Monday, July 13, 2009

California DUI lawyer Donald Bartell's Attacking & Defending Drunk Driving Tests book (sampling)

This sampling of the Single-Page Checklist of Recurring DUI Objections is featured in Attacking and Defending Drunk Driving Tests by Don Bartell

Voir Dire in California DUI cases and nationwide Drunk Driving Cases

* The question does not go to cause or to assist in the exercise of peremptory challenges.
* The juror was improperly struck due to race/sex in violation of the 5th and 14th Amendments to the U.S. Constitution. Also consider state objections.

Opening Statement in DUI cases

* Argumentative.

Police Officer in DUI cases

* Leading.
* Calls for a narrative.
* No Foundation/Beyond the Officer’s expertise.
* Speculation.

State Percipient Witnesses in DUI cases

* Leading.

Phlebotomist in DUI cases

* No Foundation as to qualifications or to procedures used.

State Expert Witness in DUI cases

* Chain of Custody.
* No Foundation.
* Not an expert in this area (sometimes occurs with respect to FST’s).
* Improper Hypothetical (no facts to support hypothetical).
* Non-responsive.
* Hearsay and violates the defendant’s right to confrontation under the Sixth and Fourteenth Amendments to the United States Constitution.

Defense Percipient Witnesses in DUI cases

* Argumentative (cannot ask the witness to comment on another witness’ veracity).

Defense Expert in DUI cases

* Request the Court to allow the witness an opportunity to finish his/her answer.

The Defendant in DUI cases

* Argumentative (cannot ask the defendant to comment on another witness’ veracity).
* Request the Court to allow the witness an opportunity to finish his/her answer.
* Violates the defendant’s rights to remain silent under the 5th and 14th Amendments to the U.S. Constitution. The question constitutes Doyle v. Ohio error. Request the Court to admonish the jury to disregard the prosecutor’s question.

Closing Argument in DUI cases

* Misstates the evidence / misstates the law.
* Vouching, improperly stating personal opinion.
* Violates the defendant’s right to remain silent under the 5th and 14th Amendments to the United States Constitution. Griffin v. California error (commenting on the defendant not testifying); Doyle v.Ohio error (commenting on post Miranda silence). Request Admonishment.
* Improperly appeals to passions and emotions of jurors.

Donald Bartell is a partner in the law firm of Bartell & Hensel in Riverside, California, and has been in private practice since 1984. He is on the Board of Directors of the California DUI Lawyers Association, and is a frequent lecturer around the state on DUI trial tactics. He has been asked to participate in the California DUI Lawyers Association and National College for DUI Defense’s jury research project investigating what arguments resonate with jurors in drunk driving cases.