Episode 6: Stephen Pfeiffer

Podcast Transcript Of Virginia Beach Criminal Defense Attorneys Taite Westendorf & Bassel Khalaf Discussing Virginia DUI Law With Stephen Pfeiffer

Bassel Khalaf:
Welcome to WK Pod, home of the never ending podstable where we discuss legal issues. Some of our guests are attorneys, some are not. Do not take anything on this podcast as legal advice. If you have questions about a legal issue, get your own attorney. Peace!
Hello, hello, we have a very special guest. I say that for all our guests. But this one is actually very special because we're talking about DUIs. 

Taite Westendorf:
Only our second guest, but we get the best guests. 

Bassel Khalaf:
All two of our guests have gotten the it's a very special guest. And this is no exception because it's Stephen Pfeiffer. He is the premier guy for DUIs in Virginia Beach. He's a defense attorney. He's been doing it a long time. I can't really think of anybody at this point in the game who does more DUIs on a regular basis than Stephen Pfeiffer. So he does good work. A lot of people listening are attorneys who already know what a DUI is. It's kind of an interesting crime because it kind of describes itself in its name, you're driving under the influence. So when you break that down, you got to talk about what does driving mean and you actually have to be driving what does under the influence mean. And then I guess there's a couple little nuances beyond that. But, you know, we'll we'll get into the nitty gritty of just the law in general and then talk a little bit about Stephen Pfeiffer's backgrounds and what he's been up to. And Taite's got some ultra cool things to say. I don't know what they are, but they better not be fucking lame. 

Taite Westendorf:
As always, nothing but ultra cool on my end.

Bassel Khalaf:
Well, let's start it off with this, driving under the influence. Clearly for Virginia Beach, it's a pretty uniquely important law because it's a tourist economy and tourist town. People go out, they try to wild out and have a good time. And you're sort of balancing letting people live with preventing people from dying via DUIs. So that's always important. Virginia Beach Police, I don't have too many horrible things to say about them. I think for the most part, they do a good job. And if I was gonna say they're good at one thing, it's going to be DUIs. They're definitely, typically well trained on DUIs. 

Taite Westendorf:
Are we ever gonna let our guest take the mic? 

Bassel Khalaf:
Nah, I think I'm just gonna keep fucking going. Alright, so Steve, just, if you want to break it down, then what's a DUI? Do you know what a DUI is? 

Stephen Pfeiffer:
I'm starting to learn a little bit about this now. Now, first of all, let me just digress here and let you know that I am a huge fan of the show. As you guys know, I listen to all your podcasts. I love the way you make the law fun for lawyers and non lawyers alike. So for what it's worth, keep it up. Thanks for letting me come here and crash your show. And thank you for indulging me in a nice glass of scotch as well, I appreciate it. So a DUI, I will agree Virginia Beach is the preeminent place to get a DUI. We have a highly trained police force and a highly trained Commonwealth attorney's office that focuses in on DUI prevention, and enforcement. As you guys know, they're probably the best trained in the state literally. Virginia Beach Police officers in DUI, which makes our job very, very freakin difficult. But we go through and knock it out. A DUI is simply operating a vehicle while impaired. So you guys talked about elements to crimes. So a DUI is simply five elements really. It's a person operates a vehicle in Virginia Beach impaired. Those are the five elements. The government has to prove those five elements. And there's some crazy case law. You guys are aware I'm sure about each of those elements like operation is...insane the way we've read operation. 

Bassel Khalaf:
Yeah, let's focus on that one then. So you say driving under the influence. They're some people who might be listening who think, Alright, sweet, if I just sleep in my car, and I'm drunk, and I just got the AC on, I'm good. But as you know, that's not really the case. Just if you don't mind spitting a little bit of the real on what operation is and what it also isn't. 

Stephen Pfeiffer:
Yeah, and this is a great education people because I have so many clients like dude, I was asleep in my car, my wife and I got in a fight, I'm out in the car, I slept it off. I was drinking, I don't want to get in trouble. I turned the car on because I was cold. Sorry, dude, that's operation. So Virginia has read the statute for DUI for the definition of operation, and the Virginia courts have interpreted what that means. And being a very conservative state, and we read it very, very conservatively in favor of the Commonwealth. At this point, the current state of laws I'm aware of is that you are operating a motor vehicle if you are sitting in the front seat. So sit in the front seat and your car is on or it's in AC mode. It's turned into that or let's you got a push start. 

Taite Westendorf:
Right, like my sweet Odyssey. 

Stephen Pfeiffer:
Yes, you've got the sweet Odyssey I saw in the parking lot today? 

Taite Westendorf:
I've got three car seats up in there.

Stephen Pfeiffer:
You are the next candidate for the Odyssey commercial with the Panther and the 80s music in the background. 

Taite Westendorf:
Absolutely. In fact,  we don't have advertisers but I'm going to put a plug in for the Honda Odyssey. Phenomenal vehicle. You've got a family? It can't be beat for the road trips. Honda Odyssey. Honda give us that loot. 

Bassel Khalaf:
This episode is completely brought to you by Honda Odyssey and we fucking hate their competitors. You will definitely get a DUI in any vehicle that's not a Honda Odyssey. 
But for real that's an issue that comes up because I know there's the case law that talks about, what was it, Enriquez, is that the one where you've got the keys in the ignition is enough, even if the engine's not running. So what about a push start? Your keys are in your pocket. 

Stephen Pfeiffer:
So this is crazy. I had the privilege of doing one of the first push start cases as far as I'm aware in Virginia and it happened in Virginia Beach, surprise, surprise. And it went up to the circuit court and the then Chief Judge heard it. It was a novel issue. What was going on because my guy is in the passenger seat at this point in time, there is an argument whether or not he climbed into the passenger seat, but he's in the passenger seat when the police find him. And the key fob is on the floor on the passenger side. Cars not on right. Well, based upon the Enriquez decision, you have the ability to start the vehicle because of the push start, all you got to do is have the key close, press the button, bam. And the car yells at you if you get too far away with the keys, right? So he's sitting there, keys on the ground. The question is, was he in operation and control of that vehicle at that point in time. Luckily, in that case, the judge found that passenger's seat, keys not in the console wasn't enough to tie that. But the law now as it says is basically if your butts in the driver's seat, and that key fobs anywhere close where you have the ability to start that button. That they can interpret that as operation, which is the first element. 

Taite Westendorf:
Yeah, you definitely would know the answer to that question better than I would. But is there a Court of Appeals or Supreme Court of Virginia case on that?

Stephen Pfeiffer:
I'm pretty sure. I can't quote one sitting here with a scotch in my hand right now. But I can tell you that there is a case that defines a key, a push fob case that talks about having the ability to physically control, and it talks about being in the driver's seat, and having the push start close to you, and being able to start the car. So what I advise people now, I have the privilege of speaking to a lot of military folks and special operators and people in the area. And I talked to them about what not to do. And one thing I tell them is with push start vehicles. Now, if you get in a fight with a family member, and you want to go sleep it off, or you're out but you're not going to drive, you're making the good decision not to drive. You get in the backseat of your car, and you make sure those key fobs are in the front or locked in your trunk or away from you. Don't let your butt touch that driver's seat, because there is an argument to be had at that moment in time you meet the first element of operation for DUI. 

Bassel Khalaf:
So I kind of forget exactly what the name of the case was. I used to be a lot better at reciting cases off the top of my head when I was a public defender. But there's one. It's like, if you're sitting in the driver's seat and the keys in the ignition, and it's on the...

Taite Westendorf:
I just said the name of the case. It's Enriquez. 

Bassel Khalaf:
Yeah, I wasn't listening. I'm sorry. Nobody really listens to what you say. Anyway, but this thing about somebody might, hypothetically could be aroused from their stupor, and spring up, and they might turn the key all the way and I can drive off and kill a bunch of orphans. That to me is garbage. Because I get it, I get that the society has an interest. And we don't want people to be maybe in a position where they might do a thing, but I can't really think of other crimes where it's like, dude, you were, you were maybe going to do a thing. And you didn't do the thing yet, but we stopped you because it could have happened, you might have decided to do the horrible thing. There's a big difference between sitting in the seat and then turning the car on and driving because you just were aroused from your stupor. I'm just picturing these judges who made that case law. Sorry, no offense to whoever made the case law, but what's up? You know, that just sounds like a complete legal fiction. It's just like, not a thing. And they just decided, well, societies may be benefited by us just doing this overly cautious bit of jurisprudence, so we're gonna do it. But I don't know. It just seems weird. To me. It's almost cartoonish to think that I'm just going to be super drunk, but oh, my God, where am I? Oh, I've just been aroused from my stupor and I'm going to spin the thing. Now I'm going to drive and I'm already guilty before I've done any of that stuff. 

Stephen Pfeiffer:
So I actually call that line of thought, I call it the Minority Report. It's pre-cog, right? We're assuming that they're going to do something wrong because they have the physical ability to do the wrong. And I get the public pressure that judges, both in the Court of Appeals and Supreme Court and particularly on our General District Court and Circuit Court benches get when it comes to a topic like drunk driving. I mean, Mothers Against Drunk Driving is a powerful organization and a powerful lobby and have a really good intention and purpose. But the pressures people feel as a result of this sometimes lead to laws that are not in line with common sense. And I would argue that to punish someone for the possibility of them doing something wrong, because they have the ability to start the vehicle goes too far. But that's the state of the law as it is right now. And the judges have to follow it. And unfortunately, he mentioned in previous podcasts, a judge's hands are kind of tied at that point in time, they're given no discretion. They don't have the ability to defer things on DUIs, there's no statutory mechanism. They don't have these opportunities. So I think most judges would agree that the pre-cog approach theory when it comes to operation is probably not great. But that's the status of the law right now. And that's why it's important that people vote and people talk about these things to the people who are making the laws. Because they're not going to change them, unless there's an opportunity.

Taite Westendorf:
So that brings up an interesting question, as far as what's good policy, and the appropriate role of appellate courts. This is an issue that comes up all the time. I mean, if the General Assembly wanted to write a law that said, if you're sitting in a vehicle in the front seat, even if the engines not running, that's operation, they could do that. They didn't write it. And so that's a judicially created thing. So that segues into I think a good question. You do more DUIs than anybody in this area. And this is a tough question, and I'm putting you on the spot. But what changes would you make? Are there a couple of signature changes you would make that would make DUI law fairer? 

Stephen Pfeiffer:
Sure. You know, I don't shy away from a tough question. I appreciate it. I don't believe this current status of the law when it comes to operation is the appropriate one, I do believe a person needs to have the car on turned on, in order for them to be, proven beyond a reasonable doubt that they were operating a motor vehicle. I think the idea that someone turns the AC on by keeping it in that position, or someone sitting in the front seat with the ability to start the car, it goes too far, because there's tons of logical explanations for why someone would do that. They can't assume the worst because they've been drinking, that they're going to do the worse. Drinking doesn't necessarily bring out the worst in people. I know that's the normal thought process out there. But not necessarily. It happens. It basically amplifies the feeling they're feeling at that moment in time, generally speaking, right? So I would change the definition of operation to the car was on like I can I can eat and survive. The car is not moving, but the cars turned completely on. Okay, I think that's a realistic line in the sand to draw and say car on, you're in the driver's seat, operation. 

Taite Westendorf:
Yeah. Okay,and that's a pretty easy fix, right? One added sentence to the statute. 

Stephen Pfeiffer:
That's it and it clarifies years of confusing case law. We keep just using cases to develop more and more further reaching laws. 

Bassel Khalaf:
And you can do it either as you have to be operating the vehicle with a contemporaneous intent, and it's provable. Or you can even throw some sort of catch all provision that under circumstances where somebody looks like they're not trying to fucking drive and just sleep, then they're not guilty, or there could be a lesser penalty or something. I mean, society does have some benefit to curtail the mixture of alcohol and vehicles. And I get that. 

Taite Westendorf:
Yeah, but...I'm cutting you off. But in my mind, a matter of good policy is if you have driven to a bar, or you're at a house party, and there's been a lot of drinking involved.  Good public policy, to me, would encourage that person who is approaching their car and thinking maybe I've had too much to drive, we'd rather that person taking a little siesta in their vehicle versus turning the car on and going for a spin here. 

Bassel Khalaf:
Now you're advocating for gold stars. It's like you show up to court, it's like not only are you not guilty. 

