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Creative Tips That Work!

By Robert S. Reiff

  • January/February 1998

Robert S. “Bobby” Reiff is a criminal defense lawyer in Miami, FL. He is nationally recognized for his work in DUI cases. His book, Drunk Driving and Related Vehicular Offenses was recently published by LEXIS Law Publishing.

I have put together a list of the best pieces of advice offered to me, or that I have come up with, over the course of the many years I have toiled in the "Drunk Driving” field. While these “tips” are far from exhaustive, I believe they emphasize several important factors to remember: That hard work, creativity and thorough preparation and information gathering go a long way toward resolving your client’s case successfully.

If You Think You’re Going To Lose, You Probably Will

Strangely enough, having a positive attitude about your case and what you are doing on behalf of your client will have a great effect upon your defense and the outcome of the litigation. Do not get into a fight expecting to lose! In other words, if you hope to achieve success, think positively. In all of my cases, one thing I have learned is that if you work hard enough, and smart enough, you have, at the very minimum, a good chance at success.

Abnormal Tests To Test Normal Faculties

Physical sobriety tests: have you ever really thought about them? These tests, which DUI suspects are routinely asked to perform, are abnormal! After all, how many people walk down the street in a heel-to-toe manner, or wait for the bus by standing on one leg? You’re not asked to do these things before the state gives you a driver’s license, are you? Nevertheless, the police use these tests to attempt to determine whether a suspect possesses his/her normal faculties. What you have, then, are “abnormal tests to test normal faculties.” It seems awfully strange that this is the way the police go about assessing whether to make a DUI arrest based upon impairment (remember that the breath test is offered post-arrest). This point is worth raising during cross-examination:

Q: Officer, you didn’t just say to Mr. Jones, walk up the street about ten yards and back so I can see how you walk, normally, did you?
A: No.

Q: Instead, you asked him to walk in an abnormal manner, didn’t you?
A: Duh.

Q: And you were asking him to do these exercises to determine if he had his normal faculties?
A: That’s right.

Just as you and I believe that, on a common sense level, this is rather bizarre, so too will your jury.
Zen and the Art of Physical Sobriety Exercises

It is curious that to make their arrest determination, police officers believe that a drunk driving suspect can perform physical sobriety exercises under the extremely stressful, and certainly non-clinical settings in which they are usually performed. It is also interesting that these suspects are being asked to perform these exercises often for the very first time. I use a baseball analogy to show that the first time up at bat, chances are anyone is going to strike out.

Q: Officer, have you ever played baseball?
A: Yes, of course.

Q: The very first time you swung that bat, did you hit a home run?
A: Probably not.

Q: Chances are, you missed the ball entirely because it was your first attempt at that physical task.
A: That’s probably correct.

Q: The exercises you offered are physical tasks, are they not?
A: That’s true.

Q: To your knowledge, this was the first time Mrs. Jones was asked to do such unusual physical tasks.
A: To my knowledge, yes.

Q: Therefore, you can’t exclude the possibility that she would have done much better if she had the opportunity to practice; in order for her to familiarize herself with these tasks?
A: No, I cannot.

Plausible Denial

Jurors generally do not pass favorably upon a defendant who refuses to submit to a breath test. To them, a refusal means that the defendant knew he/she was guilty, and, therefore, hid the truth. It is important, then, to give the jury a reasonable explanation why your client refused to submit to the test. The “plausible denial” should be developed right from the beginning of trial, during jury selection. A good example of this was a situation in which my client refused to submit to the breath test because he had watched The Tonight Show and heard Johnny Carson say that the breath machines “just don’t work!” By the time I inquired of each juror if any of them had heard Johnny’s statement (indeed, several of them had), they were all in agreement that if any one of them had been arrested after hearing such assertions, they would not have submitted to the test either!

Ex Party

We all know, of course, that it is improper and unethical to communicate ex parte with a judge concerning a particular case. Nevertheless, it is perfectly acceptable to provide the court with a courtesy copy of any memoranda or case law you intend to rely upon. In fact, most judges appreciate it. Therefore, if you prepare a substantial pleading, and you should if the issue is important, make sure you get a courtesy copy of the motion along with relevant case law into the hands of the judge who will hear the motion.

Know Your Enemy

We all display natural tendencies in law. Perhaps this comes out most clearly under the pressures of a trial. It is important, then, for you to research the witnesses who will be testifying against your client, the prosecutor who will be arguing the case against you, and the judge who will be handling the matter from the bench. I am confident that as you delve further into these cogs of the system, certain patterns will emerge. For example, many prosecutors use the same or similar opening and closing arguments; police officers have been known to testify in an all-too consistent manner about the performance of sobriety exercises; and judges often have distinct preferences or quirks too. In other words, as best you can, know your enemy.

