Experienced DUI attorneys understand something very simple and true: most jurors will not like or sympathize with defendants who are on trial for driving under the influence of alcohol, drugs or some alcohol or drug related felony. That is because (1) these defendants are charged with unpopular crimes, and (2) in many circumstances (although there are certainly exceptions), most defendants are neither charismatic nor likable. Accordingly, the DUI defense has a difficult but not insurmountable task: the DUI defense must overcome the stark and very real fact that individuals who are charged with committing an unpopular crime, at least in the minds of most jurors, are viewed as unpopular persons who have committed crimes.
Indeed, this fact is only one of many obstacles that the DUI defense must overcome if the defendant is going to have a realistic opportunity at obtaining a not guilty verdict. Some of the other facts/obstacles follow:
First, the DUI defense must effectively cross-examine the police officer. Second, the DUI defense can debunk the myth of the infallibility of chemical testing. Third, the DUI defense can combine zealous advocacy with a thorough and complete knowledge of the law to obtain the best possible jury instructions for the facts of the case. Fourth, the DUI defense can then stress and capitalize on the most favorable of those instructions (including the presumption of innocence, proof beyond a reasonable doubt, etc.) during final argument.
The DUI defense also has to be ready to try to change another fact/obstacle: that jurors will not like DUI defendants. One way a DUI lawyer can do so is to get the jurors to like and identify with the DUI lawyer and then to associate the DUI lawyer with his or her DUI client. The bottom line is that most DUI defense attorneys will probably present a more favorable and likable image to the jurors than their DUI clients will. Most DUI defense attorneys will also have the good sense and self-control to understand and appreciate that it is not their job solely to convince judges or prosecutors that they are tough and unyielding advocates.
Rather, it is the job of DUI defense counsel to convince jurors that, for whatever reason, the State has not met its burden of proof, and that, accordingly, in good conscience and consistent with their oaths, they should return a not guilty verdict. To be successful, DUI defense counsel needs to do everything possible to convince the jurors that what counsel is saying and what evidence counsel is presenting is the correct way to view the evidence and facts, i.e., the way most consistent with common sense and the judge’s instructions. Simply stated, to do so, DUI defense counsel must convince the jurors that they are worthy of the jurors’ acceptance and belief.
The road to acceptance and belief has to start early on. DUI defense counsel must be organized and knowledgeable about every aspect of the case before they enter the courtroom and introduce themselves to the jurors. If defense counsel seems to be disorganized, confused, unsure or distracted, jurors will immediately begin judging the lawyer negatively, i.e., as a DUI lawyer they, the jurors, wouldn’t want for themselves.
DUI defense counsel has to make a good impression on the jurors. They must dress, act and speak in a manner that will impress—or, at a minimum, not turn off—jurors. This means that they should be relatively conservative, neat and clean; and that their attitude should be confident without being cocky or abrasive. Finally, speech and discourse with jurors should always be respectful, clear, cogent, and, above all, understandable.
Very few jurors are used to or comfortable about taking part in what many DUI defense attorneys consider an everyday occurrence: the trial of a drunk driving case. The jurors are in fact probably uncomfortable and nervous. Good DUI defense lawyers get the jurors acclimated to their position and arguments by helping the jurors feel comfortable and more attune with the circumstances surrounding them. Simply stated, DUI defense attorneys need to present themselves as persons with whom the jurors can identify and with whom each of the jurors would feel comfortable in having a conversation outside of the courtroom.
Voir dire is the process by which prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury in a DUI case. DUI lawyers will select, or perhaps more appropriately reject, certain jurors to hear a DUI case. Knowledgeable DUI defense attorneys are careful during voir dire not to challenge jurors with probing questions that they might feel are irrelevant, or worse insulting, inane and invasive of their privacy. They explain to the jurors not only what questions are being asked, but why they are being asked.
Skilled DUI attorneys also help jurors understand that voir dire is part of the process of a trial and that their answers to the questions are extremely relevant and pertinent. They stress to jurors that it is important that they be comfortable with their role in sitting on this particular jury. And they convince jurors that in order to do so, and to assist them in understanding and meeting their obligations, DUI defense lawyers, and the court, need to know how jurors feel and think about certain things.
For these reasons, experienced DUI lawyers know it is important that the questions asked be clear, understandable and sufficiently open-ended to allow the jurors to talk and express themselves. Rather than cross-examining jurors during voir dire, DUI defense counsel may consider asking one juror to comment upon what another juror thinks or says. Alternatively, a question can be posed and then opened for discussion among the jurors. Then by listening to what the jurors have to say, rather than by cross-examining or intimidating them through questions, DUI defense counsel will more likely get complete and more accurate information in a less threatening way.