Stephen Pfeiffer:
But this goes back to what you guys have talked about in criminal justice reform before and what I think we all agree with is that the General Assembly needs to untie the judges hands. Give the judge the discretion to say, you know what, you put me in this position because you trust me to make a good decision. I'm going to weigh the person in front of me, the facts in front of me, and what I see here and what's been proven to me is that this person went to their vehicle to not get in a fight with their wife or went to their vehicle and sleep it off. There was no intention of driving. They did nothing to drive. Everything, all the facts verify they never planned on moving the vehicle. And give the judge some discretion to say all right, I'm gonna put you on a deferral. I'm going to give you a reckless driving with conditions. Untie the judges' hands. So we can actually reward the person who's trying to make a societal good decision by not driving but is still getting the same consequences of a DUI for making that decision, because they're not familiar with all these weird nuanced case law. 

Bassel Khalaf:
The legislature almost tries to write an algorithm where you spit in facts, and you spit out a result. And you don't have the human influence of a judge, like the judges just their hands get bound tighter and tighter. And it's really annoying, because there's so many cases where like, Judge, you know, I don't want to say, hey, we've all been there. But DUI is one of those where I'd venture to guess, and maybe I'm speaking out of turn here. But if I had to guess, you take all the GDC judges and all the circuit court judges, I would guess that over 50% of them have committed the crime of DUI at some point in their lives. 

Taite Westendorf:
It's a little speculative.

Stephen Pfeiffer:
I will not support your statement on that whatsoever. They're upstanding individuals who never, ever break laws. 

Bassel Khalaf:
Y'all keep it 80. I'll keep it 100. I'll say that much. But what I'm saying is, it's a crime. And I guess we can maybe segue, my I'm not going to call it faux pas because it is spitting the real but I'm going to segue that into, for your business, the DUI. A senator could get a DUI, you know, anybody could get a DUI, it's one of those where you don't have a specific demographic. Like we deal with a lot of people who deal with drugs and you've got everything from a violent drug dealer up to you know, the pizza boy who maybe sells a little weed on the side and there's this whole gradient but usually when you get the facts you kind of have some idea of here's where you know, here's where the person is gonna live. Here's where the person went, you know, all that type of stuff. 

Taite Westendorf:
Certainly, it's a broader demographic. Bottom line, lawyers, doctors, all manner of people, military, the most upstanding, respectable members of our society can get DUIs. 

Stephen Pfeiffer:
All my clients I think have heard this over the last 10 years. And I'll say it for purposes of the show. I have literally represented people who have done everything and this is no joke doctors, lawyers, politicians, rear admirals, navy seals, buddhist monks, Catholic priests. Literally, there is no demographic that has not been touched by a DUI. 

Bassel Khalaf:
That's a more palatable laundry list then me calling out the judges. So I apologize all the judges but what Steven Pfeiffer just said that's what I meant. But you know, you're also on the list. 

Taite Westendorf:
Iaquinto, we know what you're up to.

Bassel Khalaf:
He's bringing that up, facetiously cuz Iaquinto has been the premier DUI champion. 

 

Taite Westendorf:
Yes, when he was in the General Assembly, the interlock law, that was his baby. 

Stephen Pfeiffer:
Yes that was his. I will say, not to, you know, we all have a high regard for him as a judge in particular, he handles a great courtroom, he takes us seriously and he'll listen to these legal defenses very closely. And he appreciates the stuff that we've got to jump through with these hoops. 

Taite Westendorf:
And I think that's why I felt comfortable bringing up his name because he's got a great sense of humor, and he's a good dude. 

Bassel Khalaf:
Stop bringing up his name, you're making it weird. I guess that's a little side topic. But since we're all attorneys here, and our last guest was Michael Berlucchi, he's a really good dude. But he wasn't an attorney. So you're kind of speaking different languages sometimes on you know, we don't know politics all that well. But as far as a judge, and what you want to see in a judge, I mean, one of those things, is exactly what you said is that you'll listen, you know that the person is absorbing the argument, they're absorbing the counter argument, they're kind of putting those two, butting the heads of those two arguments to where they come out with the result. An analysis is always appreciated, but sometimes, I guess, you know, it's one of those. What is it was with porn, like, you know, it when you see it sort of thing. You know, sometimes you know the result, and you can't really say why, or you know why there might be some doubt. And with a lot of legal standards, it's wishy washy. How can the court be assured that you're going to show up for court, and that's not an exact science, most of this stuff isn't. So when you take these judges, you sort of elevate them to a position where you say that you are above the normal sort of human ability to just look at a thing and make a judgement on it. Maybe I just answered my own question by talking too much. But what are your thoughts on as far as when you get in front of a judge? If it's here, Chesapeake, Suffolk, wherever it might be, what are you looking for when you get in front of that judge? 

Stephen Pfeiffer:
Yeah. I think some of the best qualities for a good judge is one, they listen and they actually appear to listen. So not only are they listening, but they're showing that they're listening. It's extremely important for us as attorneys to know that we're being listened to, but it's more important for the public. I mean, 80% of the Virginia public, their only contact with the courts are going to be General District Court judges or Juvenile Court judges, right. So those judges have to listen and respect the people that are in the courtroom. Actually show an appreciation for their job, that they're actually listening to people in a Solomon-esque type approach. They're hearing the grievances of the people, right? That's amazing quality to have, to be able to empathize a little bit, to be able to say, Listen, I'm not you, but I'm hearing your story about where you were. And I understand that, and it doesn't, although it moves me on purposes of what your punishment may be, it doesn't affect whether or not you did the following five elements, you operated a vehicle impaired in the city of Virginia Beach, but it will have an impact on what your punishment is. So being empathetic and listening to the actual person in front of them. And finally, being humble is a huge deal for a judge. I think we can all think of judges that we think are amazing judges, right? They have a little bit of sense of humor, but they're humble, they don't pretend to know at all. And if they're not sure, they'll ask the question or the ask time to go forward. I'll never forget Judge Woolard, retired Judge Woolard. He was actually in the middle of a DUI case I had. He goes, this argument I've never heard before. I want to take time and go brief it and step off. General District  judges, they have 150 cases coming on behind. And they have a huge docket. But it was a nuanced issue that he wanted to look into. So humility, empathy, and the actual ability to show that you are listening to all the people involved, I think, are the best qualities for judges, and frankly, we've got a good good list in Virginia Beach GDC right now doing that.

Bassel Khalaf:
I completely agree. And you know, one of the things you said was even the appearance of listening, and that sounds maybe superficial on its face, superficial, superficially, that's the thing. But you know, I've had clients where they're like, I didn't have my day in court, the system is rigged, I had zero say in the matter of blah, blah, blah, and you kind of walk away thinking, you know, I know, this judge, I knew how it was gonna play out, I kind of probably told you how it's gonna play out. And then it played out that way. But it does take a lot for, it is pretty important for a judge to listen to, give that analysis to be able to say that, yes, you had your day in court, because you were actually heard, because anybody who steps in front of a judge, and the lawyer gets cut off, and it's like, we know what this is, you know that. It's just, it's not helpful to anybody. It causes people to be disgruntled, to not trust the system. And I'm glad you brought that up. Because I do think that's very important. One thing that I thought was interesting, we brought up MADD, which you said, you know, it is a well intentioned organization, they have a lot of influence and a lot of resources. And a lot of the people in that organization probably suffered horrible tragedies. And that's why they became part of the organization. So that aside, I did have a DUI case and I'm walking out of General District Court, and some lady has a clipboard, and she's sitting there and she comes up and she says, What's your name? And I was like, my name is Bassel Khalaf and I was like, You want my business? She's like, Nah, uh, what was the judge's name? Like, who are you? As she says, I'm part of MADD. And it was, it was a little unnerving to me, because I was like, alright, we put on a case and you're supposed to have this pure system where there's law, and there's facts, and there's an arbiter of whatever and you put it on, and it result comes out. I'm just like, alright, now that I won the case, you're going to be super mad, and you're gonna bash this judge? You're almost tipping the scales a bit as a citizen, which maybe that's the point of our society. I don't know. But and I'm not trying to get too far into the weeds and put you in a weird spot, but give any thought on maybe the sort of lobbyists who are coming in and trying to tip the scales one way or another or move the needle a bit.

Stephen Pfeiffer:
I think MADD is a noble organization. And they stand for a noble purpose. I think all of us in this room would be like, listen, you get hammered and go behind the wheel and kill somebody, shame on you. We don't want that. We all we all have kids. We live in this community. So we support the notion and we support Colin's approach of being tough on DUIs. Making sure we're prosecuting DUIs, and being fair and having a team to make sure it's done correctly, right. I think all of us support that. But what I don't support and I think where we get a little too far afield is having people sit in the courtroom, the clipboards, that are monitoring every DUI case that may happen that day, non-lawyers, non-lawyers, right. Normally I think it's students from TCC they recruit to come in there and monitor the cases and go back and forth. And then they sit there with the clipboard and ask the judge's name and the prosecutor's name, the defense attorney's name, and they write the results. Well, these kids that are sitting there are just recording they're basically scriveners just recording what the results were. They have no idea if there was actual good legal defenses to the case and that the case should have been dismissed. All they're saying is judge so and so dismissed the case. Oh, that's a check against him because he's not tough on DUI. And that's how the system gets messed up. We've got to keep the neutrality of the judges, they shouldn't be afraid that they're gonna get pressure from a lobby to the General Assembly not to reappoint them because they're doing their job correctly. Now, if they're just dismissing DUIs willy nilly, because Oh, look, you know, this guy is a nice guy, so I'm going to dismiss it, different story. But as far as I'm aware, they're not capturing the nuanced facts of the case, because they're not capable. They're not attorneys that are familiar with the system, and seeing those differences. So the pressure that puts on judges, I feel terrible for judges in that regard. Because it's external pressure, I feel terrible for the prosecutor sometimes, because sometimes they want to make a better result in a case because they know their case is not as strong as it should be. But having third party in there who's going to write letters to the General Assembly and write letters to your boss and write letters to this because a case got dismissed or reduced. I think that's an unrealistic and unfair pressure on the system that takes away the pureness of what our system is supposed to be. Our system is supposed to be an adversarial system that all parties are seeking justice. And justice is, you could be guilty as hell for what you did. I tell my clients, you can be morally guilty, but you're not legally guilty, there's a difference. You can go beat yourself up at home for what you did or what you did. But the government can't prove their case beyond a reasonable doubt, that protects the innocent person later down the road. We can't bend the rules to convict the morally guilty.

Taite Westendorf:
I agree with every word you said. I'm going to start segueing. We talked a little bit about operation. And that's one of the important elements that has to be proven in a DUI case. But impairment typically would be the most important element and whether the Commonwealth can prove it. And that's a very complicated element. And there's no way that we could cover all of the different factors that go into proving impairment in a one hour podcast, but a couple of important ones are people's performance on the field tests. And the obviously the BAC result, breath test or blood test result, right. So why don't we take those up one at a time. So everybody out there is probably familiar, people are under the assumption that point .08 is sort of a magic number. If you go down to the jail, and you blow into a machine, and it reads out .08, that's sort of the official number that most states I think, maybe all the states across the board now have recognized as there's a presumption that you're impaired. Or a rebuttable inference, whatever the fuck that distinction is I've never understood. 

Bassel Khalaf:
I think federal funding gets withheld if the state doesn't comply with that.

Stephen Pfeiffer:
On a side note, interesting side note I have from the great state of Wisconsin originally, although I am full hearted Virginian. Now, I've been here for 17 years. But the great state of Wisconsin held out, we were the last state in the union that held out on .10. 

Bassel Khalaf:
Cheese loving bastards. 

Stephen Pfeiffer:
Talk about powerful lobbies. The Tavern League of Wisconsin is a powerful lobby, and they held out as long as they could until the feds said no more funding for your roads. And Wisconsin's like, deuces. Sorry, side note.

Taite Westendorf:
No, no, no, not at all. That information is very appreciated. The question that it begs and that people out there might be wondering, I think even attorneys wonder it, I know I wonder it because I'm not as well versed with DUIs as you are. So people blow into this magical machine, and it spits out a number. And it begs the question, how do we know that's an accurate number? I know there's been a lot of conversation about and attorneys have tried to subpoena the the source code for machines. To try to understand how these machines work. And the general response has been, well, you don't really need to understand that. You just need to understand that this number is accurate and makes sense. And we're going to convict people based on it.

Bassel Khalaf:
We had one, you get into partition ratios, which is one thing that the machine has to make an assumption about and then when you're talking about beyond a reasonable doubt, but you're gonna be like, Alright, we also assumed a thing. Those aren't really compatible, but sorry, all that to say...

Taite Westendorf:
I know it's a super complicated question, but I guess it boils down to at its essence, my question is, should we trust in the number that's blown?

