How the best lawyers consistently win DUI cases – Lesson 2
From Innovative DUI Trial Tools by Bruce Kapsack
Technical stop, moving violation, accident, stop, stop setup, approach, pre-exit interview
The main point you need to make with this officer is to show either that:
The client’s driving was not indicative of DUI; or
The indicative driving was not that bad.
If the stop was for a technical violation, it is pretty easy. If it is for run-of-the-mill violations, speeding, rolling stop, minor weaving, your work is to show that happens to all of us.
It is only when the driving pattern is particularly egregious that you may need to get into details of what was going on. With an accident case, which is what every juror fears from your client, you need to demonstrate that if the officer did not smell alcohol, he would not have made a determination as to fault. It was only his conviction of alcohol as a factor that led him to believe the accident was your client’s fault.
This is where you will also start to build the lack of connection between the chemical test results and the client’s behavior. In other words, the client does not have the manifestations of drunk driving.
The points to be made here are:
The client’s driving was not that bad.
In fact, the driving pattern by itself is not proof of DUI.
Driving in a safe, but illegal, manner is not proof of DUI.
Your client’s initial reaction to the officer’s lights, siren or whatever the police used was consistent with sober driving.
Your client’s mental faculties were not affected.
Your client behaved appropriately and as we all would have under the circumstances.
You can then go into the officer’s approach to your client. Use the material below to set up how nervous both the client and the officer were. You can later use nervousness to explain any bad behavior or actions by your client. The client was obviously startled by the passenger side approach. The client’s eyes were obviously blinded by the lights.
Again, you build your client’s mental acuteness by his or her ability to respond to the officer’s directives—by his or her ability to provide the necessary information to the officer.
The points to be made here are:
Intentional off balance questioning and contact by the officer created much of the symptomology.
The officer is trained to put suspects in a bad position.
Too much light flooded the client’s car for his or her pupils to adjust.
The client was scared.
The officer intentionally tricked the client.
Your client responded appropriately.
See Appendix A The District Attorney’s Manual for the prosecution’s approach to direct examination of the arresting officer.
§4:21 Technical Stop (for Burned Out Lights, Expired Registration etc.)
Q: The first time you saw my client there was nothing unusual in his driving?
Q: You state he was stopped for the bad tail light?
Q: Anyone can have a burned out tail light?
Q: In fact, usually such an offense results in a “fix it” ticket?
Q: So nothing about the tail light contributes to a determination of guilt?
Q: Would you agree that the overwhelming majority of people you have stopped for such an offense were not involved in DUI?
Q: So then the odds are that such a person is not DUI?
§4:22 Driving Violation: Speeding
Q: My client was speeding?
Q: You pull over hundreds of individuals for speeding?
Q: Most of them get a warning or a ticket and are let go?
Q: Speeding, according to NHTSA isnot an indicator of DUI?
Q: In fact, speeding requires more attention to details, as road events happen much more quickly?
§4:23 Driving Violation: Illegal Turn
Q: You observed the moving violation, an illegal u-turn?
Q: Did John cut anyone off?
Q: Did he hit anything?
Q: Did anyone have to avoid John?
Q: In other words, aside from the illegality of the u-turn, there was no danger or other safety issues?
Q: Had John made this turn under the same conditions and in the same manner at a different location, one in which the u-turn was not illegal, then it would have been fine?
Q: So his driving, while technically illegal, was not reckless?
Q: You did not witness the accident?
Q: Your job in an accident investigation, with no alleged DUI, would be to take statements, make a report, and clear the scene?
Q: In such a case, you do not make a definitive decision as to who was at fault, since you were not there?
Q: That is left up to the parties, which sometimes means a civil suit?
Q: In such a lawsuit, you would only testify as to what you actually saw?
Q: In this case, however, you have testified to your opinion as to fault even though you were not there?
Q: You based this on the allegation that John was DUI?
Q: If John had not been allegedly DUI, you would not have had an opinion?
Q: John and the other person gave differing stories about the accident?
Q: In this case, again because of the alleged alcohol use, you believed the other person over John?
Q: Do you always disbelieve someone who has consumed alcohol?
Q: Is every accident the fault of one who has consumed alcohol?