Cops in Closing

I enjoy it when a police officer who has testified in a contentious case decides to attend closing argument. This is especially true where the case has lingered for a long time and the officer’s testimony has taken place hours, if not days, earlier. A simple point should be made: “Why is the officer here? His or her duty is to make the arrest, process the defendant and testify truthfully about what occurred. Period.” An officer’s attendance, it should be argued, exposes a personal stake or grudge. You should make great use of an officer’s attendance at the closing, especially when you have raised questions as to the officer’s integrity or impartiality.

Fair and Impartial Jurors

It is very interesting that the prosecutor will tell a panel of potential jurors that he or she is looking only for a “fair and impartial jury.” As we all know, that is far from the truth. Use this statement against the prosecutor in two ways: First, be candid and tell the jury that the prosecution has no intention of selecting a fair and impartial jury; it wants a jury that is likely to convict, just as you would love to get a jury that would merely look at your client and find her not guilty.

Second, and more important, point out to the jury that what the prosecutor has just told them is illegal — for as the jurors sit and adjudge the case, they must be partial . . . toward the defendant. This is so because the defendant enjoys the presumption of innocence, which remains with her until the prosecution meets its burden of proving each material element of the charge beyond and to the exclusion of every reasonable doubt.

Retro Extrapo

While the prosecution does not have to use retrograde extrapolation (the relating back of a breath test result from a future time back to the time the defendant was actually driving or in actual physical control of the vehicle) to obtain a conviction in most jurisdictions,1 it is important nonetheless to put the issue before the jury. The groundwork is easily laid if the breath technician has been qualified by the prosecutor as an expert witness. Once this has been done, you are then permitted to ask him or her hypothetical questions based upon facts in evidence. A proper setup of your hypothetical scenario will force the witness to testify that he or she does not know what your client’s blood alcohol content was at the time of the operation of the vehicle. Moreover, the witness in all likelihood will not be able to testify whether the defendant was above or below the legal limit at that time. The artful examiner might even elicit testimony that the client was just as likely under the legal limit at that time of the offense as over it, no matter the breath or blood test result obtained by the prosecution.

Mental Case

A police officer’s opinion that your client did not properly perform one or a series of physical sobriety exercises is critical to the prosecution’s sustaining its burden of proof, especially in a case where there is no breath test. However, most officers (and many attorneys) seem to forget that physical sobriety exercises are intended to test not only the DUI suspect’s physical faculties, but his/her mental acuity as well. Use this dichotomy to your advantage.

Particularly where there is not a particular note in any police report as to your client’s inability to follow the instructions for the exercises, have the officer repeat the litany of directions he or she ordered your client to perform. Make note of each direction given, systematically going over each instruction, and elicit how your client performed each instructive (mental) task as instructed. Thereafter, have the officer agree that although the defendant may have been unable to perform certain physical parts of the exercises, he/she could follow every mental instruction in an attempt to do so nonetheless. Most officers will concede that physical sobriety exercises are “divided attention” tasks, and that the mental aspects are weighed as heavily as the physical. Often, you can then get the officer to admit that, where the facts support it, the defendant had his/her “mental faculties,” (although their physical abilities may have been lacking)!

Repeating the Performance

One of the strongest tactics to employ in cross-examination is to elicit favorable testimony from an officer or other witness and then frame additional questions thereupon. Building upon a witness’ positive (for your case) answer allows you to burn the concept into the jury’s memory. The realization of this goal may be as simple as having the officer admit, as discussed immediately above, that the defendant possessed her “mental faculties.” Follow-up questions should be framed thusly: “Officer, isn’t it true that having your mental faculties is important in the operation of a motor vehicle?”

Pay As You Go

It is important to research and recognize that police officers often receive a large amount of overtime, or, as it is sometimes called, “comp [compensation] time” for their drunk driving cases. In many departments, each time an officer appears in court, he or she receives several hours of overtime (usually at time-and-a-half), even if the court appearance lasts but for a moment. In some areas, the officer receives money though he or she was merely placed on “standby.” This financial incentive should be rigorously explored and presented to the jury to reveal the officer’s bias to create cases, if appropriate. For instance, by doing this research, I discovered that the City of Miami Beach Police Department overtime and court attendance form (at that time) depicted a money bag and a person in a hammock on them. By enlarging this form for use in cross-examination, I had the jury howling with laughter, and they responded by acquitting my client.

Assume Nothing

The quickest way to your client’s defeat is to assume that certain statements or allegations made by the police are accurate or true. If we were to believe everything that the police say, there would be no need for defense attorneys. Therefore, be creative in the manner in which you check into the allegations made by the police. For instance, officers sometimes testify that they always do certain things in a DUI case in certain ways. In one case, by pulling old videotapes, I could prove that such a statement was in fact not true, and the state was forced to drop the case. In another instance, to determine whether an officer had followed the “20-minute” observation requirement prior to administering a breath test,2 I secured the department’s “running log” for the date of my client’s arrest and and determined that the officer had in fact processed three separate defendants for breath tests — back to back to back — all within 15 minutes of each other.

Make That Record!

