How the best lawyers consistently win DUI cases – Lesson 1

From Attacking and Defending Drunk Driving Tests by Donald Bartell

The challenge, the strategy, checklist

The defense of drunk driving cases is a substantially more intricate endeavor than prosecuting the charge. The main reasons for this are:

  • An enormous bias exists against people accused of drunk driving.

  • The government’s case is usually presented through the testimony of professional witnesses—witnesses who often know how to dress up the weakest case.

This makes the defense generally more of a challenge.

§20:02    The Inside Information

Experienced trial lawyers often do things based on instinct, and their instinct is honed through experience. This combination of instinct and experience gives them inside information on how to maximize their chances of success in trial.

That kind of experience is distilled and catalogued here, providing inside information on:

  • What response should you give to a judge who asks during the pretrial conference what is your defense? [See §20:50.]

  • What formulas should you know before you go to court? [See §20:31.]

  • Why develop a time line? [See §20:20.]

  • What question should the defense ask every time there are two police officers testifying in the case? [See §20:99.]

  • What can you do to minimize the effects of bad facts? [See §§20:60-20:62.]

  • How can you have the client testify without the client taking the stand? [See §§20:51 & 20:150.]

  • Where in the trial can the defense give a rebuttal statement? [See §20:75.]

  • Should the client take notes during trial? [See §20:152.]

  • Why take a look at the jury room before the start of trial? [See §20:168.]

  • What four jury instructions do you want to discuss in every case? [See §20:167.]

  • What techniques can the defense employ to hang a case? [See §20:168.]

§20:03    The Basic Problem

Drunk driving seminars can be invaluable. However, the presentations often address several different aspects of what occurs in a drunk driving trial (e.g., opening, direct, cross-examination), and leave people with the impression that the different parts of the trial are not related to each other.

Watch an inexperienced attorney try a drunk driving case and you can almost predict the questions the attorney will ask. The attorney will exclaim, “Now we are going to talk about field sobriety tests.” Like so many drunk driving seminar presentations, the attorney is segmenting the case into little parts. Similar to dining at a Las Vegasbuffet, each part of the case seems to be a separate cuisine.

The more experienced practitioner has learned that a unified field theory works best. When counsel implements this approach, the opposing counsel often will fail to grasp the true reason why the case had become unexpectedly difficult. A losing attorney often blames the defeat on ineffectual witnesses or a confused jury. However, the real confusion often lies in the presentation of the case. The failure to implement a coordinated attack or defense is often the cause.

To be compelling, the case needs cohesion. Cohesion differs from having a theory of the case. The theory of the case gives the jurors an emotional attachment to your case. It is a one or two sentence statement that jurors can give to their family and friends as to why they voted a certain way (e.g., “The government lab was run in a slapdash manner” or “The officer ignored the required breath testing procedures”).

A coordinated attack is the strategy used to give the case substance. If the theory of the case is the why jurors voted in a certain way, the coordinated attack is the how they managed to get there.

§20:04    The Basic Strategy

The basic strategy to coordinating the attack in a drunk driving case is twofold:

  • Make everyone understand that the guilt of the defendant is not a foregone conclusion.

  • Link each part of the case to the other parts of the case.

  • Keep ever-present the thought that cases are about what cases are about.

  • Jury Selection is the most important part of the case.

Establish that the case is not routine

Understanding that guilt is not a foregone conclusion is the glue that holds the coordinated attack together. It overlies every aspect of the case, including convincing yourself that the attack will succeed. If you cannot convince yourself, how convincing will you be before the jury?

The key to winning drunk driving trials is to convince the jury that the case is anything but a finished product. Let the jurors know that there is going to be a fight in the courtroom, and they are going to have front row seats. Only this atmosphere gives the defendant a chance.

PRACTICE TIP

Bring energy to case. Demonstrate to the jury your commitment by being prepared, knowledgeable and ready for the fight. Let the jury see you during a court recess working in the hallway preparing an exhibit, or going over your notes. Let them see the other attorney lounging around during these recesses. If the case breaks for the weekend, let it be known by one of your questions that you went back out to the scene again over the weekend (e.g., “Officer, when I went back out to the scene again this weekend I noticed … ”). If you give the case your attention, most jurors will give it theirs. The jurors will think: “If this attorney is fighting so hard for this client, there must be something there.” Make it a goal that due to your obvious exhaustive efforts, when the case is completed, the jurors will want to ask you for your card.

