October 2008

There are certain boring yet inevitable questions that often begin an examination of a police officer in a DWI (by a prosecutor) or an administrative license revocation ALR case (by a defense attorney):

  • State your name for the record please…
  • You’re employed by Austin Police Department?
  • Any prior law enforcement experience?

 A defense lawyer usually wants to know how many arrests a particular officer has made for DWI and how long he has been a peace officer at all. The theory is that the fewer arrests he has made or the shorter period time he has been doing this, the more likely it is that his opinion that the client was intoxicated is suspect.

 

And while the defense lawyer might not bring out the possible experience of an officer at jury trial if it is extensive – that is, if the prosecutor hasn’t done that already – there’s sort of a no harm/no foul rule when it comes to asking questions at an ALR. After all, the odds are stacked against you, there’s no reasonable doubt to rely on, and in a refusal case DPS doesn’t even carry the burden of proving that your client was actually intoxicated – simply that he was properly offered a breath test and refused.

 

Basically, if you’re going to win or lose the driver’s license hearing it won’t often be because of that painful one-question-too-many moment. At any rate, most ALRs by defense attorneys start with these type of pro forma questions.

 

So as I’m taking a break in the back of the room this afternoon waiting for my client’s ALR to start (brushing up on some top notch possible avenues of cross examination like “Are there any reasons someone might be asleep at the wheel other than intoxication?”) I hear the defense lawyer ask, “How long have you been a certified peace officer?…”

 

At which point – I am not making this up – the baby faced officer… looks at his watch.

 

OK, so he replies, “10 months” and I assume that his watch is one of those that has the month on it – but it still made me inwardly chuckle about how that might have looked to a jury.