Q: So if I asked you if a person sitting at a red light was rear ended by another driver, and the victim said the light was red, but he had been drinking, you would still say it was his fault?
Q: Are you allowed to issue a ticket for a violation of traffic codes you do not see?
Q: This is because if you did not see what happened, it is not your job to decide fault?
Q: But in this case, you did decide fault merely because John had consumed some alcohol?
Q: Therefore, if you are the officer, regardless of the facts, if there is an accident and someone had alcohol, it is that person’s fault?
Q: John never had a chance with you?
§4:25 NHTSA Criteria
Rather than go into every aspect of the NHTSA criteria, I would suggest you read the NHTSA SFST Training guide and question from there about every type of driving behavior that can be observed but was not seen by this officer.
§4:26 The Stop
Q: Once you observed the (fill in reason for stop), you activated your overhead lights?
Q: John reacted immediately and appropriately?
Q: John did not come to a screeching halt, but rather slowed down and pulled over?
Q: John did not stop in the middle of the street?
Q: He did not drive up on the sidewalk?
Q: John did not keep driving?
Q: In all your years of experience in DUI stops, have you seen people stop in the middle of the road?
Q: Seen them hit the curb or other cars?
Q: Drive up on the sidewalk?
Q: Keep driving?
Q: Do a variety of other totally out of the expected driving patterns?
Q: But John did none of this?
Q: He showed appropriate mental ability by an appropriate reaction to your signal?
Q: Once he pulled over, did he remain in the car as required/instructed?
Q: Did he put the car in park, or otherwise secure it?
Q: You must have seen people who jump out of their car?
Q: People who are so intoxicated they leave the car in gear?
Q: People who have the car roll because of not securing it?
Q: John did not exhibit any of these signs of mental impairment?
§4:27 Stop Set-Up
Q: At the academy you are taught that officer safety is rule number one?
Q: You are told that every day?
Q: If there is a choice between your safety and getting a bad guy, your safety comes first?
Q: You were also taught at the academy, and know from experience, that road stops are among the most dangerous aspects of an officer’s career?
Q: From both the concept of the traffic around you, and from the individual(s) stopped?
Q: You have no idea who is in that vehicle, so you approach the car with the utmost care, and expect the worse case scenario?
Q: In so doing, there is a specific way you park your vehicle behind the car in order to (1) maximize your safety, and (2) minimize risks?
Q: This is especially true at night?
Q: One of the ‘weapons’ at your disposal for this is your vehicle?
Q: It is not only big and metal, it has a lot of lights on it?
Q: You have been trained how to use those lights to increase your safety?
Q: The lights can be focused in such a way as to illuminate the entire inside of the car so you can see what is going on in there?
Q: And also, you can use the lights to limit, if not prevent, the occupant of the car from seeing you?
Q: To do this you pull your car slightly inside the other car?
Q: In other words, you line up off center to the inner part of the road?
Q: This is also safer for you to exit your vehicle since you will be exiting on the traffic side?
Q: This then places your passenger headlight in the passenger mirror of the stopped vehicle?
Q: Your driver’s lights are aimed at the rearview mirror of the car?
Q: Did you have a side spotlight?
Q: Did you use it?
Q: That is aimed at the driver’s side mirror?
Q: In other words, all of your lights are used to try and prevent the occupant(s) from using their mirrors to see you?
Q: This also places a large amount of light inside the car’s passenger compartment?
Q: You can see what (if anything) the people do?
Q: Now you make your approach?
Q: Do you use a driver’s side or passenger side approach?
Q: When approaching from the passenger side, you do not walk in between the lights of your vehicle and the suspect’s car?
Q: You walk behind your car, and then up the passenger side of the two cars?
Q: You then make yourself known at the passenger window?
Q: You would agree that most people who have been stopped would be looking for you on the driver’s side?
Q: Suddenly becoming aware of your presence at the passenger side would be startling?
Q: In fact, that is part of your safety mechanism, to startle someone in case they did mean you harm?
Q: When you approach the driver’s side, you do not walk right alongside the vehicle?
Q: You approach at an angle in order to see what is going on in the car?
Q: You do so in order to be safe?