Consider the following example of how an experienced DUI attorney will question a potential juror. Assume the DUI defendant has been arrested and charged with driving under the influence of alcohol and refused to perform field sobriety tests. Also assume that either the jurisdiction allows the introduction of the refusal to perform the field sobriety tests into evidence, or that the DUI attorney has been unsuccessful in excluding the introduction of the refusal evidence. Rather than asking the jurors: “Would any of you hold against my client the fact that he refused to submit to or perform field sobriety tests?” (to which the DUI attorney probably will get silence as the “answer,” with the court then stating, “Let the record reflect that no jurors responded in the affirmative”), the DUI lawyer will ask the following question:
“Now you know that Dan Johnson has been charged with driving under the influence of alcohol. I would like to ask each of you some questions.”
Addressing a particular juror: “Mrs. Brown, can you tell me some circumstances that you can envision where it would be reasonable for a person to decline to perform coordination tests?”
Then, when Mrs. Brown offers some explanations, the DUI attorney will ask other jurors to offer other examples of why someone might not agree to perform coordination tests, thereby setting the stage for a conclusion that it is certainly reasonable for someone to decline to perform field sobriety tests. Then, if during cross-examination, the DUI attorney presents those very kinds of circumstances to the arresting officer and he finds them to be unreasonable, he will be perceived by the jurors as someone who disagrees with their opinions on reasonableness.
If, on the other hand, a DUI defendant has taken the field sobriety tests, the jurors should be asked to consider and then suggest reasons why the DUI defendant may have performed poorly. Common problems for all DUI clients are the conditions under which such tests are performed at the roadside. The DUI defendant is likely to be scared and overwhelmed and feeling very nervous. Jurors often have many of these same feelings being while being asked questions in court during voir dire. If this is brought to the juror’s attention, they may be able to empathize with the DUI defendant.
This can be accomplished by first addressing a particular juror and asking him or her about the field tasks administered. For example, “Mr. Jones, if I were to ask you to step out of the jury box right now, and stand on one leg for 30 seconds, do you think you’d be able to do so?” If the juror answers in the affirmative, the DUI attorney may then ask him if he’d be able to do so at the side of the road, in the dark, with two police officers watching, lights flashing, etc. A skillful DUI lawyer then always asks the follow up question allowing the juror to explain his or her answer. If the juror indicates that he or she would be able to perform well, the DUI attorney will ask the other jurors to agree or disagree, and will ask them to explain their answers.
Another way a DUI defense attorney can accomplish the same objective is to ask a juror the question: “If you were going to devise a test that would test a person’s normal ability to balance, would you have the subject look at their feet while balancing on one leg, or look straight ahead?” The DUI attorney will ask the same type of question for different parts of the various field tasks. For the walk and turn, the drunk driving attorney may ask: “If you were to devise a test that would test a person’s ability to walk normally, would you have the subject walk with their arms at their sides, or with their arms extended?”
This technique can also be used to educate the jury about the possible inaccuracy of the breath test. Before beginning this line of questioning, DUI defense counsel should first identify a juror that uses measuring equipment in their employment, and then proceed as follows:
DUI LAWYER: Mr. Smith, I understand that you are employed as a scrap metal salesman?
JUROR: Yes I am.
DUI LAWYER: Would I be correct in assuming that you sell scrap metal based on weight?
JUROR: Yes, that’s correct.
DUI LAWYER: Are the scales you use calibrated?
JUROR: Yes, we have a company that comes in and calibrates our scales on a regular basis.
DUI LAWYER: Can I assume that the company that buys your product, they weigh it as well.
JUROR: Yes, they don’t take our word for it.
DUI LAWYER: And their scales are calibrated also?
JUROR: Most often they are yes.
DUI LAWYER: Have you ever sold a quantity of scrap metal only to have the buyer call you up and tell you your scale is wrong.
JUROR: Yes, that does happen from time to time.
DUI LAWYER: So, even though the scales at both ends are calibrated the results don’t always match.
JUROR: Yes, I guess so.
DUI LAWYER: If the State’s attorney shows you evidence that the breath test machine in this case was calibrated, do you think it could still produce a result that was wrong, kind of like the scales you use at work?
JUROR: I don’t see why not.
At this point DUI counsel will often ask more general questions that will allow the juror to explain specifically how and when problems have occurred, and how they knew about it. Sometimes a juror will explain that they knew the result was out of tolerance because of a subsequent visual inspection. This answer is particularly useful when there is a similar disparity between the physical and chemical evidence in a case. After questioning the specific juror in this manner, DUI defense counsel will then ask other jurors to agree or disagree, preferably other jurors whose jobs require use of measuring equipment. These jurors might be employed as nurses, engineers or even carpenters and other trades people. Another alternative would be for DUI defense counsel to ask each juror separately for an example of a particular circumstance when a calibrated or scientific machine malfunctioned. This will set the stage for cross-examination and for closing argument when such arguments are made.
