1 Section V.B. PRE-TRIAL PRACTICE SECTION V. B. SAMPLE QUESTIONS DIRECT EXAMINATION OF ARRESTING OFFICER The direct examination of the arresting officer should begin with laying a foundation by going over the officer's training and experience in investigating DWI offenses. These foundational questions leading to the officer's opinion that the defendant was operating a motor vehicle while intoxicated cover the officer's background in observing driving, signs of intoxication, and use of field sobriety tests, (FST). 1. WHAT IS YOUR OCCUPATION AND ASSIGNMENT? 2. HOW LONG HAVE YOU BEEN A (POLICE OFFICER FOR THE CITY OF ); (TRAFFIC OFFICER WITH THE ARKANSAS HIGHWAY PATROL); (DEPUTY WITH SHERIFF'S DEPARTMENT)? 3, If the officer is a traffic officer: HOW LONG HAVE YOU BEEN EMPLOYED IN TRAFFIC ENFORCEMENT? 4. WHEN YOU WERE AT THE (ARKANSAS LAW ENFORCEMENT TRAINING ACADEMY), DID YOU RECEIVE TRAINING REGARDING THE INVESTIGATION OF DRIVING UNDER THE INFLUENCE OFFENSES? 5. PLEASE DESCRIBE THAT TRAINING. The officer should relate that he has been trained to look for types of driving commonly exhibited by drivers who are under the influence. In addition to the more common "speeding and weaving," it should be brought out that he has been trained to look for any type of driving violation which indicates driver inattention or inability to safely operate a vehicle (too fast, too slow, stopping too soon or too late at limit lines or intersections, failure to observe posted signs and signals, too sharp or too wide turns, etc.) If the defendant exhibited poor driving, be sure the officer includes the defendant's pattern in the list of possible violations. The officer should relate training in the signs or symptoms commonly exhibited by intoxicated persons. If this is a drug or combination of drugs and alcohol case, be sure to cover training in the signs of intoxication of the particular drug. Again, the defendant's signs of intoxication should be included in what the officer has been trained to observe, e.g., bloodshot, watery eyes, odor of alcohol on breath, slow or slurred speech, staggering gait, holding on to the vehicle for support, etc. The officer should describe his training in the administration and evaluation of an FST performance, which is a pre-demonstrated and pre-explained simple balance and coordination test demonstrating the types of impairment caused by alcohol. 6. Ask only if the officer has additional training/education: HAVE YOU RECEIVED ADDITIONAL TRAINING IN DWI INVESTIGATIONS SINCE YOUR INITIAL ACADEMY TRAINING? Answers may include DWI portions of accident investigation or advanced accident investigation courses, drug intoxication recognition courses, college courses, academy refresher courses, in-service seminars and, of
2 course, roll call training. Driving patterns, objective signs/symptoms of intoxication and FST's may be briefly repeated. 7. DO YOU HAVE PERSONAL EXPERIENCE IN THE FIELD IN INVESTIGATING DWI CASES? 8. PLEASE DESCRIBE YOUR FIELD EXPERIENCE TO THE COURT. The officer should begin by describing initial field experience under a training officer who demonstrated and observed the officer in DWI investigations. Patterns of driving, objective signs/symptoms of intoxication, and FST's by drivers under the influence should be covered. 9. APPROXIMATELY HOW MANY DWI INVESTIGATIONS HAVE YOU CONDUCTED OR PARTICIPATED IN? 10. WERE YOU ON DUTY ON (date of offense) AT ABOUT (time of first observations)? 11. WHAT WAS YOUR ASSIGNMENT AT THE TIME? 12. WERE YOU IN A MARKED PATROL CAR (or motorcycle)? 13. WERE YOU IN UNIFORM? 14. WERE YOU ALONE OR WITH A PARTNER? If with partner: WHO WAS YOUR PARTNER ON THAT OCCASION? WERE YOU DRIVING OR WAS YOUR PARTNER? 15. WHAT WAS YOUR LOCATION? 16. ON (date of first observation), AT ABOUT (time of first observation), DID A VEHICLE ATTRACT YOUR ATTENTION? 17. WHERE WAS THAT VEHICLE? IS THAT IN THE (CITY) (COUNTY) OF. 18. WHAT WAS YOUR LOCATION IN RELATION TO THE STREETS IN THE AREA? 19. DESCRIBE THE VEHICLE THAT ATTRACTED YOUR ATTENTION. 20. WHAT WAS IT THAT ATTRACTED YOUR ATTENTION TO THAT VEHICLE? 21. HAVE YOU PREPARED A DIAGRAM OF THE AREA AROUND (location of driving and arrest)? To the Court: YOUR HONOR, I HAVE SHOWN THIS EXHIBIT TO THE DEFENSE ATTORNEY. MAY IT BE MARKED AS STATE'S EXHIBIT NO. FOR IDENTIFICATION? 22. DID YOU PREPARE THIS DIAGRAM PRIOR TO YOUR TESTIMONY IN COURT TODAY? 23. WHO ASKED YOU TO PREPARE IT? 24. DOES THE DIAGRAM FAIRLY REPRESENT THE LOCATIONS DEPICTED AS THEY APPEARED ON (date of incident)? 25. IS THE DIAGRAM TO SCALE? (Diagrams hand drawn by the witness are not to scale, but are permissible if the answer to Question 24 is yes.) 26. BRIEFLY DESCRIBE THE DIAGRAM. 27. USING A BLACK MARKER, NOTE ON THE DIAGRAM WITH A P-1 YOUR LOCATION WHEN YOU FIRST OBSERVED THE VEHICLE. 28. USING A RED MARKER, NOTE ON THE DIAGRAM WITH A D-1 WHERE THE OTHER VEHICLE WAS WHEN YOU FIRST SAW IT. 29. DESCRIBE WHAT YOU SAW NEXT AND NOTE ON THE DIAGRAM THE DRIVING