Q: It affords you the best view of the entire car, and hopefully prevents bad guys from getting a good view at you?
Q: You then make yourself known quickly in order to stay safe?
(Both of these will explain any “nervousness” on the part of your client in the first few minutes of contact.)
§4:29 Pre-Exit Interview
Q: Once you establish contact with the driver, you do a quick look in the vehicle for your own safety?
Q: You “scout it out?”
Q: Then, you ask for a driver’s license and car registration and proof of insurance?
Q: While an individual is getting these, you ask some other question, such as why they think you stopped them?
Q: This is a taught technique to try and see if the individual can do two things at once?
Q: You are taught this trick in the DUI training?
Q: Ever been to a wedding?
Q: Ever seen the bride and groom have trouble with the vows and rings at the ceremony?
Q: In other words, while placing the ring on a finger and saying whatever is being said, ever seen the person be nervous, drop the ring, misspeak?
Q: Now, presumably they were not drunk?
Q: And you did this to John?
Q: You have made hundreds of traffic stops?
Q: You usually ask what the person thinks he did wrong?
Q: I am sure you could make all of us laugh with some of the answers you have received?
Q: Would you admit that many people have not been honest with you?
Q: Have people told you they had no idea how fast they were going, then admit they did?
Q: People ever deny running a stop sign?
Q: Anyone ever tell you the light was still yellow?
Q: Now giving false information to a police officer is a crime?
Q: But none of these people were arrested for what they said?
Q: In fact, it is part of the routine to have people be less than forthcoming when pulled over?
Q: Anyone ever tell you they had no idea their license, registration, insurance was expired?
Q: So it is fair to say you get lots of less than true answers during a traffic stop?
Q: None of them mean the person is DUI?
Q: It is just a fact of life?
Q: John did tell you why he was stopped?
Q: He was honest with you?
Q: He did show good awareness of his situation?
Q: Where was John’s license?
Q: John did not have any problem getting those for you?
Q: You said he fumbled for his license, was it in his back pocket?
Q: Did you give him a chance to stand up to make it easier to retrieve?
Q: Did you let him undo his seat belt?
Q: How big was John’s wallet?
Q: You said he could not immediately find his insurance/registration?
Q: Was it in his glove box?
Q: Was his glove box like most of ours, a complete mess?
Q: Did he eventually find the right one?
Q: In order to do so, didn’t he have to read a lot of other papers?
Q: So he was able to discern the right papers from the wrong ones?
Q: Officer, ever been given a completely incorrect response to the license registration question?
Q: Ever get a credit card?
Q: Library card?
Q: Were all those people DUI?
Q: Could it have been nervousness?
Q: Yet John gave you the right papers at the right time?
Q: And when you asked him where he was going, or whatever you did in an attempt to distract him, as per your training, he answered appropriately?
If the officer reported that the client had slurred speech, ask the following questions. The idea is to establish that any “slurred speech” issue is not supported by the officer’s actual conversation.
Q: During this process, was there anything you did not understand?
Q: Tell me, what words or conversation was slurred?
The above advice came from…
DUI defense attorneys have many persuasion hurdles to overcome in the courtroom, but most clients cannot afford the platinum preparation level.
Bruce Kapsack’sInnovative DUI Trial Tools helps you deliver the defense your clients want at a price they can afford. This one-of-a-kind book from one of the country’s top DUI defenders provides creative evidence, forms, arguments, and cross-examination questions ready for implementation in your next case:
Blood alcohol curve. §8:01
Standard deviation chart. §8:10
Walk and turn insoles. §8:20
Horizontal gaze nystagmus protractor. §8:21
NHTSA SFST student slides. §8:22
SFST scoreboard. §8:24
Huser’s totality chart. §8:25
Trichter’s witness unresponsiveness chart. §8:40
Missing filters. §8:53
“What you see depends upon where you stand.” §8:70
Plus forms, arguments, and cross-examinations
Discovery requests and pretrial motions. Chapter 1
Voir dire questions, questionnaire, and limited-time scorecard. Chapter 2
Trial-proven openings and closings. Chapters 3 and 7
Creative cross-examinations for every type of witness. Chapter 4