During a DUI / DWI trial, both the prosecutor and the defense attorney will call several witnesses to testify. One witness the defense may call is the defendant himself. Whether or not a defendant should testify is a tough question for a drunk driving criminal defense lawyer, and the right answer varies depending on the facts of the case.
In some situations, it’s helpful to have a defendant testify to explain an injury or illness, such as chronic acid reflux, emphysema, or diabetes, that impacted the results of a chemical test. The defendant’s first-hand account may either excuse a chemical test refusal or help explain why the driver’s blood alcohol content (BAC) reading was artificially high.
Jurors are told during jury instructions that they are not to interpret the fact that the defendant did not testify as a sign of that person’s guilt. However, jurors are human, and sometimes are not able to put their personal feelings or beliefs aside. Some may conclude that the defendant didn’t take the stand because he or she is guilty. A good DUI / DWI criminal defense attorney will weigh this possibility against the risk of having the defendant testify.
Despite what jurors may think, there are also good reasons not to have the defendant testify. First, it opens them up to cross-examination by the prosecution. Sometimes the defendant is nervous, emotional, or less than truthful on the stand. This gives the prosecution the opportunity to pick apart the defense and score points against the defense’s own witness.
Sometimes it’s imperative not to have the defendant testify, because he or she was intoxicated, and may not remember details of the stop or arrest. Such a defendant can undo all of the good the defense attorney has done in the DUI trial.
A skilled DUI / DWI defense attorney knows when a defendant should testify, and when he or she should not. In cases where the defendant should testify, an experienced criminal lawyer will prepare that testimony carefully and thoroughly, to help the defendant avoid mistakes and anticipate any attacks from the prosecution on cross-examination.