How to overcome the
presumption
of guilt in DUI trials
Voir dire strategies, cross-examination questions, and science to help you
convince the jury that your DUI case deserves an honest review
Question-by-question and argument-by-argument, Attacking and Supporting
Drunk Driving Tests explains how to soften resolute juries by picking
apart unyielding police reports and bulletproof lab reports.
These courtroom-proven strategies are supported with understandable science
in a coordinated trial attack that will leave the prosecution wondering how
its formerly solid case became so weak.
This winning approach to DUI trials is presented step-by-step, and is
heavily-supported with pattern arguments, model cross-examinations, case
law, science, and motions. The text is filled with helpful suggestions.
13 practice tips from the book
Pretrial
tactics
-
Will your case be tried? “To
determine the prosecution’s intentions, see if the prosecutor makes
extensive notes following a pretrial conference. If so, it is a fair
assumption that there is something unusual – good or bad – about the
case. The tone and nature of the prosecutor's comments at the next
pretrial hearing will often be predicated on the notes written from the
previous proceeding. A hard line suggests the notes were not good for
the defense; a more conciliatory position by the prosecutor reveals that
they think they have problems.” §5:13
-
Administrative hearings. “The
best investigative tool in a criminal drunk driving case is the
administrative license suspension hearing. Police officers can be
interrogated, calibration records subpoenaed, arrest reports
scrutinized, and defenses explored. Furthermore, all of this can be
conducted with nary a prosecutor in sight. No other criminal charge is
accompanied by such an opportunity to conduct an investigation.”
§5:20
-
Have your motion heard late on the
calendar. “You will see how the judge analyzes any motions that are
heard before your motion is argued, and observe the prosecutor in
action. Experience also shows that if judges are going to rule for the
defense, many of them prefer not to do so in front of a courtroom full
of lawyers. Few judges want to be tagged with being soft on crime. Be
polite, and allow your motion to go last.” §4:50
Cross
examination
-
Misleading number. “Experience
has shown that the weight listed on the average person's driver's
license is much less than the person's actual current weight. This
phenomenon frequently leads the prosecution's expert to make blood
actual calculations that overstate the actual alcohol level. In turn,
this presents an opportunity for the defense to show the jury that the
defense case is based upon more precise information.” §6:50
-
Poor field test results. “Reduce
damning field sobriety performance by contrasting it to something more
negative that did not actually take place. The sixty-foot yacht does not
look so big next to a battleship. For example, if the defendant stumbled
during the walk the line test you might ask the officer the following
questions: “Mr. Jones did not put his hand down?” “He did not grab you
for support?” “He did not skin his knee?” “He did not fall down?” “He
simply had a misstep?” This reduction technique at least allows you to
do something with bad evidence.” §8:31
-
Angles of attack. “There are
five general cross-contamination dynamics to employ in challenging a
field sobriety test: (1) The testing area is sloped, (2) Lack of a
baseline….” §8:33
Attacking
breath tests
-
Use of Widmark in trial.
“Although few defense lawyers welcome the use of these calculations, it
is during the attack on the prosecution expert’s Widmark calculations
that the defense may almost always count on gaining ground. In fact, the
secret to winning drunk driving trials comes out during the attack on
Widmark calculations. Furthermore, Widmark calculations in breath
testing cases can sometimes result in a trap for the unwary
prosecutor….” §10:02
-
Keeping your defense secret.
“When you are invited into chambers before a drunk driving trial be
prepared to respond to the judge’s inquiry about what your defense is
going to be. One way to lessen the risk of the court trying to ferret
out of you the defense is by pretrial motions. Intelligent pretrial
motion work will impress the court that you are not wasting the court’s
time. If the court presses you for the specifics of your defense, you
must ultimately inform the court that….” §10:30
-
Exposing the charade. “The way
the Widmark computations are presented provides a unique opportunity for
the defense. Ask the state’s expert if he or she discussed the case with
the prosecutor before testifying. The answer is almost always yes. Then
ask if the two of them discussed the calculations determining the number
of drinks the defendant consumed. Again the answer is usually yes. Now
draw on the fact that the expert knew the answer to the prosecutor’s
drink calculation question before it was asked. Do this by asking
(telling) the expert that since the expert already knew the answer to
the question before it was asked, the drama staged by taking out the
calculator was nothing more than an unnecessary charade for the jury.
The following is a sample cross-examination….” §10:41
-
Testing the expert. Many experts
do not really have an expert understanding of Widmark’s work. What they
count on is that you do not have much of an understanding of the work
either. They presume that they can get away with making Widmark
calculations without discussing the limitations in the calculations, and
usually they do. You can expose imposters posing as experts on Widmark.
Ask the expert if ….” §10:42
-
Phase of absorption. “The actual difference between the BrAC and BAC during absorption can be
staggering. Actual venous BAC can be overestimated by more than 100% for
a significant amount of time after drinking stops. One study of four
individuals in the absorptive state found that their BrAC overestimated
their BAC by +230%, +190%, +60%, and +30%. [Simpson, G., Accuracy and
Precision of Breath Alcohol Measurements for Subjects in the Absorptive
State, Clin. Chem., 1987, Jun; 33(6):753-756, p. 753.]”
§11.70
Trial
strategy
-
A more effective approach.
“Watch an inexperienced attorney try a drunk driving case and you can
almost predict the questions the attorney will ask. Now we are going
to talk about field sobriety tests, the attorney exclaims. The more
experienced practitioner has learned through trials that a unified field
theory works much better. When counsel implements this approach, win or
lose, the opposing counsel often will fail to grasp the true reason why
their case became unexpectedly difficult.” §20.03
-
Emphasize the client’s cooperation.
“A good time to ask the arresting officer if the defendant was
cooperative is early on in your cross-examination. Often in the early
stages of cross-examination, before any blood has been spilt, police
officers will be more helpful with small bits of positive testimony for
the defense. The officers’ thinking seems to be that by conceding some
ostensibly inconsequential positive points they give the appearance of
being a neutral witness. Whatever the reason for the phenomena, it is
best to grab free points while the peace treaty is in effect. As the
trial wears on, neutrality is the first casualty.” §20.53
More than a test-attack manual
This
big book is a complete strategy, law, science, and forms guide containing
tactics and arguments found nowhere else. While it focuses on attacking
drunk driving tests, it also takes you step-by-step from discovery and
investigation through motion practice to trial. It includes:
Pattern
motions, with points and authorities
-
Suppressing all evidence from a stop for
weaving. §18:3
-
Suppressing a breath or blood test taken
after a PAS test. §18:4
-
Challenging a drunk driving checkpoint.
§18:7
-
Excluding evidence of tolerance.
§18:9
-
Introducing partition ratio evidence.
§18:11
-
Denial of choice of test. §18:13
-
Limiting the use of the horizontal gaze
nystagmus test. §18:15
Proven trial
tactics
-
What response should you give to a judge
who asks during the pretrial conference what is your defense? §20:50
-
What formulas should you know before you
go to court? §20:31
-
Why develop a time line? §20:20
-
What question should the defense ask
every time there are two police officers testifying in the case?
§20:99
-
What can you do to minimize the effects
of bad facts? §20:60
-
How can you have the client testify
without the client taking the stand? §20:51
-
Where in the trial can the defense give
a rebuttal statement? §20:75
Updated annually. ISBN
1-58012-116-0. Book Price: $119
A7 |