Link the parts

Constantly look for ways to link one part of the case to another. Like trusses tied together, linking the different parts of the case strengthens the overall case. Look for as many ways as possible to coordinate the attack—cross reference the evidence.

Seek to have at least two pieces of evidence to support any argument you are making. Three pieces of evidence are better than two, and four trump three. Keep in mind that you should prefer one good piece of evidence to three or four weak pieces of evidence. When initially outlining your case, consider making a list under each point you wish to make of the evidence you believe supports that point.

Thus, the performance on the field sobriety tests may help attack the breath tests because the performance on the field sobriety tests are inconsistent with the measured breath test results. The field sobriety tests in turn are consistent with what the defendant told the officer he had to drink.

PRACTICE TIP

If you find yourself with only one piece of evidence to support a point you wish to make, exercise caution about making this point the focal point of your case. If the jurors reject that piece of evidence, your case will likely be rejected as well. However, when you think you have only one piece of evidence supporting an issue, there is almost always some additional circumstantial evidence that helps prove the point. The reason for this is that very few facts materialize by themselves. The curious will usually find footprints leading up to the evidence.

Cases Are About What Cases Are About

You can focus your time during trial showing that your client’s speech was not really slurred. You may even have witnesses who can testify that the defendant spoke in a normal voice. Cross-examination of the arresting officer will probably show that the officer did not know how the defendant normally sounds because the officer had never spoken with the defendant before the night of the arrest. At every juncture you can note that the police officer understood the defendant. Finally, you can then rail about this evidence in closing argument. And if you do all this, at the end of the day, through all your efforts, your trial will end up with a discussion of how slurred or unslurred your client’s speech was. Is this really where you want to be when the jurors retire for deliberations?

Compare this focus to pointing out that the police officer gave the field sobriety exercises in a poor location. Then noting that the officer did not properly conduct the field sobriety exercises, and went on to improperly conduct the 15 minute observation period before the breath tests were given.

Cases are about what cases are about. Not surprisingly, jurors usually attach importance to what the players in the drama attach importance. If you have evidence that your client spoke normally, by all means present it. However, do not make this the focus of your case.

If there is a general rule of strategy in drunk driving cases it is this: Do not make the focus of your case on defensive points. Yes, defend against bad evidence. But try to make the focus of your case on offensive points. (For example, the police officer did not properly administer the field sobriety tests, or the breath machine was out of calibration, or the blood was not properly stored.) One way to help you retain this focus is to fill in the following blank before you start trial: I want this case to be mostly about _________________ (fill in the blank).

In 2007 the California DUI Lawyers Association in conjunction with the National College for DUI Defense released the results of a DUI jury research project. The two principal goals of the project were to discover what jurors were most receptive to DUI defendants [see Chapter 19], and what arguments resonated best with jurors in a drunk driving trial. The study showed that one of the best arguments resonating with jurors was the failure of the police to follow proper guidelines. Make sure the heart of your case is about attacking the government’s mistakes – not defending your client’s.

Some of key findings from the jury research project revealed the following:

  • The rising blood alcohol defense did not resonate particularly well with jurors. The defense is slightly complicated to present, and basically is telling the jurors that the officer stopped the defendant before the defendant had a chance to become drunk. This is not the strongest argument to make people root for you.

  • Many defense lawyers have long advocated that defense attorneys describe breath testing equipment as machines. After all, machines do break. By the same token, prosecutors have been instructed to call breath machines instruments. An instrument seems much more precise. People describe surgery being done with instruments, not machines. In court, these conflicting designs sometime turn humorous. The lawyers try to outdo each other: one calling the device a machine, the other characterizing the device as many times as possible as an instrument. As it turns out, the results of the jury research project recommended that the defense describe breath testing equipment as neither instruments nor machines. The feeling from the project was that the word machine, like the word instrument, has a certain feeling of accuracy to it. The results of the project recommend that defense lawyers instead describe breath testing equipment whenever possible in general terms. Describe the end results, calling them for instance, evaluations. Given this, consider calling the breath machine, in court, the breath evaluator.

