Tuesday, October 7, 2014

Free in Kentucky: Opening Statement for a Rx drug DUI

Free in Kentucky: Opening Statement for a Rx drug DUI: You can click on this link to watch the video: https://www.youtube.com/watch?v=EIkM9yVDnRQ The above link is for an Opening Statement on...

Opening Statement for a Rx drug DUI

You can click on this link to watch the video:


The above link is for an Opening Statement on a prescription drug DUI case.  This is a case where my client was accused of mixing narcotic prescription drugs and driving.  These cases are tricky because they usually get complicated and involve more evidence than a normal alcohol DUI.  For example, you may need to deal with toxicology results, testimony from KSP lab technicians, toxicologists, treating physicians, and medical records from diagnostic tests.  All of these were involved in this particular DUI case.

This is why I love doing DUI cases - every one is different. There's always a new, fun twist.  

Here's my advice (take it or leave it) for Rx drug openings:

1) Right off the bat, you need to highlight the fact that there is no alcohol in the client's system and no illegal drugs.  Repeat this a time or two during the trial and in a closing statement.  

2) If your drugs are in Therapeutic Range, say it slowly, repeat it, and explain what that means in language that sounds favorable to your client.  When jurors hear that this means your client took their medication in a way that was prescribed to them, and tends to show they aren't abusing medication, jurors remember that kind of thing.  And most jurors (especially those on medications) are hesitant to find someone guilty for DUI even if they took their medicine as prescribed - even if they believe the person might have been impaired. 

3) Own the bad facts.  In this case, my client was all over the road and the driving was extremely dangerous.  He came to rest across 2 lanes of traffic.  Obviously that's not good for me.  But I made it good for us by pointing out how odd this is for a DUI.  Normal intoxicated driving isn't that bad - which opens the door for consideration of another medical event.  Also, their expert says he was intoxicated.  You need to frame the issue on something like that.  Tell the jury what to look for - "Ask yourself whether Dr. Davis looked at any of my client's medical history or pharmalogical history."  I know the answer to that question and I know it's good for my client.

4) Own the good facts.  Fortunately for me, my client was actually not guilty.  He had an abnormal EEG after the arrest that showed a brain injury from either stroke, anticholinergic crisis, seizure, or some other medical event.  And he's on the same medications every day without an incident.  All of this really sets the tone for a Not Guilty verdict. 

The jury ended up making the right call in this case and returned a verdict of Not Guilty.  They took about 7 minutes to deliberate.

Anyway, I hope this is at least entertaining - and if you're an attorney, I hope this helps prepare you for a Rx drug DUI opening.

For any questions on Rx DUI cases, feel free to call me at 502.618.4949.

Monday, September 22, 2014

Free in Kentucky: Watch an Opening Statement for a .105 DUI Case

Free in Kentucky: Watch an Opening Statement for a .105 DUI Case: http://www.youtube.com/watch?v=xTlxk7Ulu74 The above link is to an Opening Statement I made in a DUI case in Hardin County (permission f...

Watch an Opening Statement for a .105 DUI Case


The above link is to an Opening Statement I made in a DUI case in Hardin County (permission from the client was given to post online).  This was a "relation back" DUI.  So if you're a lawyer getting ready to try a relation back case, it might help.  Or, if you find courtroom stuff entertaining, it might be something you find enjoyable to hear.  

If you're going to try one of these cases at a jury trial, here's my advice on an opening statement:

1) Be Confident.  If you aren't confident in a situation where your client blew over the .08 mark, the jury will sense that, and they are going to assume your lack of confidence means she's guilty.

2) Don't Exaggerate.  If the officer didn't intentionally falsify evidence, don't call the officer a "liar."  He isn't.  He just made some mistakes.  In this particular case, the officer wasn't a bad guy, he was just incompetent.  The prosecutor in this case, who did a pretty fantastic job overall, made the mistake of exaggerating by saying that "all" of the field sobriety tests would show a sign of impairment and that the evidence would show that the intoxilyzer was "accurate."  Be careful about exaggeration - if you exaggerate, you lose credibility.  Also, as a side note, I broke this rule when I referred to my client's performance on the One Leg Stand as "gymnast" like.  I shouldn't have said that - it just popped out.