3 PATTERN OF THE VEHICLE. Develop the entire driving and parking sequence. Be sure to cover any of the following which are relevant: (a) distance between officer and vehicle; (b) period of time and/or distance officer observed vehicle; (c) road and traffic conditions; (d) character of area; (e) vehicle's response and how long it took vehicle to respond to red lights, horn, siren, loudspeaker; (f) how far from curb vehicle was stopped. The diagram should depict every location where something significant regarding the driving patter occurred, and these locations should be connected by a red solid or dotted line. The diagram should be offered into evidence, with all other exhibits, at the conclusion of the State's case (just before the State rests). 30. AT THAT TIME DID YOU HAVE AN OPINION AS TO THE CONDITION OF THE DRIVER? The answer should be NO. Rather, the officer should have had a "suspicion" because of driving observed, hour of night or day, etc. 31. IMMEDIATELY AFTER THE VEHICLE STOPPED, WHAT DID YOU DO? 32. DID YOU OBSERVE THE DRIVER OF THE VEHICLE AT THAT TIME? 33. DO YOU SEE THE DRIVER OF THAT VEHICLE IN COURT TODAY? IDENTIFY THE DRIVER FOR THE COURT. 34. WAS ANYONE ELSE IN THE VEHICLE? (If yes, have officer explain how many persons were in the vehicle and where each was seated.) At this point, frame questions to cover the period from just after the stop to just before the field sobriety tests. These observations are sometimes crucial in that they corroborate other evidence of the defendant's intoxication. Include questions which will elicit information such as the smell of alcohol on the defendant's breath, manner in which the wallet was handled and licensed removed, manner in which the defendant stepped from the car, manner in which the defendant walked away from the car (leaning on the car or use of the car for support), a description of the defendant's face, eyes, clothing, speech and any statements made by the defendant, most of which should be admissible under Berkemer vs. McCarty. When the officer uses such terms as "staggered" or "slurred speech", ask the officer to describe these observations in more detail; specifics are always helpful and are crucial in refusal cases. The ideal examination in this area will create a movie for the jury, placing the jurors out on the street with the officer, seeing and hearing everything the officer saw and heard. 35. DID YOU ASK THE DEFENDANT TO PERFORM SOME FIELD SOBRIETY TESTS? 36. WHAT ARE FIELD SOBRIETY TESTS? 37. WHERE WERE YOU AND THE DEFENDANT STANDING WHEN YOU ASKED HIM TO PERFORM THESE TESTS? 38. WHAT WAS THE CONDITION OF THE SURFACE? 39. WHAT WERE THE LIGHTING CONDITIONS? 40. WHICH FIELD SOBRIETY TEST DID YOU ASK THE DEFENDANT TO PERFORM FIRST? 41. DID YOU GIVE ANY DIRECTIONS TO THE DEFENDANT? WHAT DID YOU SAY?
4 42. DID YOU ALSO DEMONSTRATE THIS TEST FOR THE DEFENDANT? 43. DID IT APPEAR TO YOU THAT THE DEFENDANT UNDERSTOOD YOUR EXPLANATION AND DEMONSTRATION? 44. DID THE DEFENDANT ATTEMPT TO PERFORM THE (name of the test)? 45. DESCRIBE THE DEFENDANT'S PERFORMANCE. 46. IN YOUR OPINION, WAS THIS A SATISFACTORY PERFORMANCE OF THE TEST? WHY NOT? 47. DID YOU THEN ASK THE DEFENDANT TO PERFORM ANOTHER FIELD SOBRIETY TEST? WHICH ONE? 48. AT ANY TIME BEFORE OR DURING THE ADMINISTRATION OF THE FIELD SOBRIETY TESTS, DID THE DEFENDANT COMPLAIN OF ANY PHYSICAL DEFECTS OR INJURIES? If yes, officer should explain. 49. DID YOU OBSERVE ANY PHYSICAL DEFECTS OR INJURIES? If yes, officer should describe what was observed, and this additional question should be posed: DID YOU TAKE THAT INTO ACCOUNT IN EVALUATING THE DEFENDANT'S PERFORMANCE OF THE TESTS? 50. AT THIS POINT, DID YOU FORM AN OPINION AS TO THE DEFENDANT'S CONDITION? 51. WHAT IS THAT OPINION? (Defendant was intoxicated and unable to safely operate a vehicle.) 52. WHAT WAS THE BASIS OF THAT OPINION? NOTE: This is the most important question asked of the officer. It allows him to answer in narrative, reviewing his academy and any subsequent training, his field experience with over x-number of investigations, observation of the defendant's driving, physical signs of intoxication, the significance of the defendant's performance on the FST's and any statements made by the defendant. This consistency of the defendant's observed condition with the officer's training and experience with intoxicated persons should be emphasized. 53. DID YOU BASE YOUR OPINION ON ANY SINGLE FACTOR OR ANY SINGLE FST? (No, officer's opinion is based on totality of all observations.) 54. WHAT DID YOU DO NEXT? (Placed defendant under arrest.) At this point, frame questions to cover, in chronological order, what happened after the defendant was placed under arrest. Include, if applicable, statements made by the defendant to the routine questioning regarding sickness or injury; the giving of the chemical admonition; the defendant's selection of or refusal to take a chemical test; the administration of the chemical test; the giving of the Miranda warning; and any statements made by the defendant, particularly those relating to the defendant's condition, e.g., amount and time of last sleep, time, type, amount and duration of alcohol consumption, medication or drugs taken. Questions designed to cover each of these areas are as follows: * SICKNESS, INJURY, etc. 1. DID YOU INQUIRE WHETHER THE DEFENDANT HAD ANY PHYSICAL DEFECTS? WHETHER THE DEFENDANT WAS SICK OR INJURED? WHETHER THE DEFENDANT WAS UNDER THE CARE OF A PHYSICIAN? (WHAT DID THE DEFENDANT SAY?) * CHEMICAL ADMONITION 1. DID YOU EXPLAIN TO THE DEFENDANT THE REQUIREMENT TO TAKE A BLOOD