  • Instead of using the term margin of error, the jury project recommended defense lawyers describe the margin of error in alcohol testing devices as a range. Combining the lessons together, one might ask, Isn’t true that this breath evaluator has a blood alcohol range of plus or minus .02%?

  • As for field sobriety tests, the project suggested calling them preliminary roadside evaluations. The research project also found that field sobriety tests not done in conformity with the NHTSA guidelines caused significant concern for jurors. [See the CD that accompanies this book for a NHTSA manual.] Consequently, emphasize the failure to properly follow police procedures. Cases are about what cases are about.

Jury Selection

The most important part of a drunk driving trial is jury selection. [See Chapter 19.]

Keep extremely focused during jury selection. Get your client immersed. Have a friend sit in anonymously to assist you. Remember: Jury Selection, Jury Selection, Jury Selection!

§20:05    Checklist for Coordinating the Attack

  • Link favorable parts of the case to other parts of the case. [See §§20:04 & 20:114.]

  • Try to have at least two pieces of evidence or testimony to support any point you make. [See §20:04.]

  • Recognize the significant impact of the presumption of guilt and combat the presumption by demonstrating a commitment to the case. [See §20:04.]

  • Cases are about what cases are about. Make sure yours is about what you want the case to be about as much as possible. [See §20:04.]

  • The prime purpose of voir dire is to destroy the presumption of guilt. [See Chapter 19, Jury Selection.]

  • Use the jury selection maxims. They are trial tested. [See Chapter 19, Jury Selection.]

  • Jury selection is the most important part of the trial. [See §20:04 and Chapter 19, Jury Selection.]

  • Have a thorough understanding of the law that governs the jury selection process. [See Chapter 19, Jury Selection.]

  • Curiosity is the antidote to the presumption of guilt. Develop it in the jurors. [See §20:70.]

  • Find topics that adverse witnesses can agree with you on in the case. This way you can continue to link the whole case together. The sum becomes larger than the parts. [See §20:114.]

  • Anyone who was with the defendant before or after the defendant’s arrest is a potential defense witness. [See §20:140.]

  • A good closing argument adds something more to the case than restating the obvious. [See §20:161.]

  • Answer compelling points made by the prosecution early on in your closing argument. [See §20:160.]

  • Do not argue reasonable doubt until near the end of your closing argument. [See §20:169.]

  • Hire an expert. [See Chapter 6, Retaining and Using Experts.]


The above advice came from…

Add to Shopping Cart

Proven DUI
Cross-Examinations

The cross-examinations of the arresting officer and prosecution expert are the most challenging and important steps in a DUI trial.

You will be more effective in these two cross-examinations with the trial-tested questions contained in Don Bartell’s Attacking and Defending Drunk Driving Tests.  The pattern examinations are preceded by strategy discussions and followed by explanatory text.

Pattern courtroom questions

  • Letting jurors know the sample was analyzed with a largely automated process.  §5:32

  • Countering bloodshot eyes, odor of alcohol, slurred speech, and flushed face.  §8:41

  • How to attack the horizontal gaze nystagmus and Romberg tests.  §8:50

  • Questioning the one-legged stand, walk-the-line, and alphabet exercise results.  §8:52

  • Taking advantage of the way prosecution experts present their Widmark calculations.  §10:41

  • Exposing the many prosecution experts who don’t know Dr. Widmark’s formula and have not read his book.  §10:43

  • Exploiting the Widmark variables in your cross examination of the prosecution’s expert.  §10:45

  • How to weaken the prosecution’s claims of accuracy when its calibration and other records appear flawless.  §12:25

  • How the prosecution opens the door to a cross-examination on the partition ratio, and how to conduct that exam.  §12:44

  • Why you must and how to fight back in cross examination against a damaging point made in the prosecution’s direct.  §20:82

To order Don Bartell’s Attacking and Supporting Drunk Driving Tests on 30-day approval, click here