Common DUI Defenses – Trial Tactics

If you are charged with a DUI the best thing you can do is be informed. There are many common defenses put forth by criminal defense attorneys as well as common counterarguments made by prosecutors. As a client you can and should be heavily involved in the strategies employed by your criminal lawyer. To learn more about your options it is important to contact a Southern California DUI lawyer. Additionally, you may review the below article published by the NDAA describing common DUI trial defenses and common prosecutor rebuttals:

Common Trial Tactics

How any case is defended is unique to each case and each defense lawyer. To say that there are “common” tactics only means that there are certain recurring themes, and you should be prepared for them.

Attacking the Investigation

In many DUI cases, the best defense is to attack the investigation in some way. These defenses tend to fall into a few broad and often overlapping variations:

1. Alternative explanations for the officer’s observations;
2. Attacks on the officer’s observations;
3. Alternative explanations for the blood alcohol concentration (BAC);
4. Attacks on the BAC.

Many of the arguments try to exploit the difference between what the jurors think they know and what really goes on in the field. For example, many people believe that the SFSTs are extraordinarily hard to do and designed to generate a failure. How many in the general public believe that one standard field sobriety test is to say the alphabet back- wards?

Practice Tip: Defendants profit from the empathy that jurors may have for them. Many people have driven after a few drinks and truly believe that they were not impaired. If the prosecutor doesn’t do it for them, jurors will define what it means to be impaired. And, their definition may be favorable to the defendant, if only because jurors are reluctant to admit that they may have driven while impaired and broken the law.

Attacking Observations of Driving

It makes sense that the defense will attack the officer’s observations. Many acquittals have been achieved by the defense convincing a juror that his client’s driving was not that bad or attributable to something other than the drinks he had on the way home.

WEAVING INSIDE THE LANE, SHARP OR WIDE TURNS: It is not illegal to stay within the painted lines, is it? There are many reasons for corrections of steering, like poor alignment? Lighting a cigarette? Putting in a CD? The crown of the road? It is not illegal to turn wide when there is no opposing traffic or hazard, is it?

SPEEDING OR GOING SLOWLY: Many people speed, don’t they? Did you suspect each of them of drunk driving? Have you ever been lost?

BLACK AND WHITE FEVER: You testified to “bad driving,” but you were in a marked patrol car, correct? No reason why the defendant couldn’t have seen you in the rearview mirror? And if he did, he probably kept his attention on you a great deal? If he glances up to the mirror, he could swerve within his lane or even out of it, couldn’t he? His speed could drift a little? And if you followed him for a mile, you would see every swerve? But, you never saw him drive once without your patrol car in his mirror, did you?

THE NHTSA CLUES: There are more than 20 different clues you are taught to look for, aren’t there? That’s virtually every possible driving behavior, isn’t it? One of the clues is wide turns? And one is sharp or abrupt turns? Those are opposites, so no matter what the driver does he’s looking like he’s drunk?

RESPONSE: Watching an officer struggle to answer these questions on the stand is difficult; however, keep in mind that the defense attorney is not trying to raise doubt about what the officer saw in the field. Indeed, the tacit assertion of these questions is that the client really did weave. The defense wants the jury to believe that there might be another explanation for what the officer saw and that any driving behavior short of staying absolutely straight in one’s lane is a DUI clue.

Attacking Observations During Personal Contact

Odor of Alcohol: Alcohol really doesn’t smell, does it? The flavoring does? It’s impossible to tell how much of any drink someone had by the smell, isn’t it? Some drinks with a low alcohol content, like red wine, can leave the breath smelling strong with just a few sips? Other very high proof liquors smell hardly at all, don’t they? You can’t tell when they drank from the smell, can you?

Disheveled clothing: Officer, you dressed appropriately for court today, didn’t you? You wanted to show the court and jury the appropriate respect? And my client, he dressed appropriately, too. But he looked different the night you arrested him, didn’t he? Before that night, you had never seen my client? You have no idea if he’s usually a sloppy dresser, do you? Being a slob is not a crime, is it?

Blood-shot, watery eyes: There are many causes for blood-shot watery eyes, aren’t there? Fatigue? Lack of sleep? Using the window defroster or blower while wearing contacts? Seasonal allergies and other medical conditions? You didn’t ask about those, did you?

Fumbled with wallet and documents: Have you ever been scared? Your body reacted to that adrenaline dump, didn’t it? Your heart beat faster? Maybe your hands shook?

RESPONSE: The first response to this line of attack is the officer still on the scene. Did he ask about mechanical problems? If the driving clues he saw could have been caused by bad alignment, he should ask about it to exclude it. This is anticipating the lie! By asking the question at roadside, the officer takes away from the defendant’s testimony that the weaving was caused by poor alignment or some cause other than impairment.

The next response is to remind the jury that the clues are just that – clues. The driver’s behavior should be analyzed in the context of all the other clues or evidence of impairment. The fact that weaving within one’s lane is not illegal is completely irrelevant. It becomes relevant when considered together with all the other observations and evidence of impairment. Similarly, while the odor of alcohol, standing alone, may not prove impairment, taken with all the other evidence, it makes sense that we hear that the defendant smelled of alcohol.

Finally, don’t forget at closing what the defense lawyer said and asked during trial. Chances are there was no evidence that the observable driving clues resulted from some other cause and the defense lawyer will not argue the point. That allows you to point out to the jury that there is no evidence of any of the alternative explanations.

PARABLE. One day
seven blind mice
were surprised to
find a strange Thing
by their pond.
“What is it?” they
cried. Red Mouse
said, “It’s a pillar.”
“No, it’s a snake!”
said Green Mouse.
“Can’t be,” said
Yellow Mouse. “It’s a spear.” “No, no,” said Purple Mouse. “It’s a great cliff.”“Oooo, it’s a fan,” Orange Mouse cried. “What’s the big deal,” said Blue Mouse. “It’s nothing but a rope.” Then, they all began to argue.

Until White Mouse, the seventh mouse, went to the Thing. She ran up one side and down the other. She ran across the top and from end to end. “Ah,” said white mouse.“Now,I see. The Thing is as sturdy as a pillar, supple as a snake, wide as a cliff, sharp as a spear, breezy as a fan, stringy as a rope, but altogether the Thing is…an elephant!” The other mice ran up one side and down the other, across the Thing from end to end, and they agreed, too.

The Mouse Moral: Knowing in part may make a fine tale, but wisdom comes from seeing the whole.

The same can be said about messy clothing or other personal contact clues, like using the car for balance or stumbling when getting out of the car. Taken alone, they can be relatively innocuous and innocent, but it’s unlikely that all of the clues observed by the officer can be explained by anything other than the defendant was impaired.

PRACTICE TIP: Take great care in assessing cases in which the police stop a female driver at night. These situations can be particularly scary to women because they may be vulnerable. A clever defense attorney may cite this fear to explain the officer’s observations of suspected impaired driving