October 2007

One of the things I love about the criminal defense/DWI blogosophere is that it is a great resource for practicing lawyers. Reading other attorneys’ thoughts often helps me in my day to day practice.

Two quick examples:

From Robert Guest on DWI and Jury Selection:

As part of the jury selection process I often ask potential jurors if they have ever driven after drinking. The vast majority of potential jurors answer yes.

The truth about DWI is that most jurors have committed DWI in their past but did not get arrested. They only difference between them and the defendant is luck.

When I inquire into the reason they chose to drink and drive most will say they were "young and stupid." I often wonder at why jurors are so ready to ruin the lives of defendants who are on trial for DWI, when they have committed the same crime themselves.

I’m not sure I would ask the “why” follow up question in Voir Dire, but that’s a matter of personal style. The point is that by reading Robert’s blog, I’ve added a question to my repertoire.

It’s simple, to the point, and something the DWI lawyer wants and needs to know. I’ve had my own ways (in the past) of inquiring about this subject matter, but because of Robert’s post, I’m going to adopt his way of doing it. It’s better than how I tried to illicit the information, and I’m not afraid to admit it. Read, learn, and get better. (I can even admit that his method is so much simpler and better than mine has been that I’m a little embarrassed.)

One general rule for jury selection is that you shouldn’t be asking “raise your hand if …” type questions, you should be asking questions that force potential jurors to respond substantively, with their own thoughts and ideas. But this is a good example of an exception to the general rule.

Example #2 comes from Mark Bennett, but some background before we get to his specific cross examination question. 

I think one of the most difficult tasks for a DWI lawyer is to successfully defend a breath or blood test case where the client’s BAC (Blood or Breath Alcohol content) comes back as over .08. Briefly, there are two basic defenses: (1) the machine is an untrustworthy piece of junk, or (2) the defendant’s BAC at the time of driving was lower than at the time of the test

The problem for the DWI defense attorney is that both of these are highly technical, i.e. scientific based defenses… and we went to law school. Few of us have graduate degrees in Science. Or undergraduate degrees, for that matter. Personally, I received a Bachelor of ‘Science’ in Psychology, after relatively brief and/or longer stops in the Departments of Computer Science, Theater Arts, and English, in that order. (OK, it took me a while to figure out what I wanted to do – and even then I changed my mind – although you can certainly make the case that my ‘Theater’ training still comes in handy.)

But generally speaking, the person testifying for the State knows more about the Intoxilyzer 5000 than we do. In Texas DWI cases, that person is the “Technical Supervisor’. Their job is essentially to come and testify that defense #1 is out the window, because the Intoxilyzer is God’s gift to machines, and that while defense #2 is theoretically possible, it doesn’t apply in your client’s DWI because blah blah blah (insert mumbo jumbo here, and the reasons seem to change to fit the facts of your particular case).

Here’s what I learned from Mark, in his post on “Dealing with the State’s Expert: One Last Question”:

If you get a chance to talk to the State’s expert witness before trial (if you’re allowed to, try; the best experts often see themselves as neutral, and will explain their conclusions to you), your last question should be: "What book should I read to learn about this topic myself." Get the book; it’ll be a learned treatise that you can mine for cross-examination material.

Yes, it’s not technically cross examination; it’s an informal question most likely asked in whatever room the prosecutors are holed up in, and not in a pretrial or trial setting.

But here’s how it applies to DWI cases: it’s a great question to ask at the ALR driver’s license revocation hearing. This is often held before the criminal case, and it’s an absolute goldmine for defense lawyers. 

Why not use your ALR hearing last question to the technical supervisor to ask his question? About books, or magazine articles and the like. Worst case scenario is that the expert limits his knowledge of ‘learned treatises’ on the subject to a bunch of material that only backs up his side of the story.

At the very least, you can show that the State’s expert relies only on material that favors his conclusions. Or, in the alternative, that the DWI technical supervisor relies on scientific publications that help your client.

Either way, you learn more, and your clients (present and future) benefit.

No, they don’t object to testing you for breath alcohol when they pull you over for going 5 miles over the speed limit on I-35. (Example taken from a recent Austin DWI arrest.)

They object to being breath tested themselves.

After they shoot somebody.

The New York City Police Department is moving to require officers to take breath tests for alcohol if they shoot someone…

Four of the five officers involved in the shooting are detectives, and the union that represents them criticized the breath test recommendation, saying such a measure — which would apply to all police officers — was subject to collective bargaining…

Requiring that police officers take breath tests after shootings — whether the officers are on duty or off — is a significant change…

So, if a police officer asks you to take a breath test, should you exercise your right to refuse, or should you do what the police union would have their members do?

Oh wait… either way, you would end up refusing the breath test. And after all, you didn’t even shoot anyone.