A Drunkard's Dream
Bob Bettenberg's stories--and there are a lot of them--have the tempo and anticipation of a joke building toward a punchline, the sentences clipped and the narrative always in the present tense: "Guy walks into a bar..." Except in Bettenberg's case, that is how the stories actually begin, and they are true.
In fact, it has been to his great advantage and financial security that guys are always walking into bars, indulging maybe a little more than they should--although, until proven in a court of law, that is a highly debatable and not entirely salient fact--walking out, slipping into their cars, pointing the grille between the yellow lines to the best of their abilities and getting busted.
Sterling, Colorado. Guy walks into a bar. Walks out, gets arrested for driving drunk. His blood alcohol level is about 2.6, more than double the amount necessary to convict someone of driving under the influence--DUI.
"But," points out Bettenberg, "the law says BAL analysis must be tested within ten days of the draw. This one comes back in fifteen. You talk about walking into a gold mine. It was a beautiful case. Beautiful."
The test's administrator is called to the stand. She tries to explain. She relates how difficult it was to get an accurate reading. She is sympathetic.
The first reading we did was zero, she says, but that couldn't have been right, because the guy was drunk.
She is dead meat!
"And so the guy got off," concludes Bettenberg gleefully. "And he was a second offender!
"That doesn't mean he wasn't guilty," he adds, soberly. "Because he was."
Bettenberg is, in these times of temperance, an anachronism--an insurgent in the war against drunk driving, a long-distance swimmer fighting a tide of outrage toward the intoxicated, a "Thin Man" in the age of Ken Starr. Put another way, he is one of a shrinking number of attorneys who exclusively defend drivers accused of piloting their vehicles while under the influence of booze, an unforgivable violation of safety, judgment, common decency and Colorado Revised Statute 42-4-1301.
Last year, 36,726 people were charged with drunk driving in Colorado. The number of lawyers willing to regularly handle such unpopular causes is small--probably less than a dozen in the Denver area--so Bettenberg is busy. He juggles up to 200 DUI cases a year, by his own estimate, covering ground from the Western Slope to the Eastern Plains. One week a short time ago, he had six cases going in different jurisdictions across the state. He got them all off. He made it look easy, but it wasn't.
"DUI is the hardest case to try," he says. "Period. You go in there and you always look like a schmuck. I mean, you're a drunk, right? With a rape case, you'll get a fair trial. The jury is thinking: 'This isn't going to happen to my daughter--it happens to other people.' But you start talking about a DUI, and they don't want to let you go. They're thinkin', 'You could hurt me some Saturday night.' They don't want you out."
"The worst thing that can happen is a drunk-driver crash the day before you go to trial," he sighs. "When Princess Di was killed--oh, that was bad. It seemed Dodi had a load on every time he got into the car. But I got lucky; by sheer luck, two trials I had scheduled for that week were postponed."
In fact, to a busy DUI lawyer, it can seem like no one is on your side. "These days most judges are former prosecutors," Bettenberg explains. "So not only do you have to fight lawyers and juries--and sometimes, your own clients--now you got judges against you. They're afraid mad mothers will come into their courtrooms. The political pressure is unbelievable."
Still, despite the low popularity of the profession, Bettenberg has made it his business to overcome the stacked odds. And most people who have met him in a courtroom would agree that, more often than not, he does.
"I have been up against many, many attorneys," says Cindy Grien, a Northglenn cop who, until being promoted recently to detective, worked on DUI cases. "But nothing is so scary as going up against Bob."
"Everyone is defensible," he says. "There is no case you can't win." Some are more personal than others.
Federal Heights, 1982. Guy goes into bar. Likes it so much he buys one of his own. Quits his professional job, begins working there.
Next thing, Bob Bettenberg finds himself drinking up the profits. He's gotta get home somehow, too, so naturally, some drunk driving is involved.
"Oh! See that box!"
The square, softball-sized cardboard package perched on his receptionist's desk gives Bettenberg the tingles. "It's the collectibles coming! But I don't wanna open it yet. I'm too excited!" He is short, rumpled and can swear like a mobster, so together the words and the picture are jarring. Think Joe Pesci getting worked up over Barbies.
The package could contain any number of things ready for display, mounting or cataloguing. Perhaps a new Beanie Baby or more stamps or coins. Possibly an addition to his sprawling baseball-card collection. It could be some sports paraphernalia. If so, it will have to struggle for attention; Bettenberg's Westminster office already looks like ESPN's SportsCenter as envisioned by Hummel or the Franklin Mint.
