Attacking and Defending Drunk Driving Tests

by Don Bartell, Mary Catherine McMurray,  and Anne ImObersteg

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

1. 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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

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Related Titles:

Defending Drinking Drivers

California Drunk Driving Law