Testifying at your DUI trial: how to respond to common prosecution trick questions

As the defendant, you are the most important witness at your DUI trial. You can be the only one to rebut the testimony of the police officer and the “testimony” of the breathalyzer. If you are well prepared, articulate and make a good appearance, the jury will find it far more difficult to convict you because you will stand before them and they will hear from you as a real person.

Here are some typical trick questions that prosecutors often ask and that you should be prepared to answer if you testify at your DUI trial.

Are you familiar with the symptoms of intoxication?

When cross-examining you at your DUI trial, a clever prosecutor may attempt to trap you by getting you to admit that you are familiar with symptoms of intoxication, creating a catch-22 situation. For example, if you deny that you are familiar with the symptoms of intoxication, then the prosecutor can argue: “How can you testify that you were not under the influence of alcohol?” On the other hand, if you are familiar with the symptoms, then the prosecutor can argue that the jury should infer that you are knowledgeable because you are used to excessive drinking.

Are blood shot eyes, in your experience, consistent with intoxication?

Another trick the prosecutor may attempt is to ask you about each of the symptoms that the officer noted that you exhibited in the alcohol influence report form. You will be asked whether each of these symptoms is, in your experience, consistent with intoxication. Your DUI attorney should anticipate this kind of cross-examination and prepare you for it in advance. The best way to approach it is for you to admit that you were drinking. You should also testify that you know what the phrase “under the influence” means. You should explain its meaning to the jury—and then you should forcefully state that you were not under the influence at the time of driving.

It is very important for you to understand the legal definition of “under the influence of alcohol.” If you believe you were not under the influence of alcohol, then you will likely come across as believable and survive even a vigorous cross-examination.

Did you rehearse your testimony with your DUI attorney?

The prosecutor may ask you whether you “rehearsed” your testimony with your DUI attorney and whether you were prepared for cross-examination by being asked the same questions now asked by the prosecutor. There is nothing wrong with reviewing your testimony and expected cross-examination questions with your attorney. Preparing you to testify is an important part of his or her job. In some cases the prosecutor may even go further, asking whether your attorney told you what to say. Although this question likely would invade the attorney-client privilege and an objection would certainly be proper, the court may overrule the objection or your attorney may want you to answer. An appropriate and truthful way to answer the question is as follows: “My attorney and I have discussed what would happen today. He gave me one principal instruction—to tell the truth, and that is what I am doing.”