There are the multi-colored golf balls with the National Football League team logos displayed on their own wooden wall rack and ceramic figurines wielding golf clubs; the framed collection of NFL belt buckles and, nearby on the same wall, the framed display of Colorado Avalanche tickets from the hockey team's 1996 appearance in the Stanley Cup finals.
Bettenberg is not just a bustling collector; he is also a frantic fan, so the choice of which team memorabilia to display is random. His walls could be decorated with souvenirs from the Avalanche, the Rockies, the Nuggets, the Broncos, the University of Colorado Buffaloes football team or the Lady Buffs basketball squad. He holds season tickets to all.
He loves sports. Yet there is a method to the frenzied clutter. "Gotta stay busy," he explains. "It keeps me outta the bars." It's a throwaway line, but it's taken some time to be one he could laugh at.
Bettenberg grew up the near side of poor in a small town in Minnesota. His father was a housepainter and his mother worked in a store. After attending a small local college, he was offered a scholarship to the University of Denver law school. He'd worked summers for a moving company, a job that had brought him to Colorado; he liked the state and decided to accept the scholarship. After Bettenberg passed the bar in 1971, he stuck around. His first case, which he handled out of an office in his house, was a workers' comp claim for John Denver's brother.
Bettenberg started out as a general practitioner, taking any and all cases. But by 1982, burned out and looking for a change, he decided it was time to try his hand at a new line of work. So he and two partners bought a bar in Federal Heights called Chappy's.
He remembers it as "a wild place, packed all the time, kind of a precursor to all the sports bars you see now--Hooters, places like that. We had it all: women in short pants, everything." He and his buddies fashioned it into a Vikings bar, drawing Minnesota football fans from across the state.
For the first year, Bettenberg worked at the place himself, sometimes managing, sometimes behind the counter pouring drinks. The experience led him to two conclusions. First was that, generally speaking, most people who drink are losers. "When I got into the biz, it really turned my eye," he recalls. "Alcohol drags everybody down."
The second thing was that now that he'd gotten to know the enemy, he recognized it as himself. "It slips up on you," he explains. "You think, 'I'll just stop for happy hour.' And then, somehow, you're there until eight o'clock every night. The natural progression of the disease is that it gets worse and worse--it never gets better, at least as long as you're drinking. It's real sneaky.
"I would go on the wagon for six months at a time. But the thing is, I had to drink as much after six months to get the same effect as before I'd quit. You build up a tolerance."
He'd handled a few DUI cases before buying the bar, so he drew on his understanding of the law, knowing what would impress a cop, what wouldn't. At the end of the night, he'd perform roadside sobriety tests on himself in the bar. If he did tolerably well, he would leave for home. "It was like, 'Okay, I passed. Gimme an onion. I'm outta here.'"
Problem was, if he didn't do tolerably well, he'd still leave. "Have I ever driven drunk? Yeah. Oh, yeah. Of course. Are you kidding? Oh, yeah."
The Day came thirteen years ago. He'd been in Las Vegas gambling and, because it was so simple, drinking--and drinking hard. "Everything there promotes it," he says. "You don't have to drive, all the drinks are cheap, or free." He'd had taken advantage, and now he was on the plane home, continuing the party.
"I remember getting on and ordering a beer," he says, "and saying, 'You know, that's it. I'm done with that shit.'" He didn't finish the beer, and he hasn't taken a drink since.
When he returned to law, Bettenberg began picking up more and more DUI cases until that was all he had. He has chosen to represent the driving drunk because it makes good business sense, but also because he is not naive. "There's nobody I won't represent as long as they take responsibility for their actions," he says. "So don't come in here and tell me you're innocent. That's bullshit. I don't want to hear that, and if I do, I'll kick your ass."
Some of his clients he directs to treatment programs; others he's let take the fall. In a case earlier this year, he had the defense pegged, an easy score, a quick dismissal. But the defendant was a kid and needed to see that he had made a mistake. "If he was an adult, I would have had this case flushed," he says. "But I know his dad, and we agreed he needed to be taught a lesson."
"I'm not for alcohol," he adds. "I think it's destructive. It's as destructive as any illegal drug that exists. But it's not against the law to drink in this state, and it's not against the law to drink and drive in this state.
