|
Effective Cross-Examination is Key to Successful DWI
Defense
The most dynamic moment in a DUI trial is the almost
inevitable confrontation between the arresting law enforcement
officer and the defense attorney. This is the moment the
jury has been awaiting, the classical confrontation between
the most important state's witness and what the public describes
as the "hired gun".
To be sure, cases can be won with the skillful use of the
principles and application of science. Realistically, those
victories are few and far between. Most judges and juries
are looking for the opportunities to convict those charged
with DUI, science be dammed. So, while attacking on all
fronts, we must skillfully utilize out options
including that portion of the trial when I believe victory
is most readily attainable. That moment arrives during the
cross-examining of the state's principle witness.
Cross-examination questions are as plentiful as our
imagination and knowledge of the issues will permit. Even
after cross-examining different witnesses many times about a
particular issue, an experienced trial lawyer will often
become aware of the many nuances that should be pursued. The
possibilities are infinite.
|
Pattern 1 |
| In this set of questions, you are
attacking the inherent worth of the breath test. The
pattern can easily be modified to cover any machine,
whenever it was purchased. You are, simultaneously,
tying the law enforcement officer's credibility to the
use of sub-standard equipment. |
 |
| Q. |
You wouldn't knowingly test the
Defendant's breath with a machine that you believed
to be |
|
inaccurate, would you? |
| A. |
Of course not. |
| Q. |
That could lead to the conviction of
an innocent person, couldn't it? |
| A. |
That's right. |
| Q. |
You already testified that you have
been a law enforcement officer for seven years,
correct? |
| A. |
Yes, seven years. |
| Q. |
In that capacity do you recognize a
responsibility to be fair to drivers charged with
DUI? |
| A. |
Absolutely |
| Q. |
The machine you used to test the
defendant's breath in this case was the Intoxilyzer
5000, wasn't it? |
| A. |
Yes. |
| Q. |
The Intoxilyzer 5000 cost many
thousands of dollars, didn't it? |
| A. |
I'm not sure. |
| Q. |
You do know, don't you, that the state
is now in the process of purchasing the Intoxilyzer
8000? |
| A. |
Yes, I have heard that. |
| Q. |
These new Intoxilyzers, they are very
expensive aren't they? |
| A. |
I'm not sure. |
| Q. |
Well, you do know that it has taken
the State over one year to raise enough taxpayer's
money to |
|
buy enough of these machines to
replace the old ones, and they still can't afford
it? |
| A. |
Yes. |
| Q. |
Let me make sure I understand this.
You wouldn't use a breath testing machine if you
believed it |
|
were inaccurate, would you? |
| A. |
That's what I said. |
| Q. |
And, now we find out that the state is
going to be spending a fortune to replace one
machine |
|
with another? |
| A. |
A lot of money. |
| Q. |
And the machine they are purchasing is
the new improved 8000 model, as opposed to the old
5000 |
|
model you used in this case? |
| A. |
True. |
| Q. |
Surely, you would agree that the enormous
cost of purchasing and retraining in this economy is |
|
being done because the 8000 model is
superior to the current 5000 model? |
| A. |
I guess so. |
| Q. |
Obviously, then to justify this huge
expenditure, especially in this economy, and
investment of time, |
|
the state recognizes there are serious
problems with the current machine that must, at
great cost, |
|
be corrected? |
| A. |
Ummm... |
| Q. |
Knowing this, the truth is that you
did administer a breath test knowing that the test
may not have |
|
been accurate, right? |
|
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