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(Rev. 29, 4/13)

Table of Contents

CHAPTER 1 THE OFFENSE

CHAPTER 2 CHEMICAL EVIDENCE

CHAPTER 3 PRE-TRIAL PREPARATION

CHAPTER 4 PRE-TRIAL DISCOVERY

CHAPTER 5 PRE-TRIAL MOTIONS

CHAPTER 6 TRIAL PRACTICE

CHAPTER 7 POST-TRIAL

CHAPTER 8 ADMINISTRATIVE HEARINGS

BIBLIOGRAPHY

TABLE OF CASES

INDEX

Expanded Table of Contents

CHAPTER 1 THE OFFENSE§100 Introduction

§101 Law§102 Science§103 DWI Defense After the Millennium: A Look at Three Decades’ Changes

§110 Elements of the Offense§120 Common Law Problems

§121 Corpus Delicti of the Traditional Offense§121.1 Driving

§121.1.1 Drive or Be in Actual Physical Control§121.1.2 Defenses Related to Driving a Motor Vehicle§121.1.3 Drive or Operate§121.1.4 Defenses Related to Operation - Actual Physical Control of the Vehicle§121.1.5 Defendant’s Own Admissions§121.1.6 How the Prosecution Can Prove Driving - and How It Often Fails to Do So

§121.2 A Motor Vehicle§121.3 On a Public Road

§121.3.1 Jurisdiction and the Posse Comitatus Act§121.3.2 Hobbs Act Jurisdiction§121.3.3 Definition of “Highway” in Drunk Driving Statute Does Not Apply to

Felonious Driving§121.4 Under the Influence

§121.4.1 Requirement of Impairment§130 Statutory Problems

§131 In General§132 Per Se Statutes

§132.1 Irrebuttable Presumption of Guilt Challenged§132.2 Statute Void for Vagueness

§132.2.1 Court Rulings§132.2.2 Scientific Arguments Support Vagueness Challenge§132.2.3 Practical and Scientific Arguments More Likely to Succeed in Per Se

Challenge§132.2.4 Evidence of Intoxication Warranted Reversal When Offered to Sustain Per

Se Charge§132.2.5 Attack Jury Instructions on Conclusive DWI Presumptions§132.2.6 Pennsylvania Strikes Down Variation on “Per Se” DUI Law§132.2.7 Delaware Courts Strike Down BAC Statute§132.2.8 Statute Based Chemical Test Within Four Hours of Driving Not

Unconstitutional§140 Defenses

§141 Based on Elements of the Offense§141.1 Driving Under the Influence

§142 Per Se Statutes§143 Intent-Based Defenses to Drunk Driving

§143.1 Involuntary Intoxication§143.2 Automatism

Defending Drinking Drivers F-6

F-7 Table of Contents

(Rev. 29, 4/13)

§144 Necessity§145 Constitutionality of the Statute§146 Habitual Offenders§147 Using a PTSD Diagnosis to Defend a Drunk Driving Case§148 Justification Defense

§150 Special Problems§151 Felony Drunk Driving

§151.1 Leaving Scene of Accident Charge Required That Defendant’s Vehicle Caused Injuryor Death

§151.2 Felony DUI Dismissed Where Previous Enhancement Convictions Were ObtainedUnconstitutionally

§151.3 Avoid Attacking the Victim in Drunk Driving Felony Trials§152 Vehicular Homicide

§152.1 Aggravated Homicide§152.2 Defense May Subpoena DOT Accident Investigation Studies in Vehicular

Homicide Trial§152.3 Evidence That Defendant Was Driving on Suspended License Irrelevant to Charges of

Reckless Driving, Manslaughter and Vehicular Homicide§153 Manslaughter

§153.1 California Rejects Proof of Recklessness as a Requirement for Manslaughter Conviction§153.2 Finding of Involuntary Manslaughter Unlikely in a Drunk Driving Case§153.3 Drunk Driving Manslaughter as a Strict Liability Offense§153.4 Hitting Dead Body Not Tantamount to Hit and Run§153.5 Court Erred in Instructing Jury That “Contributing Cause” Is Causation in Charge of

