stepped out to the now deserted hall and sat on a bench. The storms of earlier in the day had cleared, but because it was February, it was already dark outside. I stared out the window trying to play the trial over in my head.
Had my lawyer presented a strong enough case in my favor? Had the ADA proven my guilt? I was pretty sure my lawyer had done a good job of injecting doubt in the testimony of the police officers and pulled the truth from me while I was on the stand. But, as is human nature is situations such as this, I was unsure.
“Man,” my brother-in-law said, breaking my destructive train of thought. “If I ever need a lawyer down here, I am getting your guy. He was awesome!”
“Yeah,” I responded. “He is young and hungry and knew our case was strong. Now we just have to wait.”
No sooner had those words left my mouth when the bailiff opened the courtroom door and announced, “We have a verdict.”
We quickly went back into the courtroom and stood as the jury filed back in. The bailiff took a slip of paper from the jury foreperson and gave it to the judge.
“Madam foreperson, has the jury reached a verdict?” the judge asked.
“We have Your Honor,” she replied.
“In the matter of the charge of Driving Under the Influence of Alcohol, a chemical substance or controlled substance against the defendant, Marc Wisdom, how do you find?”
“We the jury find the defendant, Marc Wisdom, not guilty.”
We won.
All charges against me were dropped and I was restored to eligible driver status. The stigma of the DUI had been washed from me in two simple words. But, in reality, it was not. For the rest of my life I will carry the pox of having been arrested and charged with DUI.
Still, I was lucky. I knew myself enough to be sure I was not drunk when I drove. Sure enough that I did not want to take a plea, pay my fines, do some community service and be done with it. But, others may not be so lucky. Others may not have the resources to fight this fight. In all the arrest and court battle cost me nearly $10,000. To me it was worth it to be vindicated.
The point of telling this story was to illustrate how easily things can go wrong when you have been drinking. In our current system, it takes just two drinks per hour to be considered impaired. I urge you to keep that in mind the next time you go out for a drink. Always have a plan for getting home. There are many choices from Uber to a taxi or even a friend.
It really comes down to one thing; if you are drinking, do not drive!
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