An example of how an experienced DUI attorney will attack the DUI stop at trial
Experienced DUI lawyers know that the cross-examination of the arresting police officer is one of the most important parts of the defense of a drunk driving charge. They also know that how you approach cross-examining the officer on the stand can greatly impact the DUI defense case.
Creating reasonable doubt rather than trying to destroy the officer on the stand
Many less experienced DUI attorneys try to destroy the arresting officer on the stand. This plan often fails for a couple of reasons. First, most officers are professionals. They are trained not only as law enforcement officers, but as professional witnesses. Unless the officer is fresh out of the police academy, he or she has probably been on the stand before and has been subject to cross-examination. Another reason is that too many DUI defense lawyers fail to properly prepare for cross-examination. A good DUI attorney knows that he or she must be well-prepared to cross-examine the arresting officer. This means the DUI lawyer has mastered the case’s details, including names and addresses.
Successfully destroying an arresting officer on the stand rarely happens. A DUI lawyer’s attempt at destroying an officer will almost always fail unless the police officer has blatantly lied, fabricated evidence, or otherwise engaged in illegal, immoral, or unethical conduct.
The best approach to the cross-examination is to focus on creating reasonable doubt in the mind of the fact finder. It is more important to try to chip away at the state’s case through the cross-examination than to try to tear the arresting officer apart on the stand. Knowledgeable DUI lawyers approach the cross-examination with the objective of creating reasonable doubt through the officer’s testimony, rather than allowing the arresting officer to prove the prosecution’s case.
One example of an effective cross-examination
One example of the type of cross-examination that focuses on chipping away at the state’s case is a DUI attorney’s use of the child’s game of tic-tac-toe to cross-examine the officer. In one case, an experienced DUI lawyer used the game to cross-examine the arresting officer and then relied on such game in his closing argument to argue that the state had failed to meet its burden of proof beyond a reasonable doubt.
In this case, the arresting officer had testified during direct examination about the initial stop of the defendant. The officer had observed the defendant cross the center line of a divided highway on three different occasions in the span of approximately 45 seconds. He testified that when he approached the defendant’s vehicle, the defendant opened the door, stumbled out, and had a hard time maintaining his balance. The defendant was then asked whether he had been drinking, and he replied, “Yes, a few beers, that’s all.”
The defendant was then asked by the officer to submit to field sobriety tests, specifically walking the line heel to toe, the one-leg stand, and the finger-to-nose test, all of which in the officer’s opinion, the DUI lawyer’s client “failed.”
The defendant also submitted to a chemical test which revealed a blood alcohol content (BAC) of .12 and .14 during the two phases of the test.
Here is the cross-examination on these points:
DUI LAWYER: Officer, I want to go over a number of the points of your direct testimony. And what I would like to do is to mark down the specific points that you addressed on the blackboard with an O for officer. Is that acceptable?
DUI LAWYER: What I am going to do is focus on the initial stop, just as you did. Now, you say the defendant crossed the center line and that was the probable cause for the initial DUI stop, is that correct?
OFFICER: Yes, it is.
[DUI lawyer then proceeded to the blackboard and placed an O on the blackboard in the top left-hand corner to demonstrate a point made by the officer.]
DUI LAWYER: But that day you had seen other vehicles cross the center line, had you not?
DUI LAWYER: And you didn’t stop them, did you?
OFFICER: No, not all.
DUI LAWYER: So crossing the center line is not necessarily indicative of driving under the influence of alcohol, is it?
DUI LAWYER: So we can agree that cross the center line in and of itself is not an indication of intoxication, is it?
OFFICER: No, it isn’t.
[DUI lawyer then approached the blackboard and put an X in the top right-hand corner.]
DUI LAWYER: Next I would like to talk about what happened when you approached my client’s vehicle. You testified that he stumbled out of the vehicle and had a hard time maintaining balance, correct?
[DUI lawyer then approached the blackboard and placed an “O” in the lower right-hand corner.]
DUI LAWYER: You didn’t believe that you had sufficient grounds to arrest him for driving under the influence of alcohol at that time, though?
OFFICER: What do you mean?
