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Attacking Key Evidence at DWI Trials

by Seth Azria on 5/03/2016

This article was adapted from partner David C. Bruffett's chapter in "Inside the Minds: Strategies for Defending DWI Cases in New York, 2015 ed. published by Aspatore Books. Please call (315) 364-1155 or email us for a free consultation with Mr. Bruffett about your DWI case.

Sources of Prosecution Evidence in DWI Case

The arresting officer’s testimony is a key component of the evidence typically presented at a DWI trial, along with any dash cam evidence and field and/or chemical test results. If all of that evidence is not in place the prosecution is not going to be pushing that DWI case to trial. If such evidence is presented, I am going to attack it. For example, I will try to determine exactly what the officer did on the side of the road, and I will try to find out if their formal training standards are up to date. I may ask the officer, “Are you NHTSA (National Highway Traffic Safety Administration) Program certified?” I will ask detailed questions about the officer's level of training and when it occurred; in other words is the officer current as to his or her knowledge regarding a DWI stop and the subsequent tests? Many officers are simply under trained to perform all of the tests that will ultimately determine if a driver is arrested.  At the same time, it is important to keep in mind that jurors do not like to see defense attorneys attacking police officers, even though they may be personally offended by an officer’s conduct in a particular instance. As a result of talking to jurors in voir dire, I realize that most jurors feel that we pay our police officers to make certain observations with respect to drunk driving and keep our streets safe.

However, jurors also want justice to be served in these cases. For example, I recently tried a DWI case in which my client was found not guilty; and that is because jurors hold officers to a high burden of proof. Essentially, if you have a gun and a badge, and the ability to arrest someone and take away their liberty, you need to be sure that you do everything right with respect to making an arrest. Therefore, when you point out to a jury that officers made mistakes—whether they are intentional or accidental or simply because the officer has not been properly trained—you will generally find that the jury can be swayed to your side. Again, I believe there is no question that most juries are going to give police officers incredible deference, but they are also going to expect them to perform their duties properly and with integrity.

Again, most officers get very little training when it comes to the administration of the field sobriety tests, and very little training with respect to the roadside breath screening test and the breathalyzer chemical test, although they do their best. In many cases, when a skilled DWI attorney will ask an arresting officer about the clues and cues the officer should have been looking for with respect to the DWI field sobriety test, the officer will say, “I am not familiar with that procedure,” or “I cannot recall—I need to look at my notes before I answer that question.” When juries hear such responses, they soon realize that the DWI case that the prosecution is presenting may not be a straightforward case of guilt as the prosecution claims.





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