"If the cops and prosecutors don't violate a person's constitutional rights, they're gonna win. They got the evidence, they got the law, they got the public sentiment. So do it right. Don't do it shitty. If the ends always justify the means, then let's get rid of the Constitution, and if we don't want people to drink, let's return to Prohibition. But don't come in with bullshit cases against DUI.
"Should people drink and drive? Absolutely not. And with my clients, I always presume that they've had too much. But I don't get into that."
Bettenberg's day begins at 3 a.m. He pulls himself out of bed and begins working on cases. By 8:30 he's in court, where he generally can be found until 4 p.m., when he returns to the office for appointments. Then, he says, "at six I stop off at the daycare, and my other job begins," he says.
She was nine months old when her mother, Bettenberg's third wife, discovered crack cocaine in the Broncos parking lot before a game. He had met her at his health club; she was a looker, a fit woman who'd had her problems with coke but had put it behind her. Crack was a different drug, though, and a different story.
His cars started disappearing--the cops would call to tell him which impound lot he could find them in--and his credit cards showed up in strangers' hands, maxed out on items he didn't recognize. He began sleeping with a gun under his pillow; he didn't know the men who showed up pounding on the front door in the middle of the night.
He tried to help. He admitted her to a half-dozen drug treatment programs in the area--West Pines, Arapahoe House, others--and he made sure to bring their daughter when he went to visit her. But she seemed intent on escaping from each treatment center, and she'd always end up in the same place, scoring more crack, stealing more money.
"With crack," he says, "you gotta batten down the hatches. Don't believe a word they say." They finally divorced; she is now in Canon City, serving a sentence whose length he chooses not to remember, only that it's long and that he's glad.
His daughter is four years old. They don't visit her mother anymore. They read Beanie Baby books together at night. She goes to bed around nine, and he finishes his work.
Guy walks out of a bar, gets in his car, Arapahoe County. Is stopped by the police. Pisses his pants--maybe because he's drunk, who knows? He asks the cops to let him change before he gets the drunk-driving routine. They refuse.
As the roadside situation unspools, the cops conclude the guy is too drunk to even attempt the standard roadside tests. So they give him an analysis that measures eye movement to determine if he is intoxicated.
At trial, Bettenberg points out that 3 percent of the general population has an eye condition that could lead to a false-positive on the drunken-eye test, and--guess what?--his guy is one of them. Also highlights the way the cops wouldn't...even...let...my...guy...take...a...leak.
Was the guy drunk?
"When a client comes in, the first thing you presume is that the cops are lying," he says. "The second is that your client is lying. Then you go on from there."
DUIs are a complex dance of gamesmanship between cops, prosecutors, lawyers and drivers. It is a matter of missteps and "gotchas" on both sides. The cops need a legitimate reason to stop a driver and check his breath. Weaving works, but speeding doesn't--usually. Sobriety tests are voluntary--but if you refuse, you will get your license revoked for a longer period than if you agree to take one. And if you ask to speak to your attorney first, that is taken as a refusal.
So everybody cultivates their own tricks. Cops who know you are drunk and need probable cause won't give up simply because you refuse a roadside. You can still be ordered to step out of your car--to ensure the officer's safety, of course--and walk to the side of the road. If you happen to stumble or weave in the process, there's the probable cause.
"It's a bowl of spaghetti," admits Gary Pirosko, who for the past seventeen years has worked the game from every angle, first as a DUI cop, then as a county prosecutor and now as a defense attorney. Adds Grien, the Northglenn cop, "You cannot believe the amount of detail that goes into a DUI case."
And because the defense is in the details, Bettenberg has developed a method. It begins with a seventy-question worksheet designed to tug every possible piece of information from the client. They range from the obvious --"What were the weather conditions?"--to the unexpected: "Do you recall belching or burping? When, in relation to the giving of the chemical test, did you belch or burp? Were there any witnesses to the belching or burping?"
Next he composes a five- to six-page purple fact sheet that "nails every loophole in the system," he says. "Here's one."
Guy is pulled over for speeding and subsequently charged with DUI. According to the police report, his "speed is estimated to be 40 to 45 miles per hour."
"What the hell does that mean--'estimated?''" Bettenberg scoffs.
Might turn out to be worthwhile, but the next fact yields a solid handhold. "He was stopped in Cherry Creek State Park," he says. "Please. These guys are state park cops. They're seasonal. Try to get 'em back in court to testify six months from now and you'll never find 'em."
