Monday, February 4, 2013

Incorporating Pattern Jury Language and Battling Police Embellishment in a DWI Trial By J. John Sebastian

Your client is charged with violating section 1192(3) of the NY Vehicle and Traffic Law. known in some places as a:DWI refusal" or a "common Law DWI"; albeit there is no chemical test, and the evidence will boil down to police observations to prove intoxication.
Assume for purposes of this article that our client has a prior (usually the case in refusals) so there is no offer. Lets assume further that our judge seems unsympathetic to our client's cause and the likelihood of an 1192(1) judgement after a bench trial are slim. So, onward we march to a jury trial of the matter.
1. Consult The NYS Criminal Pattern Jury Instruction(PJI) Manual
The first and most important step in trying this case is to consult the NYS PJI 1192 (3) VTL, specifically let's look at the relevant PJI definition of "intoxication",
A person is in an INTOXICATED condition when such person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver.(emphasis added)
2. Incorporate Key Buzzwords Into Your Cross
"Physical and mental abilities... ." are the buzzwords you will be incorporating into your cross of the arresting officer.
Let's assume the usual direct testimony from the arresting officer, wherein he gives all the standard indicia of intoxication: swerving, bloodshot eyes, alcohol on the breath, unsteady on his feet, failed all the FSTs miserably.
Your cross examination follows:
You: Sir you observed Johnny drive past you, Yes?
Cop: Yes
You: You pulled out after him, True?
Cop: Yes
You: You activated your overheads, Correct?
Cop: Yes
You: and Johnny pulled over, Yes?
Cop: Yes
You: So at that point he had the mental ability to recognize you were stopping him,Correct Sir?
Cop; Yes
You: And the physical ability to pull the vehicle over, Yes?
Cop: Yes
You: You approached Johnny's vehicle?
Cop: Yes
You: And requested him to produce license and registration, Correct?
Cop: Yes
You: So he had the mental ability to understand that request, Correct Sir?
Cop: I guess...
You: That's a Yes?
Cop: Yes
You: And he had the physical ability to find produce and hand you those documents, Isn't that true as well??
Cop: well NO, it took him a long time to find them and he kept dropping his license...
What just happened? 'And it was going so well!' you think to yourself. Now what do I do?
Don't despair. What just happened is that our arresting officer just deviated from our script and is heading down the dark and lonely road of embellishing his observations of intoxication.
It is a dark and lonely road because you always follow the cardinal rule of cross; 'never ask a question you don't know the answer to'. In reality, that rule should be 'never ask a question you don't know what the answer to should be'.
3. Negative Impeachment of an Embellishing Police Witness
Continuing our sample cross:
You: So your testimony NOW is that it took 'a long time' for him to find his documents?
Cop: Yes
You: And that he 'kept dropping his license'?
Cop: Yes Sir, he did.
You: I see.
You: Sir, you have training in how to complete the necessary documents pursuant to a DWI arrest correct?
Cop: Yes I do.
You: In fact you were trained at the police academy on how complete the necessary documents Yes?
Cop: Yes
You: Did they train you to be accurate?
Cop: Yes
You Did they train you to be complete?
Cop: Yes,
You: Did they train you to be honest?
Cop: They did.
You: I'm handing you whats been marked State Exhibit A for ID purposes do you recognize it Sir?
Cop: Yes
You: What is it?
Cop: It is the arrest report I prepared for this case.
You: And you completed that over a year and a half ago Yes?
Cop: Yes
You: Contemporaneously with the events of the night in question correct?
You: And at the time you prepared it you were trying to be accurate?
Cop: Yes.
You: You were trying to be complete?
Cop: Yes
You: And You were trying to be honest?
Cop: Of course.
You: So that's a Yes?
Cop: Yes
You: Can you please tell the jury where in that arrest report it says that Johnny took a long time to produce his license and registration?
Cop: It doesn't say it anywhere.
You: I see. And would you please indicate where in the arrest report it states he kept dropping his license.
Cop: It does not say that either.
You can repeat this process again with his field notes, the misdemeanor information itself or his grand jury testimony (if the case is a felony) to really pound your point home.
4. Completing The Buzzword Cross
When you go back to your physical and mental capability line of questioning, the officer is not likely to embellish again, but if he does, be grateful, and just repeat your negative impeachment steps
In addition, point out through your cross exam the physical ability to operate at a safe speed, safely park the car, exit the car, stand in the roadway, walk without assistance, and walk while handcuffed behind his back. Of course you will incorporate each physical task into your cross as the facts of the case allow.
Point out through you cross exam the mental ability to follow instructions, comply with orders, give pedigree info, dial a phone, and carry on a conversation. Again look at the facts and take what they give you.
5. Summation
In your summation you will remind the jury that the law is not 'gasoline and alcohol don't mix'.(Initially talked about in voir dire and opening)
The law is whether Johnny had the physical and mental capabilities to safely operate the motor vehicle on the night in question. And then reiterate all of the evidence to support that he did.
If you follow these techniques of incorporating the key buzzwords of the PJI into your case through cross of the arresting officer, and using negative impeachment to battle embellishment, you should be returning NOT GUILTY verdicts on a regular basis with these types of cases.
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