| In order to present an effective drunk driving defense, | | | | When conducting the inquiry in this manner, the jurors |
| the criminal defense attorney must set up his theories | | | | are making the conclusions and finding the reasons |
| during jury selection. In a breath test refusal case this | | | | behind them on their own. By having the jurors |
| means showing prospective jurors the flaws in field | | | | "discover" the ways in which the exercises are |
| sobriety testing during voir dire. The most effective | | | | designed for failure the jurors are much more likely to |
| way to do this is to allow the jurors to reach the | | | | claim the notion as their own than if you had lectured |
| conclusions you want them to through your questioning. | | | | them on the topic. |
| STEP ONE: Define the terms. From the DWI defense | | | | This line of questioning allows you to address the |
| perspective, they are not field sobriety tests, they are | | | | problems associated with the Pen and Eye Test, the |
| police coordination exercises or balancing exercises or | | | | Walk and Turn, the Romberg and the One Leg Stand. |
| calisthenics. Allowing the prosecutor to define the | | | | STEP FOUR: Attack the scoring. All of these |
| terms means you are validating those terms to the | | | | exercises present many motorists with plenty of |
| jurors. | | | | opportunity to fail. However, the scoring system is |
| It's not the Horizontal Gaze Nystagmus Test, it's the | | | | flawed as it neglects to take into account with the |
| Pen and Eye Test. It's not nystagmus, it's eye-twitching. | | | | driver did right. For example, a person will take a total |
| STEP TWO: Impeaching the police officer. The officer | | | | of 18 steps in the Walk and Turn. On each of those |
| who administered the coordination exercises will likely | | | | steps the person has to touch heel to toe, keep his |
| testify that the tests are designed to indicate whether | | | | arms down, stay on the line and not stop. While the |
| a motorist has lost the use of his or her physical | | | | officer is taught to look for just one misstep, you need |
| faculties. He will testify that the positions he puts a | | | | to point out to the jury the number of things the driver |
| suspected drunk driver in are not too far removed | | | | got right. |
| from what we would consider normal. | | | | To do this, ask the jurors if they think it would be fair |
| Common sense tells us otherwise, however. Ask the | | | | for a teacher to give an exam without telling the |
| jurors during voir dire if a person has better balance | | | | students how the exam would be graded. Ask them if |
| standing with his feet close together or standing with | | | | they think it would be fair for the teacher to flunk a |
| his feet shoulder-width apart. The jurors will choose | | | | student who got over 80% of the questions right. |
| the latter. Ask the jurors whether a person has better | | | | STEP FIVE: What is normal? The issue in a refusal |
| balance standing with his head tilted back and his eyes | | | | case is often whether or not the driver lost the normal |
| closed or looking straight ahead. Again, the jurors will | | | | use of his or her mental or physical faculties. What the |
| choose the latter. Thus, when the officer testifies that it | | | | exercises don't measure, however, is what the driver's |
| doesn't matter how the person stands, the jurors will | | | | normal physical abilities are. I like to use shoe sizes as |
| know that the officer either is lying or ignorant. | | | | an example of what average means. |
| STEP THREE: The tests are designed for failure. The | | | | Tell the first third of the panel that they all wear size 8 |
| key to showing the panel how the tests are designed | | | | shoes. The second third all wear size 9 shoes and the |
| for motorists to fail is to let the jurors make that | | | | final third all wear size 10 shoes. Now point out that the |
| discovery on their own. You do this by laying out the | | | | average shoe size (based on this example) is size 9. |
| argument but never actually making the argument | | | | Now ask the panelists in the first third how the size 9 |
| itself. | | | | shoes would fit on their feet. Then ask the panelists in |
| To set it up, tell the jurors that they have been chosen | | | | the final third how the size 9 shoes would fit on their |
| to create a series of tests to make people look | | | | feet. The jurors will quickly learn that average does not |
| uncoordinated or unbalanced. Most of this step | | | | equate to normal. |
| involves going into more detail on the things motorists | | | | By handling these issues in voir dire you have set your |
| are asked to do during the coordination exercises. I like | | | | jury up for your cross examination of the officer who |
| to start off asking the first panelist if she would have a | | | | administered the coordination exercises. The jury |
| person stand with their feet close together or | | | | would have already determined whether the exercises |
| shoulder-width apart (note that this also helps to | | | | were fair and, if your client performed well, it could |
| accomplish our goal in Step Two). If the juror says | | | | mean the difference between an acquittal and a |
| close together, I will ask the next panelist if she agrees. | | | | conviction. |
| If she does I'll ask the next juror why. | | | | If you've been wrongly arrested for DWI, you need an |
| I'll then cover walking with your heels and toes touching | | | | experienced DWI attorney to defend your rights and |
| versus taking natural steps and walking with your arms | | | | restore your reputation. |
| pinned down to your sides versus swinging them. | | | | |