5 ALCOHOL TEST? 2. IN DOING SO, DID YOU READ A STATEMENT FROM A DOCUMENT? 3. WHAT DOCUMENT? (Usually the arrest report.) To the Court: MAY I APPROACH THE WITNESS? IF THIS A COPY OF THAT ARREST REPORT? 4. DID THE DEFENDANT AGREE TO TAKE A CHEMICAL TEST? 5. WHAT DID THE DEFENDANT SAY? (Indicate the test chosen or the exact words of the defendant's refusal statement.) * REFUSALS 1. DID THE DEFENDANT EVER PROVIDE YOU WITH A BREATH SAMPLE? 2. DID THE DEFENDANT EVER PROVIDE YOU WITH A URINE SAMPLE? 3. DID THE DEFENDANT EVER PROVIDE YOU WITH A BLOOD SAMPLE? 4. DOES THE FACT THAT A CHEMICAL TEST RESULT SHOWING THE BLOOD ALCOHOL LEVEL OF THE DEFENDANT WAS NOT OBTAINED IN ANY WAY AFFECT THE OPINION YOU FORMED OF THE DEFENDANT'S CONDITION? (No, my opinion, based on all my training, field experience and observations of the defendant's driving, physical signs of intoxication, and performance on the FST's was that the defendant was intoxicated.) 5. If a second officer also gave the chemical rights admonition to the defendant: DID ANYONE ELSE ADVISE THE DEFENDANT ABOUT THE REQUIREMENT THAT HE TAKE A CHEMICAL TEST? 6. AFTER THE SECOND ADVISEMENT, DID THE DEFENDANT EVER PROVIDE A BREATH, URINE OR BLOOD SAMPLE? * STATEMENTS BY THE DEFENDANT IMPORTANT: Omit this section if the defendant did not waive Miranda rights. The sole permissible question in that event would be Question No. 2 below; anything more would likely result in mistrial and dismissal of case. 1. DID YOU QUESTION THE DEFENDANT? 2, DID YOU EXPLAIN THE DEFENDANT'S CONSTITUTIONAL RIGHTS? 3. WHEN DID YOU DO SO? 4. DID YOU READ THE RIGHTS FROM A DOCUMENT? 5. WHAT DOCUMENT? (arrest report, Miranda card or field notebook.) 6. DID THE DEFENDANT APPEAR TO UNDERSTAND THOSE RIGHTS? (Permissible lay opinion: See Jefferson's Benchbook, 2d ed., Section 29.1) 7. DID YOU ASK THE DEFENDANT ANY QUESTIONS ABOUT THE RIGHTS AFTER YOU READ THEM? 8. WHAT WERE THE DEFENDANT'S ANSWERS TO THOSE QUESTIONS? 9. AFTER THE DEFENDANT AGREED TO TALK TO YOU, DID YOU ASK ANY QUESTIONS? WHAT WERE THEY AND WHAT WERE THE DEFENDANT'S ANSWERS? (This is calling for a narrative answer. The prosecutor may choose to proceed question by question and must so proceed if a defense objection is sustained.) * COMMON QUESTIONS ON DWI ARREST REPORTS
6 What have you been drinking? How much? Where? With whom? What time did you start drinking? What time did you stop? Do you feel the effects of the drinks? What time is it now? Where were you going? Where are you now? When did you last sleep? How long? What have you eaten today? When? Are you diabetic or epileptic? Do you have any illness or injury? Are you under a doctor's care? Have you taken any medication or drugs? If so, what, when and how much? * BREATH TEST 1. WHERE DID YOU TAKE THE DEFENDANT TO ADMINISTER THE BREATH TEST? 2. WERE YOU THE PERSON WHO ADMINISTERED THE BREATH TEST TO THE DEFENDANT? Most of the time, the arresting officer does not administer the breath test. To prepare the testing officer, see your instructor. * CROSS-EXAMINATION OF OFFICER Explain the expected areas of cross-examination to the officer in your witness interview. Many defense attorneys follow questions suggested in Erwin's Defense of Drunk Driving Cases (3d ed. 1975). Relate how many areas raised on cross-examination can be dealt with on redirect by you. If the defense asks officer to demonstrate FST's, insist that the demonstration be performed in the manner demonstrated to the defendant at the time of arrest. Anything beyond that is clearly irrelevant. If defense asks the officer to perform FST's the way defendant did, object and state that the officer's acting ability? specifically, the ability to act like a person under the influence? is irrelevant. * RE-DIRECT EXAMINATION If the defense brings out that non-dwi's can also fail particular field sobriety tests, point out that that's why more than one FST is given. If the defense has brought out that not all facts testified to by an officer are contained in his police report, ask questions which allow the officer to explain the purposes of writing reports. Present enough information so that he can recall the complete incident when he reviews the reports months later. If the defense has brought out that the officer cannot remember anything about the arrests before or after this defendant, ask questions which allow the officer to explain how he has not reviewed the arrest reports of those persons which would refresh his recollection as has been done in this case. Conclude your redirect examination by asking: OFFICER, IS THERE ANYTHING ABOUT ANY OF YOUR ANSWERS TO THE QUESTIONS ON CROSS EXAMINATION WHICH AFFECT YOUR OPINION AS TO THE DEFENDANT'S CONDITION ON (date)? (No, my opinion still is that he was intoxicated and unable to safely operate a motor vehicle.) SAMPLE QUESTIONS FOR EXAMINATION OF BLOOD ALCOHOL EXPERT * STIPULATIONS Prior to the expert's taking the stand, inquire if the defense will stipulate to expedite the expert's testimony. Sample stipulations include:
7 1. COUNSEL, WILL YOU STIPULATE THAT IS AN INSTALLATION DULY CERTIFIED BY THE STATE OF ARKANSAS TO ENGAGE IN FORENSIC ALCOHOL ANALYSIS (unless excluded or exempted from such regulations)? 2. THAT THE STATE OF ARKANSAS HAS APPROVED (gas chromatograph) (intoximeter mark iv) (intoxilyzer) (breathalyzer) AS A DEVICE FOR MEASURING BLOOD ALCOHOL LEVELS BY BREATH TESTING? 3. THAT THE STATE OF ARKANSAS HAS APPROVED THE GAS CHROMATOGRAPH AS A DEVICE FOR MEASURING LEVELS OF ALCOHOL IN THE BLOOD? 4. THAT (expert witness and/or any other criminalist who tested the breath TESTING instrument on bracket dates) IS CERTIFIED BY THE STATE OF ARKANSAS TO ENGAGE IN FORENSIC ALCOHOL ANALYSIS? If the defense will not stipulate, ask the court to take judicial notice of these facts. if the court will not take judicial notice, it is simple to ask the expert questions covering whether the laboratory is certified by the State to engage in forensic alcohol analysis or exempted from such regulation. CROSS-EXAMINATION OF DEFENSE WITNESSES THE DEFENDANT * DRIVING PATTERN 1. Pin the Defendant down on whether the officer accurately described the driving pattern. 2. Ask the Defendant if the description by the officer represents the Defendant's normal driving pattern. 3. If the Defendant offers an excuse for poor driving, ask whether the Defendant offered that excuse to the officer at the time of the stop. * ACTIVITIES PRIOR TO ARREST 1. Pin the Defendant down in detail as to all activities, including food and drink consumption, work activities, rest, etc., during the whole day prior to arrest. 2. Find out everyone who saw the Defendant prior to arrest after drinking had concluded. Find out if these people know the defendant; if not, find out whether any effort was made to find them. If they are not called as witnesses, mention this in argument. 3. If the Defendant offers any medical excuse, ask whether the arresting officer was so advised. Find out whether medical treatment continues and from whom; if medical testimony is not offered or evidence to corroborate is not presented, emphasize this in argument. * PHYSICAL SYMPTOMS OBSERVED BY OFFICER Ask the Defendant about each symptom observed by the officer: 1. Was speech slurred? If denied, it is unlikely the jury will disbelieve the officers; if admitted, ask if the symptom persists under normal, sober conditions. 2. If there was any trouble getting the license out, ask the defendant to get it out for the jury and have the Court take notice of how
8 long it took. * FIELD SOBRIETY TESTS Ask the Defendant to evaluate the FST performance. Normally, the testimony will be that they were performed pretty well, or there will be an admission of difficulty, coupled with an excuse. When the Defendant admits the tests were not performed well at the scene but offers an excuse, ask whether the excuse was offered to the officer. Do NOT have the defendant demonstrate how he or she performed the FST at the time of the arrest. * ADMISSIONS Fully exploit any admissions. For instance, if the Defendant said "not very much" in response to the question whether the effect of the drinks was felt, inquire as follows: Q. YOU RECALL TELLING THE OFFICERS YOU DIDN'T FEEL AFFECTED BY THE DRINKS VERY MUCH? Q. SO YOU DID FEEL AT LEAST A LITTLE AFFECTED BY THEM, DIDN'T YOU? Q. IN WHAT WAY DID YOU FEEL THAT EFFECT, (etc.)? * DEFENDANT'S FEELINGS ABOUT STATE OF SOBRIETY Pin the Defendant down in detail concerning any opinion regarding the state of sobriety at the time of arrest and whether the effects of the drinks were felt and how much. Normally, the Defendant will admit having been to a bar or with friends in the evening and having consumed some drinks. Denial of any effect at all may be unbelievable; if some effect is admitted, explore this. Q. ARE YOU TELLING US THAT YOUR PHYSICAL CONDITION (BALANCE, COORDINATION, ETC.) WAS THE SAME WHEN YOU WERE STOPPED BY OFFICER AS IT IS RIGHT NOW IN COURT? (If denied but explained by something other than alcohol, first go into detail as to every way in which it was different, then ask if it isn't possible if these differences might be in part associated with the consumption of alcohol.) * SYMPTOMS OF OVER CONSUMPTION OF ALCOHOL Try to inquire whether the Defendant has had sufficient experience with alcohol to know what personal symptoms it produces, particularly when an excessive amount has been consumed. If such symptoms are admitted, then go down the list of all symptoms the officer observed and ask if each is a symptom in the personal experience of the Defendant after an excessive amount of alcohol has been consumed. Usually the Defendant will concur; then you have developed some good opportunities for argument. GENERAL WITNESSES This witness will invariably testify about being with the Defendant for a stated period of time prior to the arrest. The witness will further offer the opinion the Defendant wasn't drunk. Start off by establishing the relationship to the Defendant. Since the witness is usually a friend or drinking companion of the Defendant, this puts the testimony in its proper perspective, i.e., helping a friend in trouble. After establishing the relationship, develop a detailed account by the witness concerning the day of arrest. This includes the number of drinks consumed by each person, the places visited and the activities. You are trying to establish that: (1) the witness wasn't really watching the Defendant that closely to be able to testify that the Defendant was sober, and (2) the witness consumed enough drinks so that the witness's opinion of the Defendant's sobriety is highly suspect.
