DUI Defense – Attacking a claim of bloodshot eyes

The lack of a baseline

If the arresting officer claims that your eyes where bloodshot at the night of the arrest, your attorney might attack this claim by emphasizing that the officer does not have a baseline on how your eyes typically appear. Some people naturally have bloodshot eyes.

Even if you do not normally have bloodshot eyes, there are many factors that can cause eyes to redden. For example, fatigue, allergies, smog, and contact lenses can all contribute to bloodshot eyes. Smoke in bars can also act as an eye irritant. Your attorney might raise and or all of these factors, and particularly any factor peculiar to you, during cross-examination of the arresting officer.

Sample cross-examination of an arresting officer about bloodshot eyes

The following is a sample cross-examination of an officer on the issue of bloodshot eyes:

Q: Officer, prior to the night you arrested [the defendant] you had never met him?
A: That is correct.

Q: And since you had never met him before, I take it you had never seen his eyes before?
A: That is also correct.

Q: You do not know how his eyes normally appear in the morning?
A: I do not.

Q: You do not know how his eyes appear in the afternoon?
A: I couldn’t tell you.

Q: You do not know how his eyes normally appear after working all day?
A: I haven’t the foggiest.

Q: You haven’t the foggiest as to how long the defendant worked that day?
A: No.

Q: You haven’t the foggiest whether the defendant’s work causes eye strain?
A: No.

Q: You don’t even have the foggiest where the defendant works?
A: No.

Q: Can you tell the jury how the defendant’s eyes appear normally at night?
A: I cannot.

Q: Let me ask you, officer, there are a number of things that can cause bloodshot eyes?
A: Yes.

Q: Smog can cause it?
A: True.

Q: Fatigue can cause bloodshot eyes?
A: Yes.

Q: Contact lenses can cause it?
A: Like I said, there are other reasons that can cause it.

Another sample cross-examination of arresting DUI officer about bloodshot eyes

The following is a sample cross-examination of an officer on the issue of bloodshot eyes:

Q: Officer, you stated that defendant had bloodshot eyes?
A: Yes.

Q: Did you ask the defendant how long he had been without sleep when you arrested him?
A: No.

Q: Haven’t you ever had bloodshot eyes, Officer, when you’ve been without sleep for quite some time?
A: Yes.

Q: And isn’t it a fact that there are many other instances when you have had bloodshot eyes?
A: Yes.

Q: And isn’t it a fact that in just about every one of those circumstances the reason for your eyes being bloodshot had nothing to do with your being intoxicated?
A: Yes.

Q: So, it’s fair to say that the fact that the defendant had bloodshot eyes was not enough to lead you to conclude that he was under the influence?
A: Not that fact alone, no.

These questions demonstrate to the jury that the officer’s observation regarding bloodshot eyes can be disregarded because there are too many explanations for bloodshot eyes other than intoxication.

Checking the eyes of the arresting officer

Most DUI arrests take place late at night. This means the officers working the graveyard shift make the bulk of the arrests. Trials are usually conducted during the day. This is the time most graveyard shift officers are sleeping. Because of this, an unusual number of these officers come to court with remarkably bloodshot eyes.

This gives your attorney the opportunity to make some points on the condition of the police officer’s eyes.

If the officer’s eyes are bloodshot, your attorney might use an examination like this:

Q: Officer I couldn’t help noticing that your eyes are pretty bloodshot themselves?
A: Yes, they are.

Q: You haven’t been drinking by any chance, have you?
A: No, I have been up late.

Q: So being up late is can cause bloodshot eyes?
A: Yes.