Move on. In his report, the cop says the driver's speech was not slurred. Bettenberg lifts his eyebrows, feigns surprise, begins an imaginary examination: "Not slurred? Why, how, then, could you tell he was drunk, officer?"
Next, the defendant has recalled that, initially, he declined to do the roadside balance tests. ("I call them the roadside gymnastics," says Bettenberg. "By and large, they are meaningless. I asked a cop to do one once in court and he banged into my table. 'Are you drunk?' No. End of case.") But the cop has told him that if he refuses, he's going to be arrested. Bettenberg is indignant. "How the hell is that voluntary if you're going to be arrested if you decline?"
The driver also refused a breath test. Bettenberg furrows his brow and becomes Pensive Socratic Lawyer, taking on both roles:
"Well, officer, he did pretty good on his roadsides, wouldn't you say?"
"Yeah, pretty good."
"So you wanted him to do the breath test to see if you had probable cause, right?"
"Yeah, that's right."
"So why the hell did you arrest him if you didn't already have probable cause?"
As he goes through the rest of the fact sheet, you begin to feel for the cops--not because they need your sympathy, but because it begins to seem that successfully stopping and nailing a drunk driver is an impossible thicket of details and complications that no one could get right.
Bettenberg continues reading through his ruthless worksheet. The police must wait and observe you for twenty minutes (but no longer than two hours) before administering chemical tests. Did they?
Who's running the BAL machine? The operator has to be certified by the state health department every three months. Was he?
"About a year ago I have this case where the operator's certification test appears to be the same day as my guy's offense," recalls Bettenberg. "I say, ah-hah! I get the log records of that shift. Then I subpoena the operator and the instructor who supposedly gave him the test. I say, 'I see you were recertified on the day of so-and-so's test.' I ask him all about his test, which he tells me about. Then I show him the log book that says he wasn't there." End of case.
What about the date the breath machine was put into service? By which officer? "Because he's gotta appear at the hearing," Bettenberg explains. "If he doesn't show, there's no test. They gotta lay the foundation."
How about the machine's serial number? "Sometimes it's a loaner," he says. "And if they don't have the proper records, it's gone.
"End of case."
"They should win every time," he says. "And there are times where I'll just come into a hearing and drop my folder on the table and say, 'You got me.'"
But, says Grien, "if he finds something in his checklist that we've overlooked or haven't covered, he's going to nail us. Every time I go against him, I learn something. It's not that I enjoy losing to him--I don't. But I find it thoroughly enjoyable to beat him, because if I do, I know that I've had to put up a hell of a case."
"I'm a firm believer that if the cops come in with a good case, they should be rewarded," Bettenberg says. "And if not, they should get it stuffed up their ass."
That is the goal when, just before midnight late last week, he and a client are standing on the side of South Buckley Road with a video camera. A few months back the guy was stopped at about the same time and charged with DUI when he passed through a speed trap here. The cop behind the radar gun recalls pointing it at a black car, which thrilled Bettenberg at the hearing. He recalls the exchange:
"I ask, 'Are you sure it was black?'"
It was black when I aimed the radar gun between the lights, and it was black when it drove past me, and it was black when I pulled him over, the cop replies.
"Then how come," Bettenberg wonders, laying down his full house, "the ticket says 'light blue?'"
End of case--in theory. But the judge was unsympathetic. The car could have looked black that late at night, he decides, allowing the stop to stand. Now Bettenberg is out to show just how wrong he is.
"I think they pulled over the wrong car," he says. "Just because you're running speed guns and got a chase cop, you still gotta pull over the right guy. And if they did pull over the wrong guy, then there's no stop. They throw the case out."
Bettenberg is getting worked up. "You think if it was a speeding ticket the cops would win? You gunned a black car speeding and I drive a blue car? BOOM! End of case. But this is a DUI."
A few weeks ago, another case made its way to his desk. "My guy is stopped because he's in a 'suspicious vehicle,'" he begins. Eventually the guy is charged with driving under the influence.
"I've heard of suspicious people, or even suspicious circumstances," says Bettenberg, already rehearsing his defense. "But a suspicious vehicle? He was on the side of the road reading a map!"
Constitutionally, the circumstances are appalling.
They are tantalizing!
But was he drunk?
"I don't know," Bettenberg says sincerely. "It hasn't gone to trial yet.
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