9 Next, attempt to show through the witness that the Defendant, was, in fact, under the insurance, or, if that can't be done, show that the witness isn't qualified to say whether the Defendant was under the influence. You have already established the number of drinks the Defendant had according to the witness. If the witness insists that is all the drinks the Defendant had, then you can assume the jury feels the witness has greater powers of recollection. Your job is to destroy that assumption. Your attempt to do so by first building the witness up: Q. YOUR ARE ABSOLUTELY SURE THAT YOU WERE WITH THE DEFENDANT IN SAM'S BAR ON AUGUST 2? Q. YOU ARE SURE OF THAT BECAUSE YOU DISTINCTLY REMEMBER AT THIS TIME? Q. YOU DISTINCTLY REMEMBER THAT YOU ARRIVED THERE WITH THE DEFENDANT BETWEEN 9:00 AND 9:15 P.M.? Q. YOU DISTINCTLY REMEMBER AT THIS TIME THAT YOU HAD ONLY ONE DRINK DURING THE COURSE OF THE EVENING? At this time the Court should have been left with the impression that the witness enjoys total recall. If there were other persons present in addition to the witness and the Defendant, have the witness describe exactly how much and what they had to drink. Memory is likely to fade quickly, and this will seem odd if you have previously established that recollection of the number of drinks the Defendant had was a product of the witness's own recall as opposed to suggestion of Defendant or someone else. Inquire as to how many times the witness has been with the Defendant on similar occasions and then test recall as to drinks consumed on those occasions. Ask the witness to describe what the Defendant was wearing; if the witness remembers the number of drinks, such things as attire should also be remembered. Toward the end of your examination, ask if the witness knew what Defendant's condition was at the time of the arrest. This is an especially good question if the witness and Defendant parted company a few hours before the stop. To establish through the defense witness that the Defendant was under the influence, if the witness has stated an opinion that the Defendant was not drunk, the following approach is suggested. The first thing to do is define the terms. When a witness testifies the Defendant was not drunk, it is a negative statement; the witness is not saying the Defendant was sober. You're not interested in whether Defendant was "drunk" but rather whether Defendant was under the influence. Since the witness has given an opinion, you are entitled to question the basis of that opinion. Request a description of slurred speech, staggering, swaying, inability to stand, etc. Once you have established this description from the witness, then work down the scale of intoxication. Often you can get a witness to say that the Defendant was "having a good time". Use the term "loose" or "relaxed"; most people rationalize drinking alcohol by indicating that it is a relaxant; i.e., in the bar). In the event you cannot get the witness to say that the Defendant was "relaxed", then you should turn to the question of whether the witness has seen the Defendant intoxicated at other times, so that the Defendant's state of intoxication could be recognized by the witness. If the witness has observed the Defendant intoxicated previously, then describe each symptom reported by the arresting officer and ask the witness if those are symptoms exhibited by the Defendant when intoxicated. Establish that the witness was not watching the Defendant as closely or as long as the officers did, and ask if the witness gave the Defendant any balance tests or other tests which might indicate the degree of intoxication. Often the witness will say the Defendant walked some short distance, usually from the table to the rest room, and then will say that