DUI LAWYER: Well, you didn’t arrest him for driving under the influence of alcohol because he stumbled out of the vehicle, did you?
OFFICER: No, I didn’t.
DUI LAWYER: So, the fact that he stumbled out of the vehicle did not provide a basis to arrest him for driving under the influence of alcohol, did it?
OFFICER: No, not in and of itself.
[DUI lawyer approached the blackboard and placed an “X” between the two “Os” that I had made.]
DUI LAWYER: Let’s talk about the field sobriety tests that you administered. In your view, the defendant failed those tests, is that correct?
OFFICER: Yes, he did.
[DUI lawyer walked to the blackboard and placed an “O” in the lower right-hand corner of the blackboard.]
DUI LAWYER: But when you administer those field sobriety tests, there is no right or wrong way to take the test, is there?
OFFICER: I don’t know what you mean.
DUI LAWYER: Well, whether someone passes or fails is strictly dependent on your opinion, isn’t it?
OFFICER: I guess you could say that, yes.
DUI LAWYER: If the defendant makes any mistake at all or doesn’t get a perfect score in your view, then he fails, doesn’t he?
OFFICER: Yes, I guess that’s right.
DUI LAWYER: Do you know of any other test where someone has to get a perfect score or they fail?
OFFICER: Not that I can think of.
DUI LAWYER: But that’s how this test worked, isn’t it?
[DUI lawyer approached the blackboard and placed an “X” between the two “Os” in the lower left and right-hand corners previously placed.]
DUI LAWYER: Let’s talk about the breath test.
DUI LAWYER: You testified that both phases indicated a BAC in excess of .10, correct?
[DUI lawyer then walked over to the blackboard and placed an “O” at the top of the board in the middle between the earlier placed “O” and “X.”]
DUI LAWYER: In order to have a valid test, you need two phases, don’t you?
OFFICER: That’s right.
DUI LAWYER: And in the first phase, which was approximately one hour after you observed my client, and when you say he was intoxicated, the BAC was .12, correct?
DUI LAWYER: And then approximately 35 minutes later, the BAC result was .14, correct?
OFFICER: That’s correct.
DUI LAWYER: So in the period of time between the first test and the second test, at least according to the test result, my client’s BAC had risen a full .02, correct?
DUI LAWYER: So that means that his blood alcohol content was rising, correct?
DUI LAWYER: So that means it would have been lower at the point in time when you actually observed him driving, isn’t that correct?
DUI LAWYER: And you can’t tell how much lower than .12 it was, can you?
OFFICER: No, I don’t know.
DUI LAWYER: In fact, it could have been below .10, couldn’t it?
OFFICER: I don’t know. I’m not sure.
[DUI lawyer then walked to the blackboard and put an “X” in the middle column between the previously placed “O” and “X.”]
DUI LAWYER: I want to be fair to you here. There are some things that are at least arguably consistent with intoxication. That, I will grant you.
OFFICER: Thank you.
[DUI lawyer then walked to the blackboard and placed an “O” in the right-hand column between the previously placed “X” and “O.”]
DUI LAWYER: But I assume you want to be fair as well, don’t you?
OFFICER: Yes, I do.
DUI LAWYER: So you will agree, won’t you, that there are things that we have just pointed out that are inconsistent with intoxication, correct?
OFFICER: Yes, I guess so.
DUI LAWYER: Thank you for being fair.
[DUI lawyer then walked to the blackboard and stated, “Let’s see what we have here.” DUI lawyer then drew in the lines of a traditional tic-tac-toe diagram and showed that no one had won, the typical tic-tac-toe stalemate. Here is what the board finally looked like:]
DUI LAWYER: That’s all I have at this time, Officer. Thank you again for your fairness.
In his closing argument, the DUI lawyer used the blackboard tic-tac-toe game to argue that the prosecution had failed to meet its burden of proof beyond a reasonable doubt, stressing that although the defendant did not have to prove anything in a criminal case, here the defense had shown through the officer’s own testimony and in a demonstrable fashion, i.e., the tic-tac-toe diagram, that at best, the case had been stalemated. No one had won, and in such circumstances, because the prosecution bears a heavy burden of proof, there was only one verdict: not guilty.