In a DUI / DWI trial, both the defense attorney and the prosecutor will call witnesses that support each one’s theory of the case. The prosecution usually begins its case by calling the officer who arrested the person for drunk driving. This is a difficult part of the case, because the officer is going to offer evidence that is damaging to the defense case.
The prosecutor goes through the evidence with the officer step by step. Typically, the officer will begin by testifying about the driving pattern of the person arrested for DUI. This is usually how the officer establishes that there was probable cause to make an arrest. He or she may testify that the defendant was weaving between lanes, driving without headlights, etc.
Next the prosecutor will have the officer testify about the traffic stop. The officer will describe how the defendant responded to the request to pull over, how he or she drove, and the initial observations made by the officer when they spoke. These initial observations include whether the officer smelled alcohol, whether the driver’s speech was slurred, or any other symptom of intoxication.
The officer will then testify about the driver’s ability to perform on a field sobriety test. The officer will testify as to what field sobriety tests the driver performed and any variation between the driver’s performance and how the tests are meant to be completed. Because these tests are designed to be failed, the officer will usually only testify as to the things the driver did poorly, leaving out things the driver may have done well. An experienced DUI / DWI lawyer will question the officer during cross-examination about aspects of the tests on which the driver performed well.
The officer will then testify in regards to any breath or chemical tests that were performed. The officer usually explains that he or she asked the driver to submit to a chemical test. The officer will then establish the procedures regarding the chemical test and the chain of custody of any sample (blood or urine, because breath samples cannot be retained) that were taken from the defendant. Finally, the officer testifies about the chemical test results as evidence the driver’s blood alcohol level (BAC).
Finally, the officer will testify about the actual arrest of the defendant. The officer will talk about the basis for the arrest – he or she will usually say it was based on the “totality of the evidence” – and any statements made by the defendant.
After the prosecutor completes the direct examination of the officer, the defense attorney begins cross examination. The experienced DUI defense lawyer can use this opportunity to poke holes in the prosecutor’s case. Cross-examination in a Driving Under the Influence case is not so much an examination as it is the defense lawyer testifying. The most effective cross-examination occurs when a lawyer delivers his questions in a manner which forces the witness to answer yes or no. This allows the defense attorney to testify to what he or she wants the jury to hear.
Besides jury selection, cross-examination of the arresting officer is the most important part of the trial for the defense. Scoring points with the prosecution’s witness, rather than with a defense witness, is an effective strategy to win over the jury. In the juror’s mind, most witnesses are going to agree with the side that called them to testify, but if the witness agrees with the opposing side, the jury really pays attention.
The practiced DUI criminal defense lawyer will use cross-examination to bring out the things that the defendant did correctly when he was pulled over and arrested. For example, the police officer may have written in the arrest report that the defendant was speeding and ran a red light, but will neglect to mention that the driver signaled when pulling over, or responded immediately to any requests for documents.
The officer will always include that the person had red, watery eyes, slurred speech, and odor of alcohol on his breath, but will not testify voluntarily that the person acted in any manner consistent with a sober person. The officer will always write down even the smallest errors committed in the field sobriety tests, even if these things do not indicate that a person is under the influence. Cross-examination of the officer is the time when the DUI defense attorney can bring out positive information to bolster the defendant’s case and discredit the officer.
Cross-examination is a critical aspect of a drunk driving trial, which it is why it’s imperative to consult with a skilled and experienced criminal defense attorney who specializes in DUI / DWI defense.