10 the Defendant had no trouble making the trip. If so, your line of questioning should go something like: Q. WAS YOUR ENTIRE ATTENTION FOCUSED UPON THE DEFENDANT DURING THE WALK TO AND FROM THE REST ROOM DOOR? Either an affirmative or negative answer is in your favor. If No, then the witness has lost a basis for expressing an opinion of sobriety. If Yes, the following line of questions can be pursued: Q. DID YOU WATCH THE DEFENDANT WALK FROM THE REST ROOM TO YOUR TABLE? Q. DID YOU FOCUS YOUR ENTIRE ATTENTION UPON THAT WALK? Q. IN WATCHING, WERE YOU ATTEMPTING TO DETERMINE THE DEFENDANT'S STATE OF SOBRIETY? Q. WAS THE DEFENDANT WALKING IN THE NORMAL MANNER, THAT IS, NOT HEEL-TO-TOE? Q. DID THE DEFENDANT WALK A STRAIGHT LINE FROM THE TABLE TO THE REST ROOM DOOR? Here is a good example of viewing the scene so that you can determine whether a person could walk a straight line to the rest room. Q. ARE YOU SAYING THAT THE DEFENDANT DIDN'T STAGGER AND STUMBLE? Q. ARE YOU SAYING THAT THE DEFENDANT DIDN'T FALL? Q. ARE YOU SAYING THAT THE DEFENDANT DIDN'T BOUNCE OFF ANY OF THE WALLS? Q. THEN I TAKE IT THAT WHAT YOU WERE SAYING IS THE DEFENDANT WAS NOT FALLING-DOWN DRUNK? Keep in mind during the cross-examination of the defense witness (or the Defendant), that the witness may honestly believe that the Defendant was not intoxicated. This belief is based on the witness's concept of someone who is too intoxicated to drive, which usually is a person bouncing off the walls. Therefore, do not conclude with a mere negative statement that the Defendant was not intoxicated. Make the witness convey to the jury a picture of someone who is too intoxicated to drive. You will find, more often than not, that the witness's concept of the driver who is under the influence is above the standards set by law. If the witness admits to never having seen the Defendant intoxicated previously, then start questioning the basis of with witness's opinion. For example: Q. YOU HAVE NEVER SEEN THE DEFENDANT UNDER THE INFLUENCE? Q. DO YOU BASE YOUR OPINION THAT THE DEFENDANT WAS NOT DRUNK ON COMPARISON WITH INTOXICATED PERSONS YOU HAVE SEEN? Q. WOULD THAT BE THE PERSON WITH THE SLURRED SPEECH, STAGGERING GAIT, ETC.? Q. HAVE YOU SEEN THE DEFENDANT DRINK AN ALCOHOLIC BEVERAGE BEFORE? Q. YOU DO AGREE THAT A PERSON CAN FEEL THE EFFECTS OF ALCOHOL WITHOUT BEING DRUNK? Q. WHEN YOU SAY YOU HAVE NEVER SEEN THE DEFENDANT INTOXICATED, DONT YOU MEAN THAT YOU HAVE NEVER SEEN THE DEFENDANT INTOXICATED TO THE POINT OF INABILITY TO WALK, TALK, ETC.? Q. WHEN ASKED TO SEARCH YOUR MEMORY CONCERNING THE DEFENDANT'S STATE OF SOBRIETY ON THE DAY OF ARREST, DIDN'T YOU THINK BACK AND REMEMBER THE
11 DEFENDANT WAS NOT DRUNK? Q. YOU WEREN'T SEARCHING YOUR MIND TO DETERMINE WHETHER THE DEFENDANT MAY HAVE BEEN FEELING THE EFFECTS OF ALCOHOL, WERE YOU? If the witness takes the position that the Defendant was absolutely sober, follow a line of questioning which will enable you to argue that to believe witness's statement is to believe the police officers took the Defendant off the streets without justification. Q. THE DEFENDANT WAS NOT IN ANY WAY FEELING THE EFFECTS OF THE ALCOHOL? Q. PERFECTLY SOBER? Q. AS THOUGH NOTHING TO DRINK? Q. AS SOBER AS IN COURT TODAY? Q. NO CHANGE IN SPEECH PATTERN? Q. NO CHANGE IN WALKING ABILITY? Q. NO CHANGE IN BALANCE ABILITY? Q. EVER SEE THE DEFENDANT DRIVE A CAR WHEN SOBER? Q. ANY DIFFICULTY IN CONTROLLING A CAR? Q. WEAVE WHEN DRIVING? Q. SO FAR AS YOU KNOW, THE DEFENDANT WAS ACTING AND DRIVING PERFECTLY NORMAL ON THE DAY OF THE ARREST? Q. THERE WAS NOTHING IN THE DEFENDANT'S ACTIONS OR DRIVING, SO FAR AS YOU KNOW, WHICH WAS OUT OF THE ORDINARY TO THE POINT THAT IT WOULD ATTRACT POLICE? BARTENDERS This witness for the defense is extremely vulnerable to cross-examination. They will usually say the Defendant had only two drinks at their place of business and was sober when served. The questioning should proceed as follows: Q. YOU TESTIFIED THAT ON THE DAY OF THE ARREST THE DEFENDANT WAS IN YOUR ESTABLISHMENT, IS THAT CORRECT? Q. WHAT WAS THE DATE? Q. WHAT WAS THE DAY OF THE WEEK? Q. WHAT TIME DID YOU BEGIN YOUR WORK AT THE BAR ON THAT DATE? Q. HOW LONG AFTER YOU BEGAN WORKING DID THE DEFENDANT ARRIVE? Q. BETWEEN THE TIME YOU BEGAN WORKING AND THE TIME OF THE DEFENDANT'S ARRIVAL, WERE THERE ANY OTHER CUSTOMERS IN THE BAR? Q. HOW MANY CUSTOMERS ARRIVED AND DEPARTED DURING THAT PERIOD OF TIME? Q. HOW MANY CUSTOMERS WERE PRESENT IN THE BAR AT THE TIME OF THE DEFENDANT'S ARRIVAL? Q. WHEN THE DEFENDANT ARRIVED WAS HE IN THE PRESENCE OF ANY OTHER PERSONS? PLEASE IDENTIFY THEM?
