Tonight President Obama is likely to talk to nation about the economy and what he intends to do to fix it. I suspect that he’ll say something like that fixing the economy is his number one priority. Like someone else said a long time ago, it’s all about the economy, i.e., “it’s the economy – stupid.”
And so it is with wining a DUI trial. Just substitute the word “preparation” for the word “economy.” You want to know how to win a drunk driving trial? “It’s the preparation –.” Before you start spending lots of time figuring out exactly what you’re trying to prepare you need to understand that your preparation is for one purpose and one purpose only – to identify the theme of your case. Everything else goes follows from there.
Let me say this differently. Let’s say you’re handling a murder case and you learn that the state’s eye witness made a written statement that the perp had only one ear. You know your client has two ears. Do you cross examine the witness on this obvious mistake? It depends on your theory of the case. If your theory is self-defense then who cares if the witness is wrong about the ears?
The same is true of a drunk driving case. Yes, in most DUI cases you will ask the jurors if they are members or contribute to MADD, if they drink, if they keep and/or serve alcohol in their home, do they allow people to leave their house after drinking, have they have consumed alcohol and driven, do they agree that it’s possible to do this and still drive safely, etc., etc., but these questions may not applicable, and certainly may not be the most important.
The first thing you must do, and this requires a great deal of preparation, is to figure out your theme. Everything else, from voir dire, to opening statement, to direct (if any) to cross to closing is all based on this theme. You use your voir dire to set up your opening statement which sets up your cross examination which sets up your close; and all of this is wrapped around a theme. If the voir dire or cross-examination question doesn’t fit into your theme, then no matter how tempting, don’t ask it.
Ok, having said all this, we all use various sources to figure out how to approach different cases and witnesses and so forth, and Patrick T. Barone’s book Defending Drinking Drivers has lots of sample cross-examination in it and there are several detailed sections on voir dire, opening, closing and so forth. Larry Taylor’s book is a must-read, and is simply excellent. There are dozens of DUI defense books on the market these days, but in my very biased opinion James Publishing has several of the leading books on DUI defense, including Kapsack’s book, and the book on defending chemical tests.
With proper preparation and a powerful theme and some good story telling nearly any DUI case can be won at trial. But, if you lose the preparation and you’ll surely lose the case!