Stephen Pfeiffer:
Alright, I'm a huge fan of the movie The Matrix, so I don't trust machines. 

Bassel Khalaf:
Do you trust Keanu?

Stephen Pfeiffer:
I trust Keanu. But I have spent a lot of time studying that machine. I've had a lot of talks with the people at the Department of Forensic Science that governs and regulates those machines and calibrates those machines. I've actually gone up there and done the training on the machines. So I'm very familiar with it. I will say there is an estimate of uncertainty built into every reading on that machine. And it's listed on the Department of Forensic Science certificates about that machine. What's fascinating is, the estimate of uncertainty is not for the individual blow, it's actually for the entire process. So for like the training of the officers, to the atmosphere, you know, temperature in the room, right. Every stage of the process from the officers being trained, the machine being calibrated, the person blowing and the results printing out, they have to estimate an uncertainty level in that machine. And depending on what the BAC level actually prints out as a different level. I don't have it in front of me. So I may be wrong, but I'm pretty close on this. I think if it's .08, the range of uncertainties is point. 004. So if you have a .08, the machine could be plus or minus .004. And if it goes up to .15, it's like .009. So they try to build in this uncertainty in it right? I can tell you that I go back and look at the source code of the machine. I look at the blows that go into the machine. I compare the to the PBTs that I get that, PBTs are the handheld breathalyzers the police can do in the field. The machines pretty reliable. I hate to say it, but it really is. It's pretty reliable. I've compared going back and forth. I hate doing that. But I don't think it's reliable for determining what intoxication really is. Alright, and that's why there's a case called Yap, which basically says it's a permissive inference, not a rebuttable presumption that you're drunk.

Bassel Khalaf:
Is it really though?

Taite Westendorf:
The simple answer to that is hell no.

Stephen Pfeiffer:
It is if you have a .08 exactly. Then you can maybe get it to come into play. Or .15 exactly. Maybe get them down below that.

Bassel Khalaf:
There's people who are good at drinking and people who are bad at drinking. And when you break down intoxication, you start talking about whether your speech manner, disposition, all this type of stuff is affected. And there are people who I know, you could give them a couple of shots, and they're just seeming super wobbly, and you know, loose and noodley. And they're not going to be any more than a .05 after a couple shots. So you know, if they blew in a machine, they'd be fine. But we know they're not fine. But then you get, we've had probably both had alcoholic Magoo, who can be at a .25 and operate perfectly fine. I'm not gonna say you should be behind the wheel, he probably shouldn't. But if he's at a .08, I would rather take him at a .08 than the other person at a .04 or .05. I mean it's just body chemistry. There's all these things that are not accounted for.

Taite Westendorf:
So maybe if you can prove that you're a full blown alky, you'll get a card from the government.

Stephen Pfeiffer:
So yeah, if you drink a lot, document it and bring it to court. Dude, I drink all the time, though.
I'm a professional drinker ergo I can drive. Thank you very much.

Bassel Khalaf:
I guess what I'm saying is, I'm sorry, just very quick on the partition ratio thing. It's the ratio of the volume of your breath to the amount of alcohol detected, and then somehow magically, snap your fingers. And then we can determine how much is in your blood.

Taite Westendorf:
Just to give people that might not be familiar with the idea of a partition ratio an idea of what we're talking about. It's basically the idea that people have biological differences, right? In their lung capacity and...

Bassel Khalaf:
Nobody can tell you why a person might have a different partition ratio than somebody else. Sorry, the only reason I hijacked this part of the conversation and get into that is there's all these differences between people. And everything's idiosyncratic. Even the breath test, which is supposed to be the most scientific part of it. But you get into the non scientific part, which is the field sobriety test, you know, the breath test and the partition ratio, that's not open to peer review. That's not open.

Taite Westendorf:
Hold up one second.

Bassel Khalaf:
Am I getting too deep?

Taite Westendorf:
You're not getting too deep, but I just wanted to finish before we get into the field tests.

Bassel Khalaf:
My bad.

Taite Westendorf:
So you brought up a really interesting point, which is, okay, you've done the research, and you've made the conclusion that the test is pretty reliable. Okay. But it's not necessarily an accurate indicator of actual impairment because there's so much variability that goes into that based on the individual characteristics of the person. But how do we as a society deal with that? Do we have to have some sort of arbitrary cutoff? 

Stephen Pfeiffer:
What we do again is untie the hands of the judges, is really what it comes down to. We have, as lawyers, the impossible task of rebutting the permissive inference of if you're over .08, which most courts will be like, this is presumed intoxicated, you have to convince me otherwise. But we need to let the judges know that it's okay. It's not your job to rely upon the machines results. Think about think in the medical field, right? A doctor is going to look at symptomology, they're going to look at all sorts of different characteristics, not just a test result to determine whether or not you have cancer or you have something else. You can't rely solely upon a result from a machine. You can't. You can't do that. There's other things and machines are capable mistakes. People can have some nuances that can mimic cancer, right. You have to look at everything in totality. We have to realize that this machine could be wrong. There's a possibility it could be wrong because it's based upon variables, and every person comes before it differently. And perhaps the officer didn't follow the protocol he's supposed to follow correctly. Maybe that person had invisalign in while they blew in the machine and it didn't trigger a mouth alcohol detector. And all of a sudden, we're having elevated BAC. There's all these factors that come in, we make those arguments on the procedure. But let's say that the result is what it is, it was .08, right. And there's nothing to dispute the machine was incorrect or correct. But the person did fantastic on all the other things they did. Otherwise seem to be on not impaired whatsoever. We have to have the ability to let the judges realize that you're not bound by that number, despite what the law says. And despite that one case that says you're not bound by it, everyone keeps saying you're bound by it. Give them the freedom to say judge, look at this, my client had no impairment on their speech, their motor skills were fine, they did fine with that. They're processing information, they're answering questions to the officer going back and forth. They're literally doing all the things that you'd expect a driver, a perfectly fine driver to do: multi-task, process information in a timely fashion. And even the toxicologists will say that at this level of BAC, that these things will start happening to your motor skills or cognitive skills, but they have to concede that it's different for every person. So for example, women out there, I know you got a lot of women listening to this podcast clearly with you two gentlemen hosting it. Specifically what I'd say is this, is that women maintain alcohol in their system longer biologically, they hold alcohol in their system longer. So there's no dispute on that. So a woman who has X number of drinks versus a man who has X number of drinks with the same height, the same weight, a woman will have a higher BAC because their body holds on to the alcohol longer. So we have to factor in all these other biological considerations. But just go back to the original definition. Is your speech, manner, or disposition, musculoskeletal movement affected by alcohol? And if you're functioning otherwise, perfectly normal, then the court has the ability to overrule that number and say, listen, I don't like you're drinking and driving, but you weren't impaired under that definition.

Bassel Khalaf:
I mean, it sounds like people have tried to make this a completely scientific thing where a machine can tell you, yes, he's guilty. No, he's not. But of course, we know what happens when you let machines get too deep into human...

Taite Westendorf:
Skynet.

Stephen Pfeiffer:
Skynet all day.

Bassel Khalaf:
It's disgusting. But he other part of it ends up being the field sobriety tests. And those I find interesting because I think there's a correlation between if you're wasted, you're not going to be able to do them. But usually we work in these margins of this person seemed kind of drunk. But were they beyond a reasonable doubt impaired and intoxicated under the statute, all that type of stuff. And the field sobriety tests, the three...

Taite Westendorf:
Can I just call a T.O. real quick? We play a lot of inside baseball on this podcast, but I want to make it accessible. And so we're now segueing into something called the field sobriety tests. And so that's sort of the beginning of any DUI investigation. A cop pulls somebody over, maybe they smell like booze. Whatever the case may be, the cop thinks they were drinking because they were swerving all over the place. There are field sobriety tests that are done at the scene. And those are typically done before there's ever been a breath test. And so that's what we're talking about. And so sorry to hijack you, but what are those field sobriety tests?

Stephen Pfeiffer:
Lovely segue by the way. Well done.

Bassel Khalaf:
It is. And they actually, we'll get into this later. Another topic we're gonna need to address is going to be how do you analyze a DUI and it's going to be the driving behavior, after you're pulled over, and they look at everything from do grab your license properly, or do whatever. So they're from minute negative five, they're already assessing, are you DUI. But at some point, you get to where the officer says, step out of the vehicle. They're to me a little shady about, do you mind doing this and sort of conflating that with hey, come in, do these tests because it's now time to do the tests. It's an interesting thing because you don't have to do that. If you're going to take one thing away from that this podcast, you don't have to do those tests. But the tests, the three that are the major ones are the nine step walk and turn, the one leg stand and the horizontal gaze nystagmus test. Walk and turn to me, I always describe it as dance moves, because my wife's super coordinated, you could give her a series of steps. And she's a J-Lo and Shakira and she does this awesome thing, shaking her booty and whatever, and she does awesome. And if I tried to do the same steps, I'd suck. But with the nine step walk and turn, it's put your hands by your side, walk heel to toe nine steps, and then take a small series of steps, and turn back around, and then do the same thing. And you're already under the stress of like, hey, I'm pulled over for DUI. You know, I might have a couple beers in me too. Which I'm saying that you could have a couple beers and not be DUI. But you know, you're still trying to follow all these directions. And it's this almost insurmountable task. Of what are you talking about? What do you mean heel to toe? What do you mean small series of steps? Do I do a Michael Jackson spin at the very end or whatever? 

Taite Westendorf:
Hee Hee

Bassel Khalaf:
All that to say, you do these field sobriety tests, one leg stand as you keep your foot up off the ground some distance and you count to whatever they tell you to. One thousand, two one thousand. And you do it and they mark a series of clues. One clue was he didn't turn properly, one clue was he put his foot down, one clue is his hand left his side, all this stuff. And that stuff carries so much weight with the judges. And these people, these officers, they say, well, I have my training and experience. And I think there always needs to be an objection. Like only an expert can interpret this. And to say that I took a class on it and maybe sat down for an hour or two, and somebody told me these are the rules. That doesn't make you an expert. But like I said, at the beginning, I think there's correlation for sure, between field sobriety failures and being drunk, but also NHTSA, the National Highway Safety Administration is this arm of the government. They champion these tests, and they say we have a study and it shows that if you've got the one leg stand and the HGN, then you're this percent probably super drunk. But they don't open that up to scientific peer review, which pisses me the fuck off because they say it's scientific. But it's not. Science is malleable. Because if somebody comes in with better science, then you replace the old science with the new science. Field sobriety test to me, again, there's validity somewhere in there. But if you're not going to open it up to peer review and studies, and let me bring in my expert who might say something else, and have a valid point, then fuck your studies. What do you think about that?

Stephen Pfeiffer:
Wow, bold statements. So I will say I think it's it's hypocritical to call it a scientific study and not make it open for peer review. I think anyone who reasonably took biology 101, or chemistry realize that in order for any science to be validated, it has to be open to peer review. And that is something that they lack on the field sobrierty standards and studies. Again, reiterating what you said, or iterating, really is not reiterating, and let's be honest, we're just iterating. Right?

Bassel Khalaf:
You've also iterated what I've said.

Stephen Pfeiffer:
I'm iterating what you said. You do not have to do the field sobriety tests. All right, you're not required, nor is the officer required to tell you that you don't have to do the field sobriety tests.

Taite Westendorf:
Let me just take a quick timeout right there. So to what extent if any can a court consider that you refuse to do the field tests as far as your level of impairment?

Stephen Pfeiffer:
There's a case called Jones versus Commonwealth. I don't know the citation. I know, it's Jones versus Commonwealth. And it's a really convoluted case. And literally if you read it, your head may split. While you're trying to read it as a lawyer or especially as a non lawyer. It's already difficult for lawyers. So I can't imagine what it's like for non lawyers. But whatever the case, the case basically says, I'll boil it down in my own words, is that a court can consider your refusal to do field sobriety tests as consciousness of guilt for purposes of the officer arresting you, but they can't consider it beyond a reasonable doubt.

Taite Westendorf:
So it's basically probable cause but not reasonable doubt.

Stephen Pfeiffer:
Yeah. So basically, by flipping off the officer respectfully. There's no reason to be a jerk to the officer, the officers are doing their jobs and honestly, most of the officers are cool. They're cool cats just doing their job. They really are. The majority of officers in Virginia Beach I can speak for I think are great humans that...

Bassel Khalaf:
Who do you hate? I'm just kidding. 

Stephen Pfeiffer:
They know who they are. 

Bassel Khalaf:
Fuck you whoever you are.

