Under federal law you cannot stop a vehicle or detain a subject because of their ethnicity. Additionally almost every state in the union has laws that prevent racial profiling in order to justify the traffic stop or subsequent arrest.
If the stop was pretextual meaning that it was based upon the ethnicity of the defendant the case would more likely be thrown out, dismissed at a motion to suppress.
However, if the comments were made in bad taste while the subject was detained as they attempted to determine what to arrest him with that may not be the basis of a motion to suppress but may be a complaint against the arresting officer and or agency.
Either way I would hire an experienced DUI/criminal defense lawyer in your town to assist him with his defense.
If the reason for the stop was race or ethnicity this could be a basis for throwing the case out. Comments, alone, are not enough.
Contact a DUI/DWI lawyer there and get an opinion based upon all the facts as well as the local law.
Do not file any complaints with the police department until talking with a local lawyer.
Confidential information should not be disclosed in this Internet forum. I am a Wisconsin lawyer. The laws in each jurisdiction can be very different. I cannot give legal advice over the internet nor can I establish an attorney client relationship with you. You should NOT assume or otherwise conclude that there is an attorney -client relationship between any reader and this writer or his firm. These comments are only guideposts. They are not subject to any privilege protections. Indeed, these internet communications are neither privileged nor confidential. Accordingly, those using this form of communication need to be guarded in what they write. Because of the nature of these communications the information is general only and should not be relied upon in any specific case. This internet site is public forum, where the communications are not confidential or privileged. There may very well be merit to your defense or position in this type of situation. However, there are hardly sufficient details for an attorney to provide you with some path to follow. It is imperative that ALL of the facts in a particular situation be examined. No conclusion can be drawn from the communication that you have provided. There are some matters that are just better handled by an attorney familiar with the procedures of the courts in your area. Most, if not all, legal matters should not be handled via internet communication. At best, the responders on this site can give you a few hints and guidance. To deal with a legal problem, nothing is better than to consult with a lawyer who will give you some time and advice. If you cannot afford an attorney, there should be agencies in your area that can provide discounted, or even free, legal services.
What you allege and what you can prove are always two completely different things.
As my colleagues have stated it is illegal/unconstitutional to stop a car/make an arrest based upon race. You are saying this occurred POST arrest so that is NOT profiling.
Racial profiling refers to the use of an individual’s race or ethnicity by law enforcement personnel as a key factor in deciding whether to "engage" in enforcement (e.g. make a traffic stop or make an arrest).
If he is stopped and arrested with PC, probable cause, and has valid charges then having the cops make jokes ain't going to do it (ie. get it all dismissed). Discussing what to specifically charge is a normal police standard of conduct.
Does racial profiling (pre stop and arrest) happen? yes!
Proving it in that context is generally hard, your word or the defendant's word against the police. If you have it "clearly" on video (btw snide remarks/jokes are not profiling) then it can be brought up.
Most judges are NOT going to throw a valid case out (dismiss) because the cops joked about someone's ethnicity post (valid stop/arrest). At least not in NY, PA, NJ, or FL (all states I am licensed in), maybe in Hurricane, WV they are more sensitive to racial profiling.
Talk to a WV DUI lawyer, I am not licensed in WV.
Lawrence (Larry) Newman, D.C., J.D. Attorney at Law Doctor of Chiropractic Licensed in NY, PA, NJ, & FL http://www.ithacainjurylawyer.com http://www.ithacadwi.com The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Dr. Newman strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.
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