12 Q. WHAT DID THE DEFENDANT DO AFTER HE ARRIVED AT THE BAR? Q. WHAT WAS THE DEFENDANT WEARING? Q. HAD YOU SEEN THE DEFENDANT IN THE BAR ON OTHER OCCASIONS? Q. ON HOW MANY OCCASIONS HAD YOU SEEN THE DEFENDANT IN THE BAR? Q. AFTER ARRIVING IN THE BAR DID THE DEFENDANT ORDER A DRINK? Q. WHAT DID THE DEFENDANT ORDER? Q. DID YOU SUPPLY THE DEFENDANT WITH A DRINK? Q. AT THE TIME YOU PROVIDED THE DRINK WERE THERE ANY OTHER PERSONS PRESENT IN THE BAR? Q. PLEASE IDENTIFY THE OTHER PERSONS. Q. WHAT WERE YOU, THEY DRINKING? Q. WHAT WERE THEY WEARING? Q. HOW LONG DID THE DEFENDANT REMAIN IN THE BAR THAT EVENING? Q. DID YOU OBSERVE ANY CHANGE IN THE DEFENDANT'S DEMEANOR DURING THE EVENING? Q. HOW MANY DRINKS DID YOU PROVIDE THE DEFENDANT? Q. OF COURSE YOU DON'T KNOW HOW MANY DRINKS MAY HAVE BEEN CONSUMED BEFORE ARRIVAL AT YOUR BAR, DO YOU? Q. AND YOU DON'T KNOW HOW MANY DRINKS MAY HAVE BEEN CONSUMED AFTER DEPARTURE FROM YOUR BAR, DO YOU? Q. DID ANY UNUSUAL INCIDENT OCCUR DURING THE TIME THE DEFENDANT WAS IN THE BAR? Q. PRIOR TO THE TIME THE DEFENDANT DEPARTED FROM THE BAR DID OTHER PERSONS ENTER AND LEAVE THE PREMISES? Q. HOW MANY PERSONS WERE PRESENT AT THE TIME THE DEFENDANT DEPARTED? Q. DURING THE TIME THE DEFENDANT WAS PRESENT IN YOUR BAR DID YOU CONSUME ANY ALCOHOLIC BEVERAGES? Q. WHEN DID YOU FIRST LEARN THAT THE DEFENDANT HAD BEEN ARRESTED AFTER LEAVING THE BAR? Q. WHO INFORMED YOU THAT THE DEFENDANT HAD BEEN ARRESTED? Q. WHERE DID THAT CONVERSATION OCCUR? Q. WHAT WAS THE LENGTH OF THAT CONVERSATION? Q. WHAT OTHER PERSONS WERE PRESENT AT THE TIME OF THE CONVERSATION? Q. PLEASE RELATE THE SUBSTANCE OF THE CONVERSATION? Q. HAS THE DEFENDANT VISITED YOUR BAR SINCE (date of arrest)? Q. HOW MANY TIMES? Q. ON HOW MANY OCCASIONS HAVE YOU DISCUSSED WITH THE DEFENDANT THE EVENTS OF THE DAY OF THE ARREST?
13 Q. YOU'VE TESTIFIED THAT THE DEFENDANT WAS NOT DRUNK. YOU'VE SEEN A DRUNK BEFORE, HAVEN'T YOU? Q. DESCRIBE THE SYMPTOMS OF SOMEONE YOU BELIEVE TO BE DRUNK? Q. BEFORE SERVING SOMEONE DO YOU MAKE IT A POINT TO CHECK THEIR STATE OF SOBRIETY? Q. ISN'T IT A FACT THAT WHEN YOU ARE CHECKING A PERSON'S STATE OF SOBRIETY YOU ARE LOOKING ONLY FOR THE DRUNK AND NOT THE PERSON WHO IS LOOSE, RELAXED, OR A LITTLE BIT TIPSY? The above set of questions are asked for the purpose of making three points on final argument. First, the bartender's recollection of this particular customer on the day in question is highly questionable. Second, even assuming the bartender does remember the Defendant, the bartender's opinion of the Defendant's sobriety is of little value because all the bartender ever really looks for is a person who is drunk to the point that more alcohol should not be served, as opposed to a person who is under the influence. DEFENSE EXPERTS During the past few years it has become more common for the defense to hire "experts" to testify, especially in breath cases. Police laboratory criminalists frequently report that such testimony should be vigorously challenged in cross-examination and in the use of the criminalists as a rebuttal witness, because the defense witnesses often testify that accepted tests are totally unreliable and relate facts which are scientifically incredible. If possible, the State's criminalists should observe the testimony of the defense expert so as to be able to assist in the development of lines of cross-examination and areas to be covered in rebuttal, using the criminalist again as a rebuttal witness if necessary. Perhaps the most effective method of impeachment of the defense expert is the gathering of transcripts of that witness's previous testimony. Most prosecuting agencies have begun to order and retain in a file the transcripts of such testimony, and frequently exchange the transcripts between agencies so that each agency has examples of the expert's previous testimony from a variety of jurisdictions. Inconsistencies between the transcripts and indications of bias from previous testimony are generally sufficient to