Taite Westendorf:
Son of a bitch.

Stephen Pfeiffer:
But they do their job and they do it well, but you don't have to do it. But by not doing a field sobriety test, you're basically giving the officer a greater chance to arrest you. So you got to have the ability to say, you know what, I may get arrested by not doing these tests. But I'm going to give my lawyer a really good opportunity to argue. 

Bassel Khalaf:
That takes some cajones. 

Stephen Pfeiffer:
Yeah, it does. And people, the first thing that goes whenever you have any alcohol in your system, as soon as it seeps into your frontal cortex and starts moving its way back through your brain is judgment. Right? Your ability to process long term consequences is the first, and it's destroyed by alcohol. So you're just thinking about that moment right there. And that's why people freak out like, I gotta do this, I gotta do this. 

Bassel Khalaf:
Yeah, you wanted to defund the police. And then you're like, wait, that actually doesn't make sense. 

Taite Westendorf:
But also, in that same vein, the preliminary breath test at some point becomes a thing. Right? So it can't be considered towards guilt versus innocence. But it can be very much considered on probable cause for arrest. Would you have a very specific piece of advice to give to people? Should they refuse the PBT? Should they do it and consider it, hey it's a no risk scenario, because it can't come in for guilt versus innocence. Or is it just one of those things where it's very hard, it's very fact specific.

Stephen Pfeiffer:
So I get this question a lot from clients after they'd been arrested, like, what should I have done? Well, if you engaged in the field sobriety tests already. And you probably didn't do that great out of them because they're not easy tests to do sober or otherwise, right? At that point in time, you've probably already given the officer a lot of information to arrest you. So if you think there's a chance that you might blow a decent number on the PBT, go for it. It's not going to be used against you, right? If you didn't do the field sobriety tests, or it appeared that you performed very well on the field sobriety tests, I would not do the PBT. Because basically you've taken away your attorney's ability to argue whether or not they should have arrested you which is one stage of our defenses. So all of us break our cases down in four stages. Should the officer have come into contact with you. That's called reasonable suspicion. Should the officer have arrested you. That's called probable cause. The next step that I break down cases down in DUIs is the technical stuff, like does the blood result come in, does the breath result come in? Do they follow the appropriate procedures post arrest. Then step four is beyond a reasonable doubt. So if you give a breath result, a PBT result, a handheld breathalyzer, and you give me a number that's positive for alcohol. Generally over a .08. Well, you basically gave the officer a green light to arrest you. But if you've already done field sobriety tests, most likely, you've already given them a green light to arrest either way. So either do really good on field sobriety test, then don't do it. Don't do field sobriety test, and don't do it. Or just do it because you've already done everything else.

Bassel Khalaf:
Oh, you're looking at me.

Taite Westendorf:
You want me to jump in? I thought you were ready. Let's just go a little, not off topic. But let's go in a different direction here. So one thing Bassel and I have talked about many times over the years, and we chop it up with so many defense attorneys. And we talk about how did you arrive at this point where you were a defense attorney? And a lot of people have this sort of seminal moment in their life where they realized, well, maybe the system's not as fair as I thought it would be. Or maybe I felt like I was mistreated at some point. Did you have that sort of experience? Was there some seminal moment where you thought, there's something to being a criminal defense attorney?

Stephen Pfeiffer:
There was an exact moment where I decided to be an attorney. I was watching Nick at night. 

Taite Westendorf:
It was Mr. Ed, the horse who talks?

Stephen Pfeiffer:
That was on the list. Mr. Ed, Leave it to Beaver, and then the most badass attorney in America at that point in time, Mr. Perry Mason. Mr. Perry Mason came on TV and I'm this kid growing up. I was born in Milwaukee and I grew up in the country like a little small town with farms all around and all that. My dad was a foundry worker. My mom was doing everything she could to keep food on the table. She was worked her butt off in a small country town, right? And I'm watching on the little antennas. I'm watching this thing, Nick at Night. And Perry Mason comes on. I think I was eight years old. Like literally I'm pretty sure I was eight years old. And I watched him break this guy down on the stand. The guy starts crying like I did it, I did it, I admitted I did it. And his assistant comes running in with their piece of paper and Perry Mason's like, I got you and sets him down. And I was like, this guy is so cool. I asked what does this guy do? Who's this Perry Mason guy, and my mom was like, he's a lawyer. I was like, I'm going to be a lawyer. I have no lawyers in my family. I was again, my dad was a hard working foundry worker and worked his way up in the company and my mom worked 1000 different jobs. Grandfather is Navy, our grandpa was a high school football coach. So for me, this is like a brand new experience. I had no concept of what a lawyer really was. So Perry Mason gave me my idea of what a lawyer was. PS, it is not realistic whatsoever.

Bassel Khalaf:
You lied to us Perry Mason.

Stephen Pfeiffer:
Damn you Perry Mason.

Bassel Khalaf:
I've had maybe one or two moments where it was that sort of, oh shit, you clearly won the case because somebody said a thing, but it doesn't happen that often. It's usually like, come on judge, what had happened was...

Stephen Pfeiffer:
But that was the seminal moment. And honestly, I'm one of those kids who gets laser focused on something and literally the rest of my life, I wanted to be a lawyer.

Bassel Khalaf:
So what's your practice now? And I guess this is interesting because Taite and I we left the PD's office. We'd been there for a number of years and kind of out of nowhere said hey, we're gonna start our own thing. When I think of Pfeiffer, I also think of Latuga. So y'all are kind of paired up in a way, but you all are under the umbrella of Wolcott. So what's the setup there? Because I'm still a little unclear. I know you've got a massive presence without any external help.

Taite Westendorf:
Do you need a refill Steve, you good?

Stephen Pfeiffer:
I'm good right now. Maybe afterwards though. Alright, so to answer that question, Wolcott Rivers Gates is 125 year old law firm. It's literally the 125th anniversary this year. Yeah, it's pretty rare to be super old. But when I decided to stay in Virginia, and my wife actually was interviewing in the Commonwealth's Attorney's office in Virginia Beach, and she later became a prosecutor at the beach. 

Bassel Khalaf:
Were you macking on her while she was a prosecutor?

Stephen Pfeiffer:
I was macking on her when she was in law school. A fun story. My wife hated me when she first met me in law school so I had to just grow on her like a fungus. And eventually she decided to marry me and we got married going into our last year of law school.

Bassel Khalaf:
I know it's a complete sort of tangential part of the conversation. Those are always some of my favorites. But can you give a little more insight into why Shelly hated you?

Stephen Pfeiffer:
Yeah, well one, it's me. So I was a college football player and I went to law school and I didn't really understand the law school experience. I wasn't prepared for the formality being a country kid and then playing college ball in Milwaukee and all that. So I would come into my law school classes the first week in sweatpants and a cut off T shirt like I just came from the gym. Come in there and walk into class and everyone else is in polos and dressed up. I don't know what your experience was in law school. But people are dressed up and I'm sitting there and she's already looking at me like what is this guy doing? Well, what a schmuck and I sat next to the best looking girl in every class. As a single guy. I'm a first year law school. I think that was Shelley. So I posted up next to her in the front row. And I was like, Hey, I'm Steve, nice to meet you. Cool. And she saw the Christina Aguilera backdrop background I had on my computer.

Bassel Khalaf:
This is the alpha male I need. God damn.

Stephen Pfeiffer:
Literally turns her computer away from me like literally turned her back and her computer away from me, and doesn't say a word to me. It was like, all right.

Bassel Khalaf:
Our next podcast, yes, is actually Shelley Pfeiffer.

Stephen Pfeiffer:
What was she thinking to marry me? But it turns out I'm actually a pretty decent guy and I love my wife and 15 years later, I mean, next year be 15 years we've been together but yeah, Shelly was not impressed that with my alpha male bravado that I brought into law school and quickly got checked because it was law school.

Taite Westendorf:
That's an awesome story.

Bassel Khalaf:
I love it, sir. 

Taite Westendorf:
I know that you mentioned that you were a college football player. And I remember early attorney Steven Pfeiffer being some grade a choice sirloin and you were a big guy, and you've become a lot more svelte. So I know you gotten into running? 

Stephen Pfeiffer:
Yeah. One thing of being a linebacker in college than trying to maintain as a lawyer is we have kids and we have a legal profession that forces us to work. Non Stop. I can't even imagine what you guys did in the public Public Defender's Office. PS, major kudos to you guys. I watched you do your job as public defenders. You did it with excellence and integrity. You worked your butts off for your clients.

Bassel Khalaf:
Appreciate it. Somebody noticed.

Taite Westendorf:
We're gonna get you to sign the petition to get them more money.

Stephen Pfeiffer:
No, I support that 100%. Another aside, my son was about eight years old at that point. And he saw a picture of me from college and I had my shirt off and I was just done racing, a baja dune buggy racing with my brother. And he said, dad you were ripped , past tense. And I looked at myself, like, I'm like pudgy. I'm like the Pillsbury dough man. And like, What happened to me? So I decided I was gonna start running. And I just turned myself on to running and started running. I ran a half marathon and started running marathons. So I got running quite a bit, and I shed 30 pounds of extra weight. And now I'm an old man, and I'm getting close to 40 I want to not be...

Bassel Khalaf:
I'm a couple steps behind you. I met my wife in law school, and I was macking on her when she was a one L and I was a three L. I don't typically brag but I'm going to because I was the law school football league MVP for Washington and LL. Oh, Hey, yo, so she noticed like, you know who wouldn't notice that? But yeah, now I was pretty, uh, I don't know, less pudgy. But now that you said that, I hope my wife's not listening because he's gonna hold me to it, but I think I'm gonna start running half marathons.

Stephen Pfeiffer:
Wait until your kid says you used to be ripped. kid. He's like, hey Dad, you're welcome for being more in shape. 

Bassel Khalaf:
I don't know if y'all deal with this. My kid is his four about turn five. But he's got this thing now. It's just this compulsion where he just like comes up and he punches me right in the dick. And he calls himself Captain punch, his champion punch. And I'm just like, yo, why? It's so fucking funny. But then also at the same time, like, it's not cool. So like, you kind of have to walk that line. Taite's got four kids, he's got three daughters. You've got a daughter and a son. All kinds of weird conversations you have to have at some point, but it's like, yeah, that's super funny. And in college that will fly but right now it's not gonna fly. So I need that.

Stephen Pfeiffer:
I have no legal advice for you on that.

Bassel Khalaf:
Sorry, sorry. We did get a bit far afield for sure.

Taite Westendorf:
I thought we were gonna transition into kids. Liam loves Masked Singer. I wanted to break down last night's episode.

Bassel Khalaf:
Was it the dragon or something?

Taite Westendorf:
It was as Busta Rhymes. Can you believe it, Busta Rhymes?

Bassel Khalaf:
Spoiler alert. I'm gonna put a spoiler alert.

Taite Westendorf:
Oh, yeah, we're gonna have to do a spoiler alert. Sorry.

Bassel Khalaf:
Let me get back to DUI stuff real quick, because we're pushing an hour now, which is awesome. We definitely appreciate that. You got to peace out when?

Stephen Pfeiffer:
One o'clock man. You got me until one as long as you want to go. 

Bassel Khalaf:
Alright. Well, here's something that we talked about analyzing a DUI case, and the things you look at one of the things is always going to be the traffic stop. That to me is my favorite. I love saying that this person was illegally seized, and you pulled him over in violation of the Fourth Amendment. That is my jam. Because that's how you can point to the Constitution and say, if you don't agree with this judge, and you hate the Constitution, and our soldiers died for nothing, all that type of stuff, you know. But then after the stop, typically, it's the window rolled down and smelled like a brewery. Was it Maghera? That's one of his favorite lines, I think. But then they pull the guy out and he's clearly drunk and he gets arrested for drunk driving. Field sobriety test though. Virginia Beach recently in the last two years moved towards getting body cam. So I did a lot of DUIs on the misdemeanor team with public defender's office. You know, we lose most of them. I think the conviction rate is what 96%?

Stephen Pfeiffer:
The overall conviction was like, I think it's like, I think it's, it was 98 a few years ago, and it dropped to 96ish, but it's always 95 Plus is the rate for conviction.