3) Own the Bad Facts.  My client drank and drove.  I needed to admit that, but remind them that it is not illegal to drink and drive (if you've done a good job in voir dire explaining the difference between "drinking and driving" and "driving under the influence" the jury will understand this.  You need to own the BAC.  My client had a .105 - and I needed to be up front about that but explain that a BAC of .105 as measured 45 minutes later does not equal a .08 while driving.

4) Own the Good Facts.  We had a few good ones in this case - my client was in charge of physical faculties.  She had a very good performance on One Leg Stand test.  Also, the officer in this case gave me a lot of ammunition - he has no idea how to administer field sobriety tests correctly.

5) Better be less than 15 minutes.  Seriously, don't put people to sleep.

6) Frame the Issue.  Seriously, give them a question to think of during trial.  Some jurors will even write it down.  "Ask yourself as we go through this, has the prosecution proven to me what her BAC was while she was driving."  That issue means I win, because I know the prosecution can't prove this.

On this particular case, this formula seemed to work.  The jury found my client Not Guilty.

I hope you enjoy it, and/or it can be good research for other DUI lawyers.

Friday, August 22, 2014

A Letter to Officer Sunil Dutta: My Thoughts on Ferguson

The following is an open response to Sunil Dutta.

According to the Washington Post, Sunil Dutta is a professor of homeland security at Colorado Tech University and a police officer with 17 years on the force at Los Angeles Police Department.  A few days ago the Washington Post printed an Op-Ed piece written by Dutta entitled “I’m a cop. If you don’t want to get hurt, don’t challenge me.”

This blog post is an open response to Mr. Dutta with regard to his article.

Right off the bat, Dutta lays down some pretty reckless blanket statements.  After giving a brief introduction to let the reader know he is referencing the situation Ferguson, Mo., Dutta states “cops are not murderers. No officer goes out in the field wishing to shoot anyone, armed or unarmed.” 

I think the vast majority of people would agree that generally speaking, police officers are not murderers – and that MOST police officers don’t ever want to shoot anyone.  But to say that “No” police officer goes out wishing to shoot someone is a baseless, biased statement.  I’ve heard officers with my own ears say things like “the pay sucks but at least I get to carry a gun.”  It’s unfortunate.  Some police officers believe that the feeling of power they get by wielding a badge and a weapon is a job perk.  A feeling that can offset negative factors associated with the job.

To say that no person in your field feels a certain way is ludicrous.  That would be like me saying “lawyers are not thieves.  No lawyer goes into a court room wishing to take money that doesn’t rightfully belong to them.”  Or as a Catholic, me saying “priests are not bad people.  No priest goes into a parish wishing to hurt a child.”

C’mon, Dutta – you’re better than that.  There are bad apples in every field.  Failure to acknowledge that problem makes you a part of that problem.  But the bad apples in the Catholic church generally aren’t packing guns.  Most lawyers I know don’t keep deadly weapons on or about their person.  Cops do.  So the bad apples in your field are a lot more dangerous.  You should take a stronger position to cut them out.

Dutta acknowledges at some point that police officers can make mistakes, but he puts the responsibility on citizens to ensure safety.  Dutta’s self described “bottom line” is this: “if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you.”  His point is that the police may, in fact, be violating your rights.  But you shouldn’t stick up for yourself in any way.  Because if you do and the police officer shoots you, that is the path which you have chosen.

As a society we cannot accept Dutta’s proposal.  The only answer we as a society should live with is that police officers, who are supposed to enforce the law, should KNOW the law.  They should be knowledgeable and they should be vigilant to guard the Constitutional rights of the general public.  Those officers in Ferguson, Mo. who threw gas bombs at news vans and arrested reporters for filming – they either genuinely thought they had the authority to do what they did, or they knew better but didn’t care.