A DUI attorney’s credibility is at issue during the opening statement. Even though the jurors will probably be told that the opening statement is not evidence, what a DUI lawyer says to the jurors will be deemed by them to be a promise or a commitment made on the lawyer’s part as to what the evidence will be. A sophisticated DUI attorney will be careful about both what he or she says and doesn’t say. They will never promise something that they cannot deliver.
The DUI defense opening should be as simple and straightforward as possible, either negating what the prosecution will present or focusing on such general concepts as how the evidence will support a finding that the prosecution has not established its case beyond a reasonable doubt. This does not mean an opening statement should be timid or defensive. Actually, it should be just the opposite, strong, clear and confident. It does mean that the DUI defense counsel should focus on the evidence that will be presented, spinning the opening as evidence that is very defense-oriented.
DUI attorneys often keep careful notes or, alternatively, obtain the transcript of the opening statements made by both the prosecution and themselves. Jurors will likely consider those opening statements to be promises made, and if either the DUI attorney or the prosecutor does not live up to their promises, jurors will likely hold the promise breaker in low esteem. On the other hand, if a DUI lawyer presents his or her case consistent with the opening statement and delivers on the promises the jurors will deem made, the DUI attorney will establish and maintain credibility with them.
Seasoned DUI attorneys always have a plan in mind that is consistent with the presentation they made in the opening statement. Their cross-examination has a purpose and is not simply scattershot, attacking on all fronts, hoping that some point is made somewhere. Every witness can be cross-examined, though some more successfully than others. DUI lawyers will establish in advance the point or points that they want to make and reasonably can make. They will also obtain concessions from every witness that they decide to cross-examine and make sure that those concessions are consistent with the points they have made during the opening statement and the arguments they are going to want to make during closing argument.
Once again referring to the example where the DUI defendant refused to perform field sobriety tests, assume that during the voir dire jurors mentioned nervousness and fear as one reason why someone might not want to perform the field sobriety tests. In cross-examining the arresting officer, a DUI attorney may focus on that point and attempt to obtain a relevant concession as follows:
DUI ATTORNEY: Now, Officer, you asked Dan Johnson to perform these coordination tests, correct?
OFFICER: Yes, I did.
DUI ATTORNEY: And you marked down in your report form that Dan appeared nervous and agitated, correct?
OFFICER: Yes, he did.
DUI ATTORNEY: And he appeared nervous and agitated when you asked him to perform these coordination tests, isn’t that correct?
Through this line of examination, nervousness and fear are raised as relevant reasons why a reasonable person would not want to take part in these unusual balancing and coordination tests, and that the DUI attorney’s particular client, Dan Johnson, experienced those very same reasonable emotions when he declined to take the test.
Credibility is also key during the final argument. Adept DUI lawyers want to make sure that the jurors conclude that what they are arguing is consistent with the evidence that they just heard and with the judge’s instructions. Most courts have standard or pattern jury instructions that will be used in criminal cases. Experienced DUI lawyers try to use the same kinds of words in their closing argument that the jurors will likely hear from the judge during his or her instructions.
In closing argument, in order to impress upon the jurors that the DUI attorney is someone who is worthy of their trust and confidence and will not lead them astray, the DUI attorney will focus on evidence that the jurors will recall as memorable and defense oriented. This does not mean, however, that a DUI attorney will ignore or shy away from pro-prosecution evidence. Actually, it must be confronted head-on, and it must be explained in a manner that is consistent (1) with the evidence the jurors have heard, and (2) with the requirement that the State prove each and every element of the offense charged beyond a reasonable doubt.
For example, if jurors have heard evidence of a chemical test result that is above the legal limit, a DUI lawyer must acknowledge that fact. He or she cannot ignore it or make believe that it doesn’t exist. There are, however, ways to explain the high chemical test result. Certainly the best way will vary from case to case. Assume, for example, that the breath test result is high, but lay witness testimony concerning the DUI defendant’s actions, conduct and demeanor, as well as videotape evidence, appears inconsistent with a high breath test reading. These facts, coupled with the court’s instructions that inconsistent and contradictory evidence can in and of itself amount to reasonable doubt, can be used to convince jurors that they should call into question and have serious and reasonable doubt about the legitimacy of the test results.
Finally, the best DUI attorneys will always treat their DUI clients with respect and dignity. DUI attorneys will never be able to convince the jurors to identify with or like their clients if they appear to dislike him or her.