Using the “rule of threes” to present memorable DUI defense arguments
Most people, including DUI jurors, think and coordinate data in threes. DUI attorneys who understand this basic principle can design and implement a defense strategy that uses the “rule of threes” throughout the trial, from opening statement through closing argument.
Sample DUI defense lawyer’s opening statement
Ladies and Gentlemen of the Jury,
I represent the defendant, Jane Doe. As you know, Jane is charged with driving under the influence of alcohol and leaving the scene of an accident. As the judge told you earlier, these are criminal offenses. They are serious changes, very serious. And we are here today to decide whether Jane is guilty of these crimes.
It is my chance now, as Jane’s attorney, to speak directly to you and to tell you about the defense case. So, let me tell you three things: why we are here, what the defense case will be, and the verdict we want you to bring back after you deliberate. Let’s expand a bit on those three things.
First, we are here because the law requires that the State prove each and every element of every offense charged beyond a reasonable doubt. You, as jurors, are here to protect Jane Doe against the State’s accusations, unless the State proves each and every element of the offense beyond a reasonable doubt.
Second, the defense case will show that the State has failed to meet its burden of proof, and accordingly, you, the jurors, are duty bound to protect Jane.
Third, after you have reviewed the evidence presented by both sides in this drunk driving case, and taken into account the DUI law as given to you by the judge, we are going to ask you to return a verdict that will protect Jane against these accusations — a verdict of “not guilty.”
Now, Ladies and Gentlemen, as fair-minded individuals who understand the role you are about to play and who want to do the right thing, you may be asking yourselves these three questions:
First, if Jane wasn’t driving under the influence of alcohol, then why was she stopped in the first place?
Second, if Jane wasn’t driving under the influence of alcohol, then why do the State’s breath test results seem to indicate a high blood alcohol reading?
Third, even if Jane wasn’t driving under the influence of alcohol, why will certain witnesses testify that she left the scene of an accident?
Those are all fair questions. As we proceed through this DUI trial, they will all be answered, we hope, to your satisfaction. Let me give you a little preview of what the answers will be based on the evidence you will hear:
Answer to Question No. 1:
Jane was stopped because her left tail light was burned out, not because the officer believed she was driving under the influence of alcohol, but. In fact, the evidence will show that the arresting officer actually let Jane leave after issuing her a warning. That’s what happened.
Answer to Question No. 2:
What about the breath test results? Why do they seem so high if she was not driving under the influence of alcohol? Is there something wrong with them? The answer, Ladies and Gentlemen, is yes. There is something wrong with the breath test results. As a result of the accident in which Jane was involved, she was injured; she cut the inside of her mouth, and she should not have been given a breath test. You will hear from an expert witness for the defense in this regard. This expert will explain in simple and direct terms why the breath test result here is not only wrong, but also why it never should have been given to Jane in the first place.
Answer to Question No. 3:
Why did Jane leave the scene of an accident, as some witnesses will testify? We do not dispute that she left the scene of the accident. The accident occurred approximately four minutes after Jane received the warning from the officer. The accident happened at a busy intersection. Jane left because she was injured, because she was afraid, and because the other person involved in the accident began yelling, screaming and berating her. Jane feared for her safety; she wanted medical attention; and she left. Although this perhaps may not have been the wisest thing for her to do, the evidence will show that her actions are understandable, explainable and not criminal in nature.
So, Ladies and Gentlemen, as we begin this case, I would very much like you to focus on these three questions that we have raised, to view the evidence in light of those questions, and then to be fair, honest and unbiased in your deliberations. That’s all we ask. That’s all we want. And that’s all the law requires. Thank you.
Sample cross-examination of DUI breath test technician
Consider this brief example of the cross-examination of the breath test technician, based on the factual scenario outlined in the opening statement.
ATTORNEY: Officer, I want to cover three things with you in this examination. First, your breath technician’s training manual; second, the administration of this test to Jane; and third, the test results. Is that acceptable, officer?
ATTORNEY: Let’s talk about the training manual. You are familiar with it, aren’t you?
ATTORNEY: Your training manual advises against test administration where there is injury to or blood in the mouth, isn’t that correct?
OFFICER: Yes, I believe so.
ATTORNEY: Here, Jane was injured at the time of the administration of this test, wasn’t she?
OFFICER: She later claimed to be so.
ATTORNEY: Are you saying that you didn’t see any injury at the time you administered the test?
ATTORNEY: Did she complain of injury?
OFFICER: Yes, she said her mouth hurt.
ATTORNEY: Did you look inside the mouth to see if it was injured or was bleeding?
ATTORNEY: So, the manual instructed you not to administer the test if she is injured or bleeding in the mouth area, or if she complained of injury to the mouth, but you did not look inside her mouth before administering the test, is that correct?
ATTORNEY: Let’s talk about the results.
OFFICER: All right.
ATTORNEY: The test results indicate a blood alcohol concentration of .14, is that correct?
OFFICER: Yes, that’s what the test readings were, two readings of .14 each.
ATTORNEY: You know that this test was administered in contravention of what is contained in your training manual, don’t you?
OFFICER: I don’t know about that.
ATTORNEY: Well, the training manual instructs you not to administer a test where there is bleeding in the mouth, doesn’t it?
ATTORNEY: How did Jane’s injuries affect the result of this blood alcohol test? Can you say?
ATTORNEY: Can you say whether the test results were skewed in any way?
OFFICER: No. I can’t.
ATTORNEY: No further questions.
By focusing the officer and the jury at the beginning of the examination on the three topics to be covered, the DUI defense attorney can capitalize on the jury’s natural inclination to think in threes. This type of logical, organized questioning helps the DUI attorney keep the jury’s attention focused during the examination on each of the three points the defense wants them to remember.
Sample closing argument by DUI defense lawyer
The “thinking in threes” formula can also be used effectively in closing argument. The DUI defense lawyer first should remind the jury of the three questions that were posed in opening statement, and then, specifically, remind the jurors of how those questions were answered in favor of the defense, through the examination and cross-examination of various witnesses. Once the evidence has been reviewed, the DUI defense lawyer can use the “rule of threes” to explain to the jury its important responsibility to the defendant accused of driving under the influence:
Ladies and Gentlemen of the Jury,
We have done what we told you we would do: we have answered the questions we set about to answer; we have shown, through examination and cross-examination of witnesses, why the State has failed to meet its burden of proof on each and every element of the offenses charged; and we have shown that Jane Doe is entitled to your verdict of not guilty. Now, we ask for three final things:
First, we ask that you listen carefully to all of the instructions the judge gives you.
Second, we ask that in your deliberations, you treat Jane fairly, with the dignity and respect that is bestowed upon each of us as human beings and consistent with the protections that each of us has under the law, statutes and constitution of this state and our country.
Third, and finally, we ask that when you come back with your verdict of not guilty, you do so with heads held high because you have done the right, proper and legally correct thing. Thank you.