Those police officers were at best, ignorant of the law they are charged with the duty of enforcing.  And ignorance and guns (tear gas, tanks, etc.) don’t mix very well.  Dutta’s answer is that the reporters should have been quiet, stopped filming, and refrained from any objection to their rights being violated.

I refuse to accept that, Mr. Dutta.  I don’t trust a government that says you shouldn’t question it. 

Sometimes the problem is a belligerent citizen.  Sometimes the problem is a hothead cop.  But we cannot accept the proposition that people should not question authority.  The right to speak out, nonviolently, is essential liberty.  Those who would give up essential Liberty, to purchase a little temporary safety, deserve neither Liberty nor safety*

Although mortally flawed, Dutta’s article is not completely without merit.

As we skip ahead in Mr. Dutta’s piece, he comes to a couple of ideas that make a whole lot of sense. “[I] believe every cop should use a body camera to record interactions with the community at all times. Every police car should have a video recorder.”  Dutta submits that employing video recording devices on the police officer’s person and in cruisers will reduce the rate of police misconduct and the rate of false complaints.  I couldn’t agree more.

Unfortunately, the KSP disagrees.  And the vast majority of city police stations in Kentucky.  And most County Sheriff departments.

Do you want to save millions in tax dollars?  Do you want to reduce the number of criminals who “get off on technicalities” and make sure that dangerous people are convicted for their crimes?  If so, you should support the mandatory use of lapel and cruiser video cameras.  This situation is win-win.  On the other side of the coin, this will drastically reduce the instances of police misconduct.

The only people who don’t want cameras are dirty cops and criminals (not that I have anything against criminals, per se).

I also agree with Dutta’s proposition that someone being arrested (or having their rights violated) should refrain from showing “anger and resentment.”  If your rights are being violated you should voice your objection in a peaceful, respectful way.  Violence and aggression against a police officer will not end well for the citizen. 

Dutta’s misstep is that he goes too far.  Dutta crosses the line when he faults a citizen for challenging a police officer in a respectful, peaceful way.  “do what the officer tells you.”  “Don’t tell me that I can’t stop you.”

Unfortunately for Mr. Dutta, freedom of speech and nonviolent protest are central to our rights as American citizens.  So don’t tell us not to challenge you, Mr. Dutta. 

That makes you part of the problem.

*Benjamin Franklin

Tuesday, August 12, 2014

Free in Kentucky: Police Officers and Lapel Cameras

Free in Kentucky: Police Officers and Lapel Cameras: Last year the Washington Post reported that police officers in Rialto, Calif., now carry cameras to record their every action while on duty...

Police Officers and Lapel Cameras

Last year the Washington Post reported that police officers in Rialto, Calif., now carry cameras to record their every action while on duty. The city of Rialto says the program has reduced complaints against police officers by 88 percent during the first year.  88 PERCENT!  That's huge.

That kind of reduction is phenomenal news for both citizens and police officers.  Citizens have less instances of false arrests and police brutality and police officers have less concerns about fighting bunk complaints from scumbags with a grudge.

Today the New York Daily News reported that, a memo has been released, subsequent to the videotaped chokehold death of Eric Garner.  This summer a guy named Ramsey Orta caught police on camera using a chokehold (prohibited by the NYPD policy) on Garner.  The chokehold killed Garner.  The memo, which was released by the Chief to all departments, states, “Members of the public are legally allowed to record police interactions,” the memo states. “Intentional interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.”

In light of the Garner killing (murder?) and in light of the phenomenal success of the Rialto lapel camera program, isn’t it time we all got on board for lapel cameras?  

Surely the cost of implementing the technology would be more than offset by the savings in administrative costs, court costs, lawyer fees, etc...

Anything that helps ensure the constitutional rights of the general public is certainly worth some discussion.