Operating Vehicle While Intoxicated Causing Death§154 Second Degree Murder

§154.1 Degree of Intoxication and Punishment§154.2 Rebuttable Presumption of Intoxication Not Applied to Homicide Charge§154.3 Dealing With Dual Charges: Defending Against Drunk Driving and Reckless Driving§154.4 Court Erred in Giving Instruction in DUI Manslaughter Case§154.5 “Extreme Indifference to Value of Human Life” Element of Second Degree Murder

Can Be Shown by Prior Convictions and Refusal to Abide by Terms of Probation§154.6 Unconsciousness Caused by Voluntary Intoxication as an Intent-Mitigating Factor

§155 Combating Prosecutorial Misconduct Before Trial§155.1 Defendant’s Reliance on Prosecutor’s Promises§155.2 Remedies for Breaches of Plea Agreements

§156 “Forced” Tests§156.1 “Forcible” Blood or Urine Tests and Fourth Amendment Violation§156.2 Police Misconduct: Use of Do-Rite Sticks to Obtain Blood Draw§156.3 Forced Catheterization Not Unreasonable

§157 Drunk Driving as Felony Child Neglect§157.1 Possible Constitutional Challenges§157.2 The Defense Strategy§157.3 Conviction Reversed on Child Abuse by Driving While in Impaired Condition With

Children in Car§158 A Blanket Strip Search Policy of All Arrestees Violates the Fourth Amendment

§160 Driving Under the Influence of Drugs§161 History of the Offense§162 The Drug Evaluation and Classification Program

§162.1 The DRE Training Course: An Overview§162.2 Trial Court Rules DRE Testimony Not Admissible

§162.2.1 Evidence of Drug Use Inadmissible Unless Relevant to Intoxication§162.3 Definition of a Drug and the Seven Drug Categories§162.4 The Drug Influence Evaluation Form

Form 1-1 Drug Influence Evaluation Form


§163 Admissibility of DRE Evidence§163.1 Drug Recognition Protocol in Visual Exam for Nystagmus Passes Frye Test§163.2 The DRE Protocol and Frye§163.3 Drug Recognition Protocol Satisfies Frye Test for Admissibility

§163.3.1 Drug Recognition Testimony Is Sufficiently Reliable for Scientific Evidence to be Admissible to Show Defendant Was Under the Influence ofControlled Substance

§163.3.2 Evidence Insufficient to Convict on DUI-Narcotics Where ArrestingOfficer Lacked DRE Training

§164 The Halcion Defense§164.1 Zolpidem and Driving Impairment§164.2 Driver May Assert Involuntary Intoxication Defense§164.3 Defending the Driving Under the Influence of “Ecstasy” Case

§165 Aspirin, Ibuprofen and Alcohol§166 Expert May Testify on Synergy of Cocaine and Alcohol§167 Driving Under the Influence of Nonprescription Drugs§168 Effects of Alcohol With Other Drugs

§168.1 Failure to Prove Connection Between Drug Use and Impaired Judgment/Motor SkillsResults in Reversal of Conviction

§169 Driving With the Presence of Zero Tolerance Drugs§169.1 General Points§169.2 Challenging the Constitutionality of Zero Tolerance Crimes§169.3 Automatic Suspension of Driver’s License Upon Conviction of Drug Crime Upheld§169.4 Zero Tolerance Not Violated Where Drug Administered by Hospital Nurse

§170 The New Federal Rules of Evidence and the Defense of Drunk Driving Cases§180 Special Problems: Representing Truckers in Drug and Alcohol Cases

See the CD for Related FormForm 1-1 Drug Influence Evaluation Form

CHAPTER 2 CHEMICAL EVIDENCE§200 Alcohol in General

§201 Absorption and Elimination§201.1 Absorption§201.2 Elimination

§202 Retrograde Extrapolation§202.1 General Points§202.2 Problems With the Application of Widmark’s Formulas

Form 2-1 Table – Know Your Limits§202.3 Refinements to Widmark’s Formulas

§203 Erroneous Use of Retrograde Extrapolation by Prosecutors§203.1 Court Rejects Extrapolation Evidence Favorable to Defendant §203.2 Implied Consent License Revocations May Not Require Extrapolation of BAC Results§203.3 Attacking Prosecution’s Extrapolation Evidence

§203.3.1 State May Not Use Retrograde Extrapolation to Counter StatutoryProhibition