Bassel Khalaf:
It's huge. It's huge. Most people are getting convicted. And you know, it's not always the typical, like, if you have facts to work with, that's not the sample size you're working with, statistically. But anyways, we deal with, I dealt with a lot of field sobriety tests, where it's like, oh, he missed heel to toe, he lifted his hands. He's super slurred. But now body camera, which I love. And a lot of prosecutors say have fun watching the body cameras. And I'm like, I will you bitch because guess what, if the body cam shows that he's super guilty, it makes my job so easy, cuz I'm like, dude, it's on camera. You did it. And if it's not super, but we have so many where on paper, they would say, this person failed or showed all these clues that show that he's intoxicated, and then you play the video and you're like, it's not here and you play it for the judge. And you ask the officer on cross like, hey, point point to where he did what you said, or show me where it's slurred. All this type of stuff. And I find that to be very helpful. I'm just given my point of view and then asking, do you agree with it?

Taite Westendorf:
Can I add two sentences? So what, it's been a couple of years now that body cam became widespread adopted, at least in Virginia Beach. Virginia Beach was actually one of the late adopters in Hampton Roads. But has that been any sort of a game changer in your practice? 

Stephen Pfeiffer:
Abslutely. So one thing is that the prosecutors have to watch every scrap of body cam that comes in so if Tom, Dick, and Harry show up on the scene for a DUI arrest and they all got their body cameras on next you know, we got one our body cam turn into five hours of body cam. So one thing that sucks is it slows down me getting the discovery, because the Commonwealth can't turn it over to us until they've watched it and made sure everything's okay. And they redact personal information of random people and their pictures and all that. So, in fact, in my practice, in a crappy way, because now it takes forever to get discovery and I feel bad for the prosecutors honestly. But it has been a game changer and fantastic for me and my DUI practice because like you said, you can watch it and like, screw this up, you screwed this up. Yep. And I can just cross check the check sheet. He also does check sheets without like taking notations and things they did wrong in the field sobriety test. So I can look at that. And I can watch the video and see what things I agree with and what I disagree with. And compare the two. Also, I've been trained in the same testing that the officers have done in the field sobriety testing. Ironically, you can't get certified in Virginia, but you can go out of state to get certified for it. So I'll have a certification next year, by the way, officially, instead of going out of state to go get my official certification. But I've done field sobriety tests forever, I know them pretty cold, so I can watch them and say the officer didn't instruct the person correctly. And if you didn't instruct the person correctly, then how can you rely upon the reliability of that test? Because these are scientific tests, you have to...

Bassel Khalaf:
And NHTSA has it in their manual that if any part of the thing is compromised, and the validity of...

Stephen Pfeiffer:
Exactly, the reliability of these tests can be compromised. So what I do is, I fine tooth comb the instructions the officers give, and then I fine tooth comb the performance of my clients, and sometimes you'll get stuff like he broke his stance during the instructional phase. Well, the judge is thinking on paper like, oh he fell over, or he almost stumbled while he was giving him instructions. No, it literally mean that while he was giving him instructions, instead of keeping his right foot in front of his left foot with his toe to his side, he went to a normal stance that we stand in every day, as we're sitting here in court.

Bassel Khalaf:
Only perfectly symmetrical human beings don't have a slight sway about their person. I actually had a case where I pointed to the deputy and I was like, I've been watching this guy, and he's been swaying quite a bit. You should probably PBT him.

Stephen Pfeiffer:
So I mean, the body cams have been fantastic for me because they show I can quickly analyze a body cam and be like, alright, I have a chance to win this case on probable cause or not on probable cause and go back and forth and see. They've been fantastic. Plus, they're good for the officers. Think of the environment we're in right now. Right? It's so charged right now for good reason. All right, there are terrible officers out there who do terrible things and they need to be held accountable. There's amazing officers that do amazing things that are being grouped in with terrible officers, right. Body cam shows who's good and who's not. It separates the biblical quote the wheat from the chaff. It shows who's good and who's not. And it's a great opportunity to protect good officers. 

Bassel Khalaf:
What is chaff? 

Stephen Pfeiffer:
It's weeds. Ironically enough, I looked it up for the first time this week. It looks exactly like wheat. If you put them next to each other. They look exactly the same until they're harvested.

Taite Westendorf:
Props for crushing that answer.

Bassel Khalaf:
Sorry, we like doing hard hitting journalism here on this podcast.

Stephen Pfeiffer:
Wolf Blitzer over here coming at me.

Bassel Khalaf:
You don't know what chaff is, you bitch!

Stephen Pfeiffer:
The body cam has been a fantastic thing for us because it can tell us quickly do we have a defensible case? Do we not have a defensible case? Is the officer doing the right thing? Is the officer doing the wrong thing? So I think that's good for the system.

Bassel Khalaf:
What do you think about this? We didn't even talk about this part of the field sobriety test because I was talking about one leg stand and walk and turn. But horizontal gaze nystagmus is interesting because it's, you will hold your finger out 10 to 12 inches from the nose or 12 to 15 inches. 

Taite Westendorf:
I'm glad you brought that one up specifically because I've always been skeptical because it seems to me to be some sort of an ophthalmological diagnosis.

Bassel Khalaf:
Yeah, you need that person to come. Ophthalmologist to come in. But yeah, exactly. What I was gonna say on the topic of body cam is just for anybody who's listening who doesn't know what HGN is, somebody wiggles a stimulus or whether it's a pen or a finger.

Taite Westendorf:
Let's not say they wiggle it. They do a smooth pursuit. 

Bassel Khalaf:
Smoothly move it to one part of your face to the other. They move it across your field of vision and your eyes track it, and they say if you're legit and not drunk and it's your eyes move like a marble across a smooth surface. If it's your drunk then the marble...

Taite Westendorf:
Basically your eyes will involuntarily jerk...

Bassel Khalaf:
I didn't want to use involuntarily jerk because I think that's a little...

Stephen Pfeiffer:
I get so pissed at my clients who say I passed that test. It's like you have no idea what your eyes were doing. 

Bassel Khalaf:
What I was gonna say was on that test, you have no clue what your eyes are doing. So we have cameras though and there's no reason like any...

Taite Westendorf:
Tell me if I'm wrong but that's the one thing on body cam I don't think that really gets captured is performance on the HGN.

Stephen Pfeiffer:
So if the officer is wanting to take it to the next level which honestly I bet at some point Virginia Beach they're gonna do because they always take it to the next level. I realize they'll hold the body cam up while they're doing HGN.

Bassel Khalaf:
Yeah stimulus with a camera in it and you can document so a judge can be like cool that's kind of like a marble over sandpaper but...

Stephen Pfeiffer:
But the HGN was the one that, you know on your list of five things that piss you off on your previous podcast. I would add on my personal list, the HGN is one of those, right? Because the HGN test there if I remember correctly, there's probably more but approximately 80 plus different causes of it naturally of nystagmus in someone's eyes. And we have these officers who are great officers, and they're trained the way they're supposed to train. But they're not ophthalmologists. They don't know. Like, my dad has MS. My dad lives with me, we take care of him. He's good, dude, I know what goes on. Right? I know, that guy has got jacked eyes at all times from MS. He's gotten nystagmus all the time in his eyes, right? So you got a person who has MS? They're gonna show nystagmus right away. Well, we can filter that out by our three step process of are your eyes equally dilated, do you track normal? No, you can't. Let's be honest, no you can't. I don't buy that science especially when you won't let peer review come in and do an analysis of it. So HGN tests really ticks me off because you have an officer do it in an imperfect environment. You're out in the frickin wind, in the rain. Alright, when these tests are done, they're done in a controlled scientific environment, like a gymnasium, something where there's no other distractions. You're going back and forth, you got cars whizzing by, you got lights flashing everywhere. So these tests really piss me off. I'm proud to say that most of our judges in Virginia Beach at least, will consider HGN only for probable cause. But when it comes to beyond a reasonable doubt, the final stage of the analysis of innocence or guilt, they're not considering it.

Bassel Khalaf:
So if you if you need to, if you want to, you can object to a witness coming in and giving testimony to things that just normal lay people don't understand. And then you have to whatever the other side would be to then qualify them as an expert. All that type of stuff to me is a no brainer that anybody who comes in and says, Hey, I moved my finger in front of this person's face, and his eyes did a thing. So I then therefore determined that this is evidence that tends to show this person was intoxicated. All these people to me, no brainer should be have to have to qualify as an expert. Again, if you're not an ophthalmologist, and bring your ophthalmologist buddy to say, here's what I saw, and here's how they interpret it. But you know, you get these people and we say, and I agree 100% that Virginia Beach Police are pretty well trained on DUIs. But you're typically well trained on like a textbook. You read a book and it tells you a thing, and you say this is a thing, and then you're done with it, whatever, and you move on with your life. And then you say, hey, I'm an expert. Do you think that horizontal gaze nystagmus, you think that judges should be more receptive to attorneys throwing a fit and saying that this person is not an expert, so therefore, they can't opine on whatever?

Stephen Pfeiffer:
I agree. I honestly agree with the Virginia Beach. Well, not all of them. But the majority of the judges, I agree with their interpretation. I think they can consider it for probable cause. Because the NHTSA standards, the field sobriety tests, right, are really meant not to convict people of DUI. But to give an officer the basis to arrest somebody, probable cause to arrest somebody for DUI. So I'm okay with the judges allowing that to come in for that purpose only. But it should have no bearing unless there's an expert witness there to testify that alcohol at this level would cause this impact. There should be no bearing on that case at that point in time. So my position is HGN, okay for probable cause. HGN, not okay for beyond a reasonable doubt. Unless there's an expert there to testify to it. And an expert can't be an officer who has been trained on doing this. It's got to be someone who's been scientifically trained on how alcohol affects somebody's eyes and can tell the difference between naturally occurring nystagmus versus alcohol induced nystagmus. So for me, I'm okay with the majority of the judges that in our jurisdiction who support that theory, because I think that is right, I think it is for probable cause. But the officer, you know, screwed up the field sobriety test the way they performed it, it wasn't 12 to 15 inches, they did it too quickly, too shortly.

Bassel Khalaf:
So that's my favorite. That's my favorite. The one where you ask the officer how far did you hold the finger out? ANd they'll be like four inches, five inches.

Taite Westendorf:
I'm sure you get that all the time. To me. It's almost a 50/50 proposition that they know how to answer that question.

Bassel Khalaf:
I'll leg drop you if say four to five inches.

Stephen Pfeiffer:
I normally just look at the prosecutor and go, and I tried to get the unofficial court language head nod. We're not going to argue HGN, just leave it alone.

Bassel Khalaf:
Yeah, what other field sobriety tests are you not well qualified on? I love it. If you're an officer listening to this, get it straight.

Taite Westendorf:
It's not that hard. Let me ask you this, because this is a it's an issue that I've been pushing a lot outside of the context of DUI. But I'm interested to hear your opinion on how it might impact DUI defense. It looks like jury sentencing is going to be bye bye effective July 2021. The Virginia Senate passed it. The house justice committee just passed it this week, and that was probably the biggest remaining hurdle. It looks like it's probably going to be the law effective July 2021. What if any impact does that have on DUI that jury sentencing is no longer a thing?

Stephen Pfeiffer:
That's gonna be huge. I am already trying to figure out how I can appropriately charge my clients. Because I mean, you guys know we run a business, right? Like, we're not public defenders, you're not public defenders anymore, you have a private business. So the amount of time and energy that goes into a jury trial versus a bench trial...

Bassel Khalaf:
Is insane. It's like triple to me.

Stephen Pfeiffer:
People are like, what you're gonna charge me X if we do it. I was like, yeah, because it's if...You guys care about the quality of your work. I care about the quality of my work, right? We're not just gonna wing it. We're gonna spend a crap ton of time looking at...

Bassel Khalaf:
We wing it on the podcast. But you're right.

Stephen Pfeiffer:
Yeah, with podcasts excluded, obviously, a lot of winging going on here. But otherwise, you're...

Bassel Khalaf:
I'm eating coffee beans out of a mezcal cup.

Stephen Pfeiffer:
I've been wondering what the hell you've been chewing on over there the whole time.

 

Bassel Khalaf:
It's coffee beans.

Taite Westendorf:
It's so weird.

Stephen Pfeiffer:
Not weird at all. But it's going to completely impact the way we handle our cases. And also, it's going to, to the Commonwealth attorney's perspective, I do agree it's probably going to overload the Public Defenders a little bit, because people aren't gonna pay a private attorney to go and do a jury trial for a DUI on appeal. Yeah, let's be candid, right. They're not. What I anticipate happening is people are going to hire me for District Court. And if we lose, and I think I have a good issue on appeal, they're going to take all the information, I taught them down in District Court and have a public defender defend them in circuit court and overload the public defender system. Yeah. But I think it's a great thing.

