Shorter v. Commonwealth – When your passenger testifies that you were not DUI because you were not even driving, make sure your witness does a good job on the stand.
In this DUI accident case, a witness heard a loud “bang” and saw an accident scene. He saw five people leave the crashed vehicle and saw the defendant lying in the front seat, under the steering wheel. A defense witness testified that she was a passenger and that the defendant was not driving.
The Court held that there was circumstantial evidence proving that the defendant was the driver. First, he was in the front seat under the steering wheel soon after the accident. Second, he fled the scene before the police arrived. Third, the trial judge did not believe the witness.
If possible, the defendant in this case should have called other passengers of his car to testify that he was not the driver.
It should be noted that one judge filed a concurring opinion. He wrote that he would have dismissed the case without even getting to the merits because Shorter failed to object to the sufficiency of the evidence at trial, preserving the appealable issue. This lesson should not be lost. Make sure you object timely and properly preserve your objections. In this case, the appeal was filed using a Statement of Facts and not a trial transcript. Never, never, never go to trial on a DUI in Circuit Court without hiring a court reporter to make a transcript. It is too easy to fall into a procedural default trap when you have to cobble together a Statement of Facts after the trial.