§203.4 Prosecutor’s Reference to Retrograde Extrapolation Does Not Require Mistrial§203.5 Relation-Back Evidence Not Required to Sustain a Conviction for Per Se DUI Even

With a Four-Hour Delay §203.5.1 Breathalyzer Test Results Taken Within a Reasonable Time Are Admissible

Without Evidence of Retrograde Extrapolation


(Rev. 29, 4/13)

§203.6 Statutory Provision Allowing State to Rely on BAC Testing Results WithoutExtrapolation Upheld

§203.7 Factors Precedent to Proper Admission of Retrograde Extrapolation Evidence§203.8 Court Erred in Admitting Retrograde Extrapolation Evidence§203.9 No Need for Extrapolation of BAC Results§203.10 Error to Convict Defendant Without Retrograde Extrapolation§203.11 Failure to Object to Retrograde Extrapolation Not Reversible Error§203.12 Statutory Presumption that BAC at Time of Chemical Test Same as at Operation Valid§203.13 Retrograde Extrapolation and the High BAC Enhancement§203.14 Preparing the Retrograde Extrapolation Case for Appeal

§204 Rising Blood Alcohol Defense§204.1 Additional Information on the Rising Blood Alcohol Defense

§205 The BAC Tracker Blood Alcohol Software Program§206 Methods to Hand-Calculate BAC§207 Sex-Related Differences in BAC§208 Test Specimens§209 Tolerance and the Disconnect Defense

§210 The Science of Measurement Uncertainty§210.1 General Points§210.2 Uncertainty in Bodily Alcohol Chemical Tests§210.3 Uncertainty in Breath Tests§210.4 Uncertainty in Blood Tests§210.5 Applicability of Measurement Uncertainty to the Admissibly of Chemical Tests

§220 Breath Analysis§221 Minimum Standards for Breath Testing§222 The Measurement of Breath Alcohol

§222.1 By Infrared Absorption§222.2 By Electrochemical Fuel Cell

§223 Henry’s Law and The Fixed Partition Ratio§223.1 Problems With the Fixed Partition Ratio§223.2 Experts Debate Problems With Blood/Breath Ratio§223.3 Constitutionality of the Fixed Partition Ratio§223.4 Expert Testimony on the 2100:1 Ratio§223.5 The Variability of Partition Ratio Is Irrelevant in “Per Se” Drunk Driving, but Relevant

in Prosecution for Driving While Impaired§223.6 Nebraska Court Rejects 2100:1 Ratio and Adjusts Margin of Error in Favor of

Defendant§223.6.1 Facts of Burling§223.6.2 The Nebraska Statutes§223.6.3 The Expert Testimony in Burling§223.6.4 The Burling Court Analysis§223.6.5 The Court Adjusts the Margin of Error§223.6.6 The Importance of the Burling Ruling§223.6.7 Partition Ratio Deemed Relevant to Presumption of Impairment Statute,

but Usually Irrelevant Under Breath Alcohol Concentration Statute§223.6.8 Using Cross-Examination to Attack the Partition Ratio

§223.7 Studies of the Accuracy of Breath Testing§223.8 Problems With Pennsylvania Breath Testing

§223.8.1 Pennsylvania Breathalyzer “Simulator Solution” Problems§223.8.2 Calibration and Testing of Breath Analyzer Does Not Make Test Results

Presumptively Accurate§223.8.3 Police Officer’s Testimony May Not Be Used to Re-Adjust Machine’s

Margin of Error When Motorist’s Breath Test Results Are Borderline


§223.8.4 Pennsylvania Strikes Down Variation of “Per Se” Law§223.8.5 Legislature’s Response to Commonwealth v. Barud Suffers From Some of

the Same Problems That Doomed Predecessor Law§224 Sources of Error in Breath Testing§225 Radio Frequency Interference§226 Mouth Alcohol

§226.1 Observation Period Violations§226.2 Silent Regurgitation§226.3 Gastro-Esophageal Reflux Disorder (GERD) and Silent Regurgitation§226.4 Dentures and Denture Adhesives§226.5 No Physical Inspection Required§226.6 Slope Detection and Mouth Alcohol

§226.6.1 Slope Detectors Are Not Sufficiently Reliable§226.7 Cross-Examining the Officer on Observation

§227 “Margin of Error” Evidence§227.1 What Is the “Margin of Error”?