Taite Westendorf:
I'm having such a hard time game theorying this thing out. I really don't know. I do think there's going to be a slight uptick in jury trials. But the response is going to be to recalibrate things. Prosecutors are going to have to make way more favorable offers. I think it's going to probably take several years before this thing sorts itself out, and we settle into a new routine. I think we're two years away.

Stephen Pfeiffer:
Literally same wavelength there. I think we're two years out before the prosecutors realize we gotta change our policies, because this is going to be untenable for us to go forward. But I will say, I totally support the theory that a jury should not sentence or if the jury sentences, they should be entitled to all the same information that a judge would have. Because I think it is a chilling effect on our Constitutional right to a jury trial, I've always thought it's repugnant. And for what it's worth to the General Assembly that's been put in power right now and what they've done this year. Like, to me this is the most constitutionally sound law that has been passed to really benefit constitutional rights. I don't take sides, republican democrat, I really don't. I respect both sides. And I have different issues that I support one side more than the other. But the fact of the matter is, none of the sides seem to agree that every amendment of the constitution should be equally protected and supported. Like we pick and choose the ones we like.

Taite Westendorf:
Some like the 2nd, some like the 4th, right. 

Stephen Pfeiffer:
If you say you love the Constitution, you need to love the Fifth, Sixth and Eighth Amendments.

Taite Westendorf:
In present company, I'm preaching to the choir, but in Virginia, jury trial is a threat against a criminal defendant. It's not a right.

Stephen Pfeiffer:
So you look at the jury trials and DUIs in Virginia Beach. I keep an eye on those because they don't happen very often right on first offense DUIs. You'll get one where the person will get six months in jail where they would have gotten no jail time at a bench, right? But then you'll get one where the guy gets a $200 fine. 

Taite Westendorf:
Exactly what you're speaking to is a spiel I've given to so many different clients. I gave this same spiel to a client this morning, which is jury sentencing is insanely unpredictable.

Stephen Pfeiffer:
And I I always tell my clients when it comes to juries, like listen, if you want to do a DUI first offense jury trial on appeal, I am all in. Here's the price tag, it's expensive, and I respect your intestinal fortitude more than anything you can imagine right now because the risk is the jury says you're doing six months. That judge is not hypothetically going to change that. They're going to go okay here you go. I think there's like 90% of judges just rubber stamp the juries.

Taite Westendorf:
Yeah, you're exactly right. Without totally hijacking things. That was an accurate statement. I look at the Sentencing Commission report every year and there's a little bit of variability but it was like 85 to 90% of jury sentences are not touched by judges.

Stephen Pfeiffer:
Yes. I'm glad I was right on that. Awesome, but no, I think it's gonna completely game change. I'm excited about it because I love to do DUI jury trials. I geek out. Dude. It's exciting, right? I'm a fan of it.

Taite Westendorf:
If you're getting mad loot, and you get to do the peak of what our profession is, like hell fucking yeah.

Bassel Khalaf:
To be able to just, I don't want to say dumb down the facts, but to humanize the facts to make it something that's palatable for somebody who doesn't know the law and say, Here's why this is a problem. Here's why it's not a problem. Here's why this evidence is valid. Here's why it's not. I think anybody would benefit from that. You have a lawyer in the courtroom and be like, Oh, you know, we usually do this routinely. And we know which way it's gonna go. But when you explain it to just citizens of the community, suddenly it becomes a thing. And now there's almost this next level of accountability, where it's like...We had our last jury trial, I'm not gonna tell the war story too much. But you know, the judge kind of...

Taite Westendorf:
We are so fucking sweet.

Bassel Khalaf:
That was a dope ass jury result.

Stephen Pfeiffer:
I followed that case.

Bassel Khalaf:
It's the one where we called the officer a liar. Anyways, the judge called us up, and he's like, how did you get away with that bullshit? And I was like, because it's not bullshit. You know, it's a valid concern that we have that maybe you didn't have. I mean, jury trials, they've got to be the most pure form of law where it's we're not talking this foreign language. We're not talking this secret society stuff. This is why your community should or should not punish this thing. And it's such a beautiful thing to get in the groove and to spar with a prosecutor. Did you practice anywhere besides Virginia Beach?

 

Stephen Pfeiffer:
So it's a weird story. My last year in law school, after my second year, I got accepted for internship at the Maricopa County District Attorney's Office. So Phoenix, right. So I got to go out there. 

Taite Westendorf:
Is that where Sheriff Joe is?

Stephen Pfeiffer:
So Sheriff Joe is there. He was there at the time, right, crazy story. So I got selected to go out to Phoenix. And my best friend from Wisconsin, his mom and dad are retirees and they live in Sun City, which is literally a retirement city in outside of Phoenix where you have to be a certain age to live there. I had to stay with them for the summer, rent free, I just had to make sure I had old fashions ready for him when he got home and, you know, make sure I cooked dinner. But so I lived out there and I prosecuted cases, but they put me on the misdemeanor team and gangs repeat offender bureau. So I prosecuted probably 150 plus DUIs in Phoenix and misdemeanors as an intern. And Phoenix let me do two jury trials. I had to do two jury trials. I was first chair of two juries before I was ever a real lawyer. And that's really cool. So I got that really cool prosecutorial experience before I became a lawyer and defense attorney. I got offered a job, I accepted it. And then my wife and I got married going into our third year and we decided Virginia Beach is our home. So I turned down the job, stayed here, and I became a defense attorney.

Bassel Khalaf:
I think the Virginia Beach prosecutor's office, we've said before, I think Colin Stolle does a good job. I don't want to say it's the devil you know versus the devil you don't. But when you're fighting prosecutors all day, it's hard to really just say we love these prosecutors. But honestly, we practice in other cities. I'm not gonna say Chesapeake. Chesapeake. But you know, anyway, Virginia Beach does a good job of sort of balancing the just results. They do a good job of factoring in everything where I'm at the end, I'm proud to be a citizen of Virginia Beach. And I think the DUI team does a very good job. Jason Kowalski.

Taite Westendorf:
I'm really glad that my my diplomatic colleague here didn't burn any bridges with any of the cities where we practice in Hampton Roads. Well done. But that's a great question. And if you want to just duck it, tell me let me duck it because it's gonna hurt my bottom line. But are there certain cities that you like to practice in versus like to avoid practicing in?

Stephen Pfeiffer:
Again, I don't duck tough questions. I always say that Virginia Beach is a fantastic place to practice law. If you're part of the system and you're in the system. I don't think it's probably a great place to practice if you come here and not aware of like, how collegial we are. I love when the circuit court judges say I wish the domestic bar would act like the defense and the prosecution bar when it comes here because these guys can be in a hot fight in court, but it's I'm going to have a beer together afterwards and laugh it off. I don't experience that in other jurisdictions. When I go to Chesapeake, I feel like I'm the devil. Literally I go there...

Bassel Khalaf:
Maybe it should be burned to the ground.

Stephen Pfeiffer:
The judges are super cool. They've got a great bench The GDC bench in Chesapeake. Cool bench, great people, really love the judges out there. But honestly, I don't enjoy practicing in Chesapeake at all. Because I feel like there's some good prosecutors over there that use good discretion and are really good. But the general policy is No.

Bassel Khalaf:
Yes, to be combative.

Stephen Pfeiffer:
Everything for every reason for any reason whatsoever because we can.

Bassel Khalaf:
Because we can and because I think people would appreciate that we hate you for being a defense attorney and defending the Constitution, all this type of stuff. But what I was getting...

Taite Westendorf:
Well, I think a lot of those people, it's just marching orders from the top.

Stephen Pfeiffer:
No, agreed, agreed. A lot of a lot of the prosecutors are really great people and I love working with them. I just think they're bound by policies in the Chesapeake in particular. Which you express your clear disdain for Chesapeake. I will say it more subtly.

Bassel Khalaf:
They can get blown off the map. 

Stephen Pfeiffer:
I will say that the policies of that office are not, in my professional opinion, favorable for seeking true justice.

Bassel Khalaf:
I agree. There we go. That's beautiful. 

Taite Westendorf:
Well said. 

Stephen Pfeiffer:
Justice isn't always finding someone guilty. It's finding a middle ground sometimes.

Bassel Khalaf:
The only reason I brought that up is I was kind of hyping the Virginia Beach prosecutor team. And I'm not trying to do that just to get brownie points with them. Wendy Alexander, you my girl, though. And you one of the best trial attorneys there. You're looking so good. Anyways, all that aside, what I was saying is with the judge, the jury thing, you know, there's this thing where we say, okay, we put a jury trial on The jury has to decide on a sentence, and they've got no guidance. And now maybe they're gonna have more guidance, all that stuff. But we've had prosecutors in Virginia Beach who have done our job for us. And they said, You know what, this guy opted for is a constitutional right, a jury trial. He lost, and I am the person who actually knows what he should get. And he should not be penalized for exercising that right. And I've appreciated the shit out of that. It's one of those things where that should be this, you know, source of pride for a prosecutor who can get up there and say, This defense attorney gave me hell, he made me fight. He made me put this trial on he made me drag all these witnesses in and pisses me off. But, you know, who knows how much say his client had in it, because the client is always the person who has the say, and we ultimately, but you never know. I mean, I fancy myself as a mofo who doesn't put pressure on people to plead or not plead. I tell them here, I'm your advisor, plenty of guilty people get found innocent, plenty of not guilty people get found guilty. And it's just this mush of whatever. And here, I'm going to give you the real facts and let you make an informed decision. Because you're an adult. And it's beautiful to have another person in the courtroom, who's not on the jury. And it's, you know, my argument and the prosecutor comes in and backs it up and says, You know what, ego aside, this is the right result. That's the type of stuff I love. And I think that's one of those things where while we have these wild west juries where they could put on a DUI case where like you said, you might get three months or something silly. And if there's a felony element to it. Suddenly, you might get five years. And it's crazy. It's complete randomness. But I do appreciate when a prosecutor can step in and pursue justice. I'm not talking about you Chesapeake.

Stephen Pfeiffer:
Yeah, Virginia  Beachdoes a great job of that. Honestly, I respect Norfolk's office too. I've had a lot of DUIs over there, their DUI team gets involved. They're very reasonable. They'll listen, especially if you establish credibility that you know what you're doing, you're honest, and they can trust you. That's a big deal. Let's be honest, just like people complain about the police. A lot of shady ass attorneys are out there right now.

Bassel Khalaf:
That's a fair point.

Stephen Pfeiffer:
We do. So the credibility that you have with the people you're dealing with makes a huge difference.

Taite Westendorf:
Roger, everybody knows that shady shit you've been up to. 

Bassel Khalaf:
You dirty dog.

Stephen Pfeiffer:
That's just cold guys. Roger, you're an angel. 

Taite Westendorf:
He really is by the way. We only give him shit because he is the most honest person I've ever known.

Bassel Khalaf:
Have you ever looked at a guy and been like yeah, your butt is banging? Roger has a nice butt.

Taite Westendorf:
That's no doubt. I know we're getting off subject but he wears very tight pants and everybody likes it.

Stephen Pfeiffer:
I have no comment on that.

Bassel Khalaf:
What do you think of Roger's butt by the way?

Taite Westendorf:
You said you wouldn't duck questions.

Stephen Pfeiffer:
I have never looked at Roger's butt, but if you bring me back on a future episode, I will check it out and come back and report back. So with that said, the rapport you have with the prosecutor in certain jurisdictions, if they respect you and know you're honest, you're good at what you do. That's gonna go a long way. And Norfolk does a good job with that, too. They respect if you know what you're doing, and you can find a good result. There's a lot of jurisdictions here that are pretty good about that. Virginia Beach is a good place to work, man, overall, it's a good place. But it sucks for us because the cops are really good at what they do. Right. And the prosecutors are really good at what they do. But we all make the system better because we push each other.

Bassel Khalaf:
We started with this as being a DUI thing. We start talking about Roger's butt. Is there  something specific that we're missing? We could go on with DUIs. There's always some topics, you can talk about field sobriety tests for...

Taite Westendorf:
You could have a 20 part one hour series.

Bassel Khalaf:
I'm trying to make sure there's nothing we're missing here specific. DUI is one of the weird things, and we do blog posts you know, just to get engagement with our website and all that type of stuff. But it's always hard because you're like, Alright, one of the fun things to put is if I've been drinking and I drive, how do I avoid the DUI? And that's one of those questions people want to know the answer to, but you're kind of like, don't drive drunk, Uber. It's one of those things where there's an honest answer. And that is an honest answer. But there's a more honest answer, which is like, I know what you're asking me and let me talk to you about it. And then you start talking about, alright, am I gonna blow in the PBT? Am I gonna do the field sobriety tests? Am I gonna blah, blah, blah. It's just one of those loaded situations where I could see giving amazing advice. And then having somebody plow into my wife. Not plowing into my wife, it sounds horrible, into my wife's car while she's driving. 