convince the jury to disregard the expert's opinion. In addition, many defense attorneys use Erwin's, Defense of Drunk Driving Cases (1981) in preparing the defense attack. The prosecutor can anticipate the direct examination of the defense expert by referring to this book. The following list of possible questions for use during the cross-examination of a defense expert is meant to provide suggestions only. Each trial requires a different approach - there is no substitute for good trial sense. Q. WHEN WERE YOU RETAINED BY THE DEFENSE IN CONNECTION WITH THIS CASE? Q. WHAT WILL BE YOUR FEE FOR YOUR WORK IN CONNECTION WITH THIS CASE? Q. WHAT PORTION OF THIS FEE HAVE YOU ALREADY RECEIVED? Q. HOW MANY TIMES IN YOUR CAREER HAVE YOU TESTIFIED AS A DEFENSE WITNESS IN A CASE INVOLVING THE CHARGE OF DRIVING UNDER THE INFLUENCE OF
14 ALCOHOL? Q. HOW MANY TIMES HAVE YOU SO TESTIFIED DURING THE LAST YEAR? Q. WHAT WOULD YOU ESTIMATE YOUR TOTAL INCOME IN THE LAST YEAR HAS BEEN AS A RESULT OF YOUR WORK AS A DEFENSE WITNESS? Q. WOULDN'T IT BE CORRECT TO SAY THAT YOU HOPE TO BE RETAINED IN THE FUTURE AS A DEFENSE WITNESS? Q. ISN'T IT A FACT THAT YOU ARE CONCERNED THAT IF THIS DEFENDANT IS CONVICTED IT MAY REDUCE THE NUMBER OF TIMES IN THE FUTURE THAT YOU ARE RETAINED AS A DEFENSE WITNESS? Use the following line of questioning if the witness offers an opinion that not all people are under the influence until they reach some blood alcohol level in excess of 0.10 percent. If the witness has not so testified, consider asking "At what level do you believe all persons are intoxicated?" and then proceed with the following questions: Q. ISN'T IT TRUE THAT IN YOUR OPINION NOT ALL PERSONS ARE INTOXICATED UNTIL A BLOOD ALCOHOL LEVEL OF % IS AN] OPINION SHARED BY A DISTINCT MINORITY? Q. ARE YOU AWARE OF, AND HAVE YOU CONSIDERED, THE POSITION OF THE NATIONAL SAFETY COUNCIL? ISN'T IT TRUE THAT THE NATIONAL SAFETY COUNCIL HAS ADOPTED THE POSITION THAT ALL PERSONS ARE INTOXICATED AT A 0.08% BLOOD ALCOHOL LEVEL? Q. ARE YOU AWARE OF, AND HAVE YOU CONSIDERED, THE POSITION OF THE AMERICAN MEDICAL ASSOCIATION? ISN'T IT TRUE THAT THE AMERICAN MEDICAL ASSOCIATION HAS PUBLISHED THE OPINION THAT ALL PERSONS WITH A BLOOD ALCOHOL LEVEL OF 0.10% "SUFFER A SEVERE, SIGNIFICANT, AND DANGEROUS DETERIORATION IN DRIVING ABILITIES? (See Alcohol and the Impaired Driver, American Medical Association (1972), at 59) Q. WOULDN'T IT BE IMPORTANT TO YOU, IN DETERMINING WHETHER A PARTICULAR SUBJECT WAS INTOXICATED, TO KNOW WHAT THE PERSON AT THE SCENE OBSERVED AS TO THE SUBJECT'S OBJECTIVE SIGNS OF INTOXICATION? Q. ISN'T IT TRUE THAT, IN DETERMINING WHETHER A PERSON IS UNDER THE INFLUENCE OF ALCOHOL, ONE SHOULD NOT CONSIDER ONE SYMPTOM ALONE BUT SHOULD RELY ON ALL OF THE OBSERVATIONS TAKEN TOGETHER. List the Defendant's observed symptoms of intoxication and, after each, ask a question such as: Q. WOULDN'T THE FACT THAT A PERSON DROVE IN A WEAVING PATTERN AND DROVE OVER THE CENTER LINE FOUR TIMES IN HALF A MILE BE CONSISTENT WITH ONE WHO IS INTOXICATED? After asking a similar question for each of the Defendant's primary symptoms, post this question: Q. IF YOU OBSERVED ALL OF THESE SYMPTOMS IN ONE PERSON, ISN'T IT LIKELY THAT PERSON WAS INTOXICATED AT THE TIME? Q. ISN'T IT FAIR TO SAY THAT, GIVEN THE EFFECT OF ALCOHOL ON THE HUMAN BODY, IF A PERSON SHOWS THE OUTWARD PHYSICAL SYMPTOMS OF ALCOHOL INTOXICATION, THEN THAT PERSON IS ALREADY MENTALLY IMPAIRED? Q. HAVE YOU EVER RUN CONTROLLED TESTS ON AN INDIVIDUAL TO DETERMINE AT WHAT SPECIFIC LEVEL THAT INDIVIDUAL BECAME UNDER THE INFLUENCE? Q. COULD YOU HAVE DONE THIS FOR THE DEFENDANT? Q. DID YOU DO THIS FOR THE DEFENDANT?
15 Q. DID YOU OBSERVE THE DEFENDANT ON (date of offense) AT (time of offense) AT (location of driving)? THEN YOU DO NOT KNOW WHETHER THE DEFENDANT WAS INTOXICATED ON THAT PARTICULAR OCCASION, DO YOU? This is usually an effective concluding question to highlight the difference between the expert's opinion and that of the officer.