§237.1.1 Margin of Error Evidence Is Irrelevant in License Revocation Proceedings§227.2 When Does the Margin of Error Evidence Apply?§227.3 Effect on Probative Value§227.4 Applying the Margin of Error in the Accused’s Favor§227.5 “Machine Round Up”§227.6 Preserving the Record§227.7 Motorist Facing Suspension of Driving Privileges Is Not Entitled to Have Test Results

Reduced by Margin of Error§228 The “Miles Apart” Defense§229 Breathing Pattern Defense

§230 Breath Analysis: The Machines§231 Intoxilyzer

§231.1 Theory and Operation§231.2 Sources of Error§231.3 CMI Intoxilyzer 5000 Series§231.4 Court Acceptance of the Intoxilyzer 5000§231.5 Problems With Intoxilyzer 5000 Air Blank§231.6 The Intoxilyzer Series 6800 and 6801§231.7 CMI Intoxilyzer 8000 Series

§232 Intoximeter§232.1 Theory and Operation§232.2 Sources of Error§232.3 Intoximeter Model 3000 (End of Life)§232.4 Modified Intoximeter Requires Recertification for Test Results to Be Admissible

§233 National Patent Analytical Systems, Inc., BAC Datamaster, BAC Datamaster K and BACDatamaster CDM (All End of Life)§233.1 Problems With the DataMaster§233.2 The DataMaster “DMT”

§233.2.1 Theory and Operation§233.2.2 How the DMT Is Different from the Standard DataMaster§233.2.3 States That Have Adopted or Are Considering Adopting the DMT

§234 Draeger Alcotest 7110 and 9510§234.1 New Jersey Source Code Challenge to the Draeger Alcotest

§235 The UCC Defense in Drunk Driving Trials§240 Blood Analysis

§241 Legal Requirements


(Rev. 29, 4/13)

§242 Enzymatic – Serum Blood Testing§242.1 Theory and Operation§242.2 Source of Error in Enzymatic Analysis§242.3 Automated Enzymatic Analysis§242.4 Serum Blood Test Results Generally Unreliable

§242.4.1 Unreliability Based on Conversion to Whole Blood§242.4.2 Uncertainty in the Serious Trauma Accident

§243 Gas Chromatography – Whole Blood Testing§243.1 Theory and Operation§243.2 Possible Defenses to the Gas Chromatography Result

§243.2.1 Proper Collection of the Blood Sample§243.2.1.1 Alcohol Contamination During the Blood Draw§243.2.1.2 Microbial Contamination During the Blood Draw

§243.2.1.2.1 Lack of Preservative Makes Blood Test ResultInadmissible

§243.2.2 Blood Sample Kits§243.2.3 Improper Mixing of Blood and Anticoagulant/Preservative Using Expired

Kit Makes Blood Alcohol Test Result Inadmissible§243.2.4 Transportation of the Blood Sample – Chain-of-Custody Issues§243.2.5 Blood Sample Storage Issues§243.2.6 Blood Test Preparation, Testing and Reporting Issues§243.2.7 Lab Audits Not Relevant to Later Chromatography Test Results

§244 Mass Spectrometry Blood Testing for Drugs (GC/MS)§245 Toxicology Reports

§245.1 The Purpose of the Toxicology Report§245.2 What Is Being Measured in the Toxicology Report?§245.3 Understanding Units of BAC Measurement

§250 Urinalysis§251 Theory and Operation§252 Urinalysis and Per Se Legislation

§252.1 The Rejection of Urinalysis Results by the Courts§252.2 Urine Test Does Not Prove Presence of Controlled Substance in Blood§252.3 Defendant May Challenge Conversion Ratio in Urine Test§252.4 Urine Test Results Obtained and Tested That Did Not Follow National Institute of Drug

Abuse Guidelines Were Inadmissible at Defendant’s Trial§260 New Technologies

§261 Alcohol Monitoring Ankle Bracelets§261.1 Theory and Operation§261.2 The Possibility of False Positives§261.3 Due Process Issues §261.4 Defending the Alleged Transdermal Monitoring Violation§261.5 Attacking the Admissibility of SCRAM

§