Monday, September 22, 2014
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.