The science of making objections in DUI cases entails more than knowing the evidence code. For the most part, lawyers need not master the entire Rules of Evidence to effectively try a DUI case. The hearsay exceptions for ancient writings and for family history rarely play a role in drunk driving cases – know them for the bar exam, but not for the real world of drunk driving trials.
A limited number of recurring objections visit the courtroom in drunk driving cases. Some have starring roles, others make only guest appearances. This limits what the lawyer usually has to know as far as the law of evidence pertains.
Here’s a quick-reference guide to common objections you may want to make at your next DUI trial, followed by a more in-depth look at each objection.
Voir dire questions must be for the purpose of eliciting information to challenge a juror for cause, or to help the lawyer decide if he or she should exercise a peremptory challenge.
Asking jurors to prejudge the evidence is improper. Also be wary during jury selection that peremptory challenges are not being made based upon race or sex. This violates the Fourteenth Amendment to the United States Constitution.
The purpose of the opening statement is to tell the jury how the evidence will unfold. An opening statement is not meant to be an advertising space to argue the case.
Of course, this caveat seems to have stopped almost no one in the history of law from endeavoring to argue the case during their opening statement. The objection you are likely to make in the opening statement is that the opposing attorney is arguing the case.
Examination of the Police Officer
Leading questions often abound during the direct examination of the police officer. So do questions that call for narrative responses by the police officer. These questions on direct and redirect examination are improper. Additional objections to look for when the police officer is testifying are whether the officer is exceeding the bounds of the officer’s expertise or speculating on the thoughts of the defendant.
Examination of the State’s Percipient Witnesses
For the most part, the prosecution does not present percipient witnesses other than police officers. However, it does happen, especially in cases involving accidents.
When the prosecution calls an ordinary witness to testify, watch for the use of leading questions. The prosecutor does not always have the time and access to thoroughly prepare these witnesses. The witnesses also do not necessarily know the answers the prosecutor wants them to give. This combination of events regularly results in the use of leading questions. Timely objections here can significantly stymie the examination.
Examination of the Phlebotomist
Look to see if the phlebotomist is qualified. More significantly, make sure the phlebotomist was qualified to take blood at the time your client’s sample was obtained. Finally, did the phlebotomist utilize the proper procedures in drawing the blood sample?
Examination of the State’s Expert Criminalist
Many state criminalists are not experts in field sobriety tests. A foundation objection and an objection that the witness is not qualified to render an opinion can be made if the witness does not have proper qualifications. In addition, do not allow the state’s expert to testify to hypotheticals that are not supported by the evidence (unless for some reason the testimony helps the defense). Also, remember that prior to being allowed to testify to a blood-alcohol test result, the state must first establish a proper chain of custody.
There is another recurring dynamic during the cross-examination of the state’s expert that may require an objection. This is when the expert is non-responsive. Expert witnesses understand that they know more about their field than the attorney usually does. When the attorney starts closing in, the expert frequently tries to shift the topic away with an answer to some ancillary topic. If the ancillary non-responsive answer is damaging, ask the court to strike the answer and admonish the jury not to consider the answer.
Cross-Examination of Defense Percipient Witnesses
Cross-examination of defense percipient witnesses often involves questions regarding the relationship between the witness and the defendant. This is a perfectly reasonable area of inquiry because a witness’s bias is always relevant. But sometimes the state’s attorney asks a defense percipient witness if they think their observations of the defendant’s sobriety are more accurate than the police officer’s. This line of questioning is objectionable as argumentative.
Cross-Examination of the Defense Toxicologist
Most defense toxicologists are experienced witnesses who are capable of protecting themselves during cross-examination. Because of this, it is not always necessary to object to argumentative questions. Argumentative questions tend to make the questioner look a little rude.
An objection that is needed is that the witness be allowed to answer the question. In drunk driving cases, prosecutors routinely interrupt expert witnesses and cut their answers off with another question. It seems they do not always like the answers.
The chief concern when the defendant is testifying is a question by the prosecutor regarding the defendant’s invocation of the defendant’s right to remain silent. The constitution prohibits the state from commenting on post-Miranda silence.
However, if the defendant testifies, the Supreme Court has permitted the prosecution to impeach the defendant with the defendant’s pre-arrest silence.
Prosecutors frequently do not allow the defendant time to fully answer their questions. Be prepared to object that the prosecutor is not allowing the witness to answer the question. Also, like defense percipient witnesses, the defendant may be asked to give an opinion that the police officer is lying or mistaken when the defendant and the officer’s views clash. This question is argumentative.
It is proper to object to statements in a closing argument that state facts that go beyond the record.
A prosecutor (or defense attorney, for that matter) cannot give their personal belief or vouch for the veracity of witnesses or the guilt or innocence of the defendant.
Neither side can misstate the evidence.
Appeals to the passions, prejudices, or emotions of the jurors are prohibited. There is, though, no bright-line test for this embargo. One common standard is that the prosecutor cannot ask the jury to imagine how they would feel if they were the victim.
The prosecutor cannot comment on either post-Miranda silence or post-arrest silence.
Comments on the defendant’s failure to testify are likewise prohibited.
Excerpted from the free eGuide Coordinated Attack in DUI Trials. Download the full eGuide for case citations to help support these objections, and proven trial tactics to win your next DUI case.
Donald Bartell, an attorney with nearly 30 years of experience and a frequent lecturer around California on DUI trial tactics, is the author Attacking and Defending Drunk Driving Tests. This popular book is a complete how-to guide to winning DUI cases at trial.