Taite Westendorf:
Not another area of her body? 

Bassel Khalaf:
No, nowhere else at all. But, you know, it becomes a tragedy more than the other thing that Taite was just talking about. So you know, DUI is such a weird thing, because it's loaded, it's vibrant, it's malleable, it's morphing and evolving, and all that type of stuff. I mean, imagine if anybody comes up to you and says, Hey, I frequently drive drunk, the first thing you're gonna say is get help, catch an Uber, get the Uber app, blah, blah, blah, all that stuff. But then at some point, you know, if they say, well, I want you to go above and beyond that, and just realize that I'm that guy. And what do I do? I mean, is that something you feel? Or is that just a little too funky?

Stephen Pfeiffer:
You know, again, I have kids in this community and you have kids in this community, I don't want them driving drunk. I try to tell people that there are services out there. We don't do a good job as a community telling the public about it. We have the green ticket at the oceanfront. 

Bassel Khalaf:
What's that?

Stephen Pfeiffer:
Exactly. What's that? We should talk to Michael Berlucchi about that, by the way, and get it publicized more. It cuts into my business, but for society, we want more, right? What happens is if you've drank too much alcohol at the oceanfront, right, and your car is in the public parking lots, you can go and ask, I think a police officer, it's a police officer or a parking attendant there and say, Listen, I drank too much. Can I get a green ticket? And they'll put a green ticket in your car and they won't tow your car. Because I don't know about you guys, but for me, I'd so be like, dude, I was just trying to move my car so I didn't get towed. And I was gonna say I'm literally staying at the hotel right down the street. Don't you do it. He was trying to give me some alcohol I did not want to have.

Bassel Khalaf:
Tequila.

Stephen Pfeiffer:
But the green ticket is a wonderful, wonderful thing, because it will prevent people from driving drunk, sleep in the car, and potentially getting caught for this weird, nuanced operation issue we have for DUI. So better publicizing the green ticket. Ask for that when you're down at the ocean front. And don't ask for it like a jerk and get a drunk in public charge. Be respectful, right.

Taite Westendorf:
Yeah, it's a weird scenario we find ourselves in because all of us as citizens of Virginia Beach, we want this to be the safest, the most wonderful community that it could possibly be. So we want to discourage people from drunk driving. And like you said, if there's public policy options, where we can encourage people to not drunk drive or maybe even subsidize not drunk driving, I'd be in favor of that. But the reality is, I don't think you're in any danger with your business, because human nature is, even if those options are available, people ain't gonna do it. Have you ever thought about, Conan O'Brien used to have that in the year 2000 thing? Let's say 10 years from now, self driving cars are a thing. Is that an existential threat to DUI attorneys?

Stephen Pfeiffer:
So I've been asked that question for the last 10 years. Like hey, self driving cars are coming. They are here. I don't really think it is. Because first of all, people are by nature, vain and stubborn. Right? They're like, I got this. I don't need to do self driving car and take me home. I got this, and they're gonna take control the car and they're gonna drive. Alright, people do that. Going back to Devil's Advocate, vanity's my favorite sin. So you go back to it, people are going to do that. And then alcohol again, the first thing alcohol attacks is your sense of good judgment and long term consequences from decision making, right? So you're like, I got this, I can drive. There's no consequence long term. Well, we know you get pulled over. There's lots of consequences. So I don't think it's going to have a tremendous impact. Honestly, in Virginia Beach, no disrespect to our city council and everyone else. We have a crap public transportation system. So people really don't have the opportunity to get around easily. 

 


 

Taite Westendorf:
You don't like the trolley? 

Stephen Pfeiffer:
The trolley is wonderful if you're a guest staying here traveling from one hotel to the other but if you live in our city of Virginia Beach, there is really no good mechanism.

Bassel Khalaf:
We were too soft on Berlucchi. 

Taite Westendorf:
Berlucchi, get your ass back in here. We got questions.

Stephen Pfeiffer:
I'm joining Berlucchi. You better watch out. But honestly, I like the guy.

Taite Westendorf:
I got your sign on my lawn. We actually have another one. Do you have a sign on your lawn for Berlucchi, because we got one.

Stephen Pfeiffer:
I put no signs on my lawn because I don't really have a front lawn. My property is kind of hidden back on a long driveway. You don't see it. So I don't put signs in my front yard. 
Let me just say that WK, I think we consider ourselves pretty politically independent. Berlucchi, I think is of the same mindset. He's a good dude. Common sense, common ground, common solutions. He's the kind of guy that can move our city forward. So Mike Berlucchi, if you're listening, he's the kind of guy you want to vote for.

Bassel Khalaf:
I love you. 

Stephen Pfeiffer:
So he's endorsed by WK law. I don't often say who I am voting for. But I would say unequivocally, I would vote for Michael, because I think he's a man of integrity. I think he cares about the future of the city. And he's willing to get engaged in topics that he may not agree with, but he'll listen to you, like a wise judge would do. Open minded, humbly, and say, All right, I'll change my opinion on it. 

Taite Westendorf:
Exactly. Where are we as a society when we can't be civil to one another? We have our tribes and you scream at one another on social media. It's twisted, that's no way to run a society.

Bassel Khalaf:
I was mean to Mitch Mcconnell, I'm sorry. 

Taite Westendorf:
Mitch McConnell sucks.

Stephen Pfeiffer:
You were mean to Chesapeake too. Are you going to apologize to Chesapeake?

Bassel Khalaf:
No. Chesapeake needs to internally look at themselves. Are we done with DUIs?

Taite Westendorf:
We've hit on a lot of substantive stuff. So why don't we move on to the more frivolous stuff which is 80s and 90s movies.

Bassel Khalaf:
Steven, so what is the best movie ever?

Taite Westendorf:
Wow, that's tough. We could separate it by genre.

Stephen Pfeiffer:
That's right Taite. Give me a genre. Your best dramatic movie of all time, unequivocally Braveheart.

Taite Westendorf:
It's hard to argue with that. I love Braveheart.

Stephen Pfeiffer:
I mean, you've got the self sacrificial protagonist, right. William Wallace, who comes from the bottom. You know, he's a scrapper who loses the love of his life and takes a noble cause and basically flips off the power right?

Taite Westendorf:
Right. That movie is so infinitely entertaining. It's got to be in my top 10, top 20 minimum. I love that freakin movie. It's a movie that's caught a little bit of flack over the years. There's the scene where Longshanks throws the gay lover out the window that people have thought is a non-woke moment and there's also been some criticism for just being generally historically inaccurate. To which I respond, but the movie is fucking incredibly entertaining.

Stephen Pfeiffer:
We don't have to be woke, we don't have to be historically accurate to have entertainment. We can be in any genre, any political thought, in any orientation we have whatsoever, we can find beauty in any artistic movement right?

Bassel Khalaf:
How about this? Top five movies is pretty broad.

Taite Westendorf:
I'm not done. I'm not done. Mel Gibson is a freakin ridiculously good director. Apocalypto, freaking phenomenal.

Stephen Pfeiffer:
Underrated movie

Taite Westendorf:
Even The Passion of the Christ, I know is a controversial movie. But he's a very powerful director. Hacksaw Ridge which came out recently, phenomenal movie. Mel Gibson's an amazing director. 

Stephen Pfeiffer:
I put Mel Gibson and Clint Eastwood as two underrated directors. I think they both come from the acting background but but produce powerful movies. 

Taite Westendorf:
Dude, Unforgiven is right up there with my favorite flicks. 

Stephen Pfeiffer:
Incredible, incredible. 

Bassel Khalaf:
I could do more of favorite 80 scenes and most of them would be Rocky. Rocky 3. Mr. T at the press conference. Hey woman, oh you want a real man? Like that to me is a good cinematic...

Taite Westendorf:
That was probably a Mr. T ad lib and it's amazing.

Stephen Pfeiffer:
It is amazing. Does he even have a script in any movies other than hey, be Mr. T?

Taite Westendorf:
Let me tell you when I was a kid, there was Mr. T cereal. And Mr. T cereal consisted of little flakes that were shaped like M's, R's, and T's. I fucking loved it. 

Stephen Pfeiffer:
Marshmallows too, right?

Taite Westendorf:
There may have been marshmallows. But the Creed movies, are those canon in the the Rocky Balboa franchise?

Stephen Pfeiffer:
I would view the Creed movies as kind of like the church views St. Thomas Aquinas the Gospel of St. Thomas right. It's not gospel. It is not that and this is where it is it outside but everyone else was that goes Yep, it's kind of connected right? Council of Nicea right. It wasn't it wasn't approved by the Council but it's good. It's a good flick.

Taite Westendorf:
And just to let everybody know the Rocky saga has gotten pretty broad now. We had Rocky one through five then we had Rocky Balboa. Now we've had Creed one and two. So we're talking about eight movies.

Bassel Khalaf:
So what's the worst?

Taite Westendorf:
Five. Tommy Gunn, it's down there.

Stephen Pfeiffer:
Bam. Right there. 100% agree Tommy Gunn. It was it was a stretch. It was painful to watch but I watched it because I love Rocky. 

Bassel Khalaf:
I'll say this. I remember I played soccer growing up and I'd have a big game, the state championship. And then I'd watch Rocky four and that has nothing to do with soccer. But then like when Rocky punches Drago and it was like the Russian's cut, I was like, oh man, I'm going to go play soccer which has nothing to do with this. But I think every kid or every person from whatever generation, probably all similarly, has those moments and those movies and those scenes. So yeah, rather than movies to me, scenes mean a little bit more. I don't watch as many movies. You are both fucking movie nerds. 

Taite Westendorf:
Let me just say, the original Rocky won best picture. Best actor Stallone before they realized he wasn't acting. But it's a fantastic movie, but he wasn't acting.

Bassel Khalaf:
He wasn't acting?

Taite Westendorf:
No. He was just acting like Stallone. They thought he was a normal guy acting.

Stephen Pfeiffer:
It turns out it's his normal voice and his normal mentality.

Taite Westendorf:
Alright. For pure entertainment value for me. Part Four. You can't touch it, Drago. Somehow the idea to make a movie that was entirely musical montage, it might have sounded ridiculous, but it worked for me. It's phenomenal.

Stephen Pfeiffer:
Hearts on fire.

Bassel Khalaf:
Yeah. He turned the whole communist Soviet so whatever they're cheering for him.

Stephen Pfeiffer:
I went as Drago for Halloween one year by the way, I was great. 

Bassel Khalaf:
Do you have any pictures?

Taite Westendorf:
Since we're talking about Rocky four. So you're not going to even believe this. But I recently read that they're doing a recut of the movie that takes out Paulie's robot. What do you make of that? Because Paulie's robot was a very 80s creation. I'm imagining them pitching the movie and they're like Alright, this is what rich people of our era do, they have a robot serving...

Stephen Pfeiffer:
They grabbed onto Short Circuit right? They basically said Short Circuit was popular, let's go ahead and toss in a robot in here because rich people have robots. I don't think you ever touch the original. That you leave alone.

Taite Westendorf:
Yeah and I think the best example of that would be the Star Wars original trilogy. George Lucas keeps tinkering with it to very negative effect. 

Bassel Khalaf:
I thought Jar Jar Binks was dope. 

Taite Westendorf:
Oh shut the fuck up. 

Bassel Khalaf:
Roger Whitus is the Jar Jar Binks of attorneys.

Taite Westendorf:
I watch these movies, right? I watched the the Star Wars recuts. Somehow I scored some of the DVDs with the ones that had not had any of the alterations. But he would do things like add a burping frog in the foreground. This is what you want Lucas? Get the fuck out of here. All right, but back to Rocky. If I'm ranking them in order. Rocky Four, Rocky Three, then the original. Then I think I might go with...

Bassel Khalaf:
Five over two?

Taite Westendorf:
I like the Creed movies. I might go with Creed one then two. Then maybe Rocky two, Rocky Balboa, and then Rocky five.

Stephen Pfeiffer:
Rocky five is dead last. I think we all agree rocky five. So that's right.

Bassel Khalaf:
I agree 100%. We're kind of running out of time, and we're just gonna try and wrap this thing up but...

Taite Westendorf:
No, let's keep rolling. What do you think about Labyrinth man? What do you think about Fraggle Rock?

Stephen Pfeiffer:
Game on.

