Randy Goodis, P.A. Attorney at Law

Effective Cross-Examination is Key to Successful DWI Defense - continued

Pattern 2

By relating the "grading" of the client's breath analysis to that of an exam at the lowest level of presumed impairment, the percentage of inaccuracy permitted by the law is emphasized.
By equating it to a final exam score, the inherent unfairness of the machine is illustrated. Of course, additional chemical, physiological and mechanical problems that create greater variations can be utilized, provided they are presented in a clear, simple manner.

Q.	You are aware that this machine is really inaccurate, aren't you?
A.	No I'm not.
Q.	Isn't it true that there is a margin of error of .02?
A.	That's correct.
Q.	Isn't it also true that if someone's test results are .08, that person is presumed guilty?
A.	Exactly.
Q.	And if the alcohol content is below .08, there is no presumption of guilt?
A.	That's the law.
Q.	So, that figure, .08%, is really important under our law isn't it?
A.	Absolutely.
Q.	Now, since you have admitted there is a recognized .02 variance permitted under the law, a breath
	alcohol content of .08% could legally fall anywhere from .06% to .10%, right?
A.	Yes.
Q.	To clarify, the law permits test results to be used at trial if the subject actually has a 0.08% blood
	alcohol level, but the machine reports it anywhere from 0.06 to 0.10?
A.	Yes.
Q.	Well, a range of 0.06 to 0.10 on what should be a .08 reading is actually a 50% variation, isn't it?
A.	What?
Q.	a .06 is 25% lower than the .08 standard of presumed guilt, isn't it?
A.	Yes.
Q.	And the .10 reading is 25% above the .08 reading we assumed the subject really had, right?
A.	Yes.
Q.	In other word, if someone had scored 80 on a final exam, but you are allowed to score him anywhere
	from 60 to 100, that would be absurd and unfair, right?
A.	...
Q.	But, that's exactly what would happen with a test in a DUI case, right?

Pattern 3

We have enjoyed great success with this line of questioning. Since ethanol is a central nervous system depressant, it is a powerful line of questioning.

Q.	In this case you wrote two tickets, didn't you? One for speeding and the second for DUI?
A.	I did.
Q.	And based upon the tickets you wrote, your arrest report and your testimony here, the only problems
	you observed that involved the defendant's driving was speeding and DUI, right?
A.	That's quite enough, don't you think?
Q.	Absolutely. Are you aware of a federal agency, the National Highway Traffic Safety Administration,
	known as NHTSA?
A.	Yes, I am.
Q.	Among their responsibilities is to research and devise way and means of detecting drivers impaired
	by alcohol, correct?
A.	I believe it is.
Q.	Then, surely you know there are certain types of driving patterns that indicate alcohol-impaired
	driving, right?
A.	I believe so.
Q.	And among those driving patterns that indicate alcohol impaired driving are weaving, driving too
	slowly and disobeying traffic control devices, right?
A.	Yes.
Q.	Isn't it true that of the 24 indicators of driving under the influence of an alcoholic beverage, not one
	of them includes or involves speeding?
A.	I guess that's true.
Q.	In other words, alcohol, ethanol, which is a central nervous system depressant, isn't it?
A.	Yes.
Q.	When impaired by a depressant, a person would talk, walk, react and think slower, right?
A.	Right.
Q.	But the only driving problem exhibited by the defendant before you arrested him for DUI was
	speeding, right?
A.	Yes.
Q.	And that's the only improper driving pattern that does not indicate the presence of alcohol, right?
A.	I guess so.
Q.	Actually, it's just the opposite of what you would expect to observe in a drunken driver?
A.	I don't know.
Q.	They should be going slower, not speeding, correct?