When trying a case or arguing a motion, always be mindful that you may very well lose. Do not lose twice, then, by failing to perfect an appellate record. If a judge denies the admission of certain evidence, or precludes an avenue of cross-examination, take a moment to make a record of what the evidence or cross-examination would have been and/or shown. If you believe the prosecutor is improperly being allowed to admit certain documents or other evidence, make the objection! Additionally, be aware of any special jury instructions given at the request of the prosecutor. Many such instructions are improper and will warrant reversal on appeal. If no objection is made, however, absent fundamental error, your objection upon appeal will almost certainly be deemed to have been waived.

‘Heads I Win, Tails You Lose’

The most effective manner in which to cross-examine a witness is to place him in a position where no matter how he answers a particular question, you gain by it. For example, you may ask an officer to admit that he has made mistakes before. If the officer answers “no,” he appears inflexible; if the answer is “yes,” it gives credence to the possibility that a mistake was made in your case. Conversely, avoid asking a question that will likely harm your client no matter how the witness answers it. Good cross-examination in a DUI case often requires you to remove some pieces from the prosecution’s jigsaw puzzle so that the final picture is much different from the one that the prosecution presented in its opening argument

‘If They Don’t Trust It, Why Should We?’

It seems odd that while the prosecution seeks the jury’s blind faith as to the accuracy of the breath test machine (never, never, ever call it an instrument), the manufacturer itself often has less than full confidence in it, as evidenced by it’s one year limited parts and labor warranty against defect. Not only is the Intoxilyzer 5000 warranted for only one year, it is not warranted for fitness or purpose. A potentially devastating area of cross-examination thus involves your presenting the warranty and, with copy in hand, argue that the jury should not place full faith and confidence in a machine that is trusted less than many household appliances.

The 2100-to-1 Ratio and the ‘Average’ Person

None of us like to be thought of as “average.” However, the breath machine predicates its blood-to-breath calculations on an average person’s ratio of 2100 parts breath to one (1) part blood. The “2100-to-1” ratio has undergone much criticism: There are those who believe, for example, that the true “average” ratio is more in the neighborhood of 2400-to-1, thereby causing breath test results to be under reported; the converse is often argued as well. Therefore, ask the prosecution’s breath test witness to point out who in the courtroom (as opposed to who in the jury box, thereby hopefully avoiding a “golden rule” objection) has an “average” breath-to-blood partition ratio? Who would the machine be cheating — the prosecution or the defendant? Knowing that this question cannot be answered beyond a reasonable doubt can only benefit your client.

Teach Your Children Well’

You must use the jury selection process not only to find the ideal juror, but also to educate the jury itself. Therefore, teach the venire about DUI in general, and how the law relates to your specific case. Most jurors do not realize that it is not illegal to drink and drive. Few realize that an individual may lawfully consume alcohol and then later get behind the wheel of a motor vehicle, so long as he or she is not impaired. Many jurors mistakenly believe in an E=MC2 theory — that one who consumes alcohol and then drives is guilty. This myth must be exploded! Additionally, if your case involves an unlawful blood or breath alcohol test result, the jury should be made aware in advance of the fact that such a result is not conclusive evidence of impairment and that it may be overcome by other evidence.

Your Client’s Wealth . . . of Information

Client interview sheets can be a great starting point for obtaining information useful in the defense of your client. I am hesitant to interview a potential client until he/she first fills out a detailed questionnaire, making sure to inquire about the circumstances of the arrest, health issues, especially those that pertain to performance of the sobriety exercises or that may effect the breath readings — such as whether the client had exposure to occupational solvents prior to taking the wheel has dentures, or diabetes, etc. — or whether there are any possible defense witnesses, and the like. No theory or defense is too remote at this early stage of your representation.

Tracking the Holy Grail

An extremely useful means of defending against cases involving breath-test results is to maintain an updated checklist of the “health history” of the particular machine used. In many cases, you will find that the intoxilyzer used is a “sick” one that has been “condemned” — the state inspector’s usual term, bless them — many times over. You should use this history to demonstrate that the often-condemned machine is unworthy of belief, that its reading is inaccurate and unreliable and that your client should be acquitted. n


1. See, e.g. State v. Haas, 597 So.2d 770, 774 (Fla. 1992), where the Florida Supreme Court held that a belated test result is prima facie evidence that the defendant had “the same blood-alcohol level at the time of the operation of his vehicle.” Thus, the prosecution may survive a motion for judgment of acquittal even though it cannot demonstrate in its case-in-chief that the defendant’s blood-alcohol level is above the legal limit at the time of the driving/accident/actual physical control. The Court further held that a “properly obtained test result, [s]tanding alone, constituted circumstantial evidence upon which the finder of fact may, [b]ut is not required to, [c]onvict the accused driver of DUI, either by [D]UBAL or by [i]mpairment.” Id.

2. See e.g., Rule 11D-8.007(2), Florida Administrative Code.

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