Bassel Khalaf:
Let's say you have a DUI client who does not listen to your advice. He's like, I want jury trial, blah. And you say okay fine, and you got to get amped right before the case. You're about to give an opening. You can't pound a couple shots because no respectable attorney would do that. But what is the song you're listening to either on the way up or right outside the attorney conference room?

Stephen Pfeiffer:
We're going song right? We're not going movies? Alright, so it's always one or two songs. One song was our college football walkout song in the tunnel.  Honestly a jury trial to me. The feeling I get before a jury trial was as close to the experience of going out on the field in college. Like that was the closest to the adrenaline rush. So for me Down WIth The Sickness.

Taite Westendorf:
Ooooh...ooh wah ah ah ah

Bassel Khalaf:
Can you do the opening real quick?

Stephen Pfeiffer:
It's just like, I can't go high enough on it, but I'd say Down With The Sickness, the opening 20 seconds that song...

Bassel Khalaf:
Who sings Down With The Sickness?

Stephen Pfeiffer:
Disturbed. Yeah, I only know that because I have to have that as a workout song because it goes back to my college days.

Bassel Khalaf:
Yeah. Taite loves Limp Bizkit when he's worried. ,

Taite Westendorf:
I will say back in the day, you take Taite 1997. Nookie was definitely on the rotation for pumping iron.

Stephen Pfeiffer:
That's fair. That's fair. So I would say Down With The Sickness would be one the first 20 seconds of it. Also, I don't know if it's the actual name of the song. It's Jay Z's. I just want to love. I'm a hustler baby.

Bassel Khalaf:
Yeah, Pharrell's on that.

Stephen Pfeiffer:
Yeah. The Neptunes.

Bassel Khalaf:
I'm a hustler baby.

Stephen Pfeiffer:
So that walkout song. That's another song that I think is a good motivational song walking out there.

Bassel Khalaf:
Yeah, I love that song. That's a good one. Hold on. Do you have any more on point?

Taite Westendorf:
We've covered a lot. We've covered Rocky, we've covered DUI.

Stephen Pfeiffer:
I actually had to ask you guys a question. I'm sorry.

Taite Westendorf:
Lay it on me. Let's flip the script.

Bassel Khalaf:
We've never been interviewed.

Stephen Pfeiffer:
An important question I need to ask first. I'll do it. I'll do a movie question.And then I will do a legal question. All right. 80s movie question. All right. I forgot the name, the duck movie.

Taite Westendorf:
Howard the Duck. Let me give you, let me give you a detailed analysis of Howard the Duck. 

Bassel Khalaf:
I'm gonna go pee because I don't know anything about Howard the Duck.

Taite Westendorf:
So, Howard the Duck was actually, George Lucas was affiliated with that movie. My family, we had a Commodore 64 computer and we bought Howard the Duck as a game on it. So I'm very familiar with Howard the Duck. Lea Thompson from Back to the Future fame...

Stephen Pfeiffer:
To be clear to listeners of this podcast. I did not prep him at all for this question. This is off the cuff.

Taite Westendorf:
I'm very familiar with Howard the Duck I could sit here probably for an hour and a half and break down Howard the Duck. How a studio ever greenlit Howard the Duck? I'll never understand. It's actually a Marvel property.

Stephen Pfeiffer:
It shows up in the end credits.

Taite Westendorf:
Howard the Duck has a lot of highly sexualized scenes. There are duck breasts that are shown. They're very similar to human breasts, although mysteriously feathery but human like. Like it doesn't make any sense. Howard lives in an alternative duck world where basically everything is the same only with duck puns for names. So instead of like, you know, WC Fields, we have W Duck Fields. Things like that. It was ridiculous. There's a very disturbing scene where he and Lea Thompson are...She's a rock musician in sort of a girl band. And she's evidently attracted to Howard in a sexual manner, despite him being a duck. It's very clear. And apparently the duck equivalent of an erection is his feathers start to spike on his head. And by the way, this was a children's movie. This is what children in the 1980s were exposed to. And this is why we're as fucked up as we are.

Stephen Pfeiffer:
It explains a lot about our society today.

Taite Westendorf:
Anyway, so that's my answer on Howard the Duck.

Stephen Pfeiffer:
The question is thumbs up or thumbs down?

Taite Westendorf:
Oh, it's a major thumbs up in the sense that it's a cultural artifact. Yeah. If you're an archaeologist trying to dig into what did the 1980s mean, and how did people develop from that era? You would want Howard the Duck. Tim Robbins, a very young Tim Robbins....

Bassel Khalaf:
Howard the Duck was in Guardians of the Galaxy.

Stephen Pfeiffer:
You see when you stepped out for your potty break, he actually already covered that topic. So Taite I will say Mad props for your 80s movie knowledge. By the way, I'm a huge 80s fan, that's one of reasons I love your podcast is because your 80s movie and early 90s movies. You know, references are really spot on.

Bassel Khalaf:
I appreciate that. We got to get you on the road. It is 12:45. I'm gonna do one last topic.

Taite Westendorf:
Nobody's listening anymore.

Stephen Pfeiffer:
Realistically, is anyone listening? Please text us or email us at this point. 

Bassel Khalaf:
At this point, all the children are in bed. It's just you ladies. So it's hard because you know, we're all attorneys. And we always sit with other attorneys and you talk war stories and stuff like that. So you can't really talk about specific attorney client communications, all that type of stuff. And you probably don't want to put a client on blast or anything weird like that. But do you have a couple of just DUI trials where those were the ones where it's like, I went home and you know, I just grabbed Shelly, because I was so confident in myself because I won that one. And we made sweet love under the banyan trees or anything like that, or Is that too much?

Stephen Pfeiffer:
It probably didn't happen that way. I'm gonna put that out there. But I will say I do have some. I do have some favorite stories. One of which was a different jurisdiction. It was not Chesapeake though. But it was Hampton Roads. It was when body cams were early on, this is early in the body cam game, right. So I'm talking like 10 years ago, this jurisdiction had some of the first body cams. And my client comes to my office like Mr. Pfeiffer, I promise you I wasn't drunk. He's like, I had a few drinks. But I was not drunk. I said, all right, all right, cool, cool. There's no field sobriety tests. The notes were really weird. It didn't say they didn't do a field sobriety test, but it said the client was falling over a lot. And I found they actually have body cams. And I'm like, wow, this is going to be incredible. A body cam experience, all right. And I watched the body cam, and my client comes out and he's like, if I was drunk, would I be able to do this? And he went into the Karate Kid.

Taite Westendorf:
The crane?

Stephen Pfeiffer:
Full on crane pose, and and fell and hit his face against the squad car and busted his nose and started bleeding everywhere. And I was like, Whoa, stop, stop, stop, stop, stop. And he said if I was drunk, could I do this? And he tried to do like a roundhouse kick, but ended up kicking off the rearview mirror of the officer's car. And it was just pure comedic gold. I was like, so you weren't drunk? I may have underestimated that. So we went to court right? Even better story. We go to this hypothetical courthouse right. I played it live in the courtroom full of people and all that. And it was so embarrassing. The whole courtroom is laughing the entire time at this individual. This is like forever ago There's no more embarrassing thing you can do to a client than what I just did in court here today. And the judge to his credit said you know what? No criminal history, and that judge went outside the normal realm and really what you should do as a judge, frankly, they shouldn't have done this. But the judge said, I'm going to reduce this to reckless driving. I think you've learned your lesson here today being laughed at by an entire courtroom.

Taite Westendorf:
If you're not familiar with it, that's called the Daniel LaRusso defense.

Stephen Pfeiffer:
Yeah, it's brilliant. All right, so that's one of my favorite DUI war stories ever though. Like literally the guy was almost crying in court because he was being laughed at by a courtroom of a hundred plys people. And the judge showed mercy based upon he felt like he learned his lesson from being destroyed in front of the open courtroom.

Bassel Khalaf:
It's a good human element sort of thing. This is why we need it. 

Stephen Pfeiffer:
To be clear, that client went on to have a very successful future. Never ever offended nothing like that whatsoever, too. For what it's worth.

Taite Westendorf:
We've covered Daniel LaRusso, we've covered John Kreese, we've covered Miyagi and, Pat Morita, we've covered Clubber Lang...

Stephen Pfeiffer:
Howard the Duck

Taite Westendorf:
We covered Howard the Duck. These are the most important things any citizen needs to know about DUIs.

Bassel Khalaf:
It is, but I think there's one thing we do need to cover. Stephen, I don't even ask you if you knew this guy. I think we need to cover Danny Goode.

Taite Westendorf:
That's a good one to throw out there.

Bassel Khalaf:
We can end on that unless you've got something dope to say.

Stephen Pfeiffer:
Nothing dope.

Taite Westendorf:
So a former public defender colleague of ours who was an incredibly sweet man. He was the first chair on the first jury that I ever did. A gentleman named Danny Goode, who was really a legend locally. I put up a Facebook post the other day, probably the best stories that I have, as far as closing arguments all revolve around Danny. He was one of the most entertaining characters you could have ever met. 

Bassel Khalaf:
He's a real one. If you wanted to have somebody on the podcast, it probably be Danny, no offense to you. But you know.

Taite Westendorf:
I don't want to go on for the next 20 minutes. But I'm deeply saddened that Danny passed a few days ago, his memorial service is actually going to be on Sunday. And he's an incredible guy. And he was an incredible guy. And I don't know, I don't even know how to react to...

Bassel Khalaf:
I knew him, maybe I had about a three year overlap in the public defender's office, he was always very kind to me. And the stories are amazing. You know, some of them were just either super funny or whatever. But he tried things, you know, he put on cases and he would try tactics that hadn't been tried before. And to me, I always appreciate somebody thinking outside of the box. He was a drummer, I used to play in bands. And you know, I talked music with him a little bit. And it was this sort of weird thing where he was going out, and I was coming in. And to see that he's passed away is pretty sad. We were at his going away party from the public defender's office. I met his daughter, his wife was there. It's a sad thing, because I know he was just kind of carrying his family on his back. And he's now gone. 

Taite Westendorf:
There's so many Danny stories that I don't even know which one to pick from. But so he has this closing argument in a case. And he's trying to illustrate the point that what the Commonwealth promised in their opening statement is not what they delivered over the course of the case. And so to try to illustrate that point, he starts talking about this is my grandpappy's watch. Take a look at it, the filigree work is perfect. And the craftsmanship is incredible. This is the kind of thing that doesn't exist in this country anymore. And he goes on and on explaining how this watch is just this work of art. And he puts it up on front of the jury box, and he says this is what the Commonwealth promised to you. And after probably 10 minutes of describing the immaculate craftsmanship that went into this watch, he says and this is what they gave you and he slaps up a broken Casio. And it sounds like a really ridiculous gimmick. But I love defense attorneys who are willing to go out on that limb and do things a little bit differently. And Danny was one of those dudes, and I'm so lucky that I knew him. And I was so entertained by so many things that he did. And he had so many clients that benefited from his wisdom and his creativity. And he's a dude that will be very much missed in Virginia Beach.

Bassel Khalaf:
Rest in peace, Danny. This one's for you. So hey, we definitely thank Stephen Pfeiffer for coming through. He's a good, good dude. He knows his DUIs front and back. We would say hire us but if you don't hire him, so you know, it's one of those weird awkward things.

Taite Westendorf:
He super knows DUIs, probably better than we do, but we're good too.

Bassel Khalaf:
We'll give you half off. I don't even know that we cut into similar markets to be honest. He's an upper crust kind of guy. If Governor Northam gets a DUI or President Trump or a future President Biden get a DUI, Stephen Pfeiffer is going to be your guy. But if their assistants get a DUI, come to us because we will definitely treat them right. Stephen Pfeiffer, he's a good dude. We see him, he's always well prepared. He knows the judges well. Not to say he has any special juice with them because it's not actually a thing, but he'll navigate you through the process very competently. Stephen, before we cut this off, this is the first podcast where we kind of started pushing two hours. And that's sort of a testament to how much fun we've been having. We talked DUIs. We talked at movies. We talked all kinds of shit. And it was a lot of fun. Do you got anything else?

Stephen Pfeiffer:
No, just to your listeners. Keep listening. These guys have fun at what they do. They have a perfect marriage of sarcasm and humor. And great legal knowledge. And it's helpful to learn about the system in a fun way. So, spread the word. This is a great podcast. These are great people. And just to remember that the justice system is there for a reason, you have a voice in it. People who care about the justice system, get engaged, learn about it, and this is one way to do it. So thanks for letting me be a part of your show. And to many more great shows.

Bassel Khalaf:
We had a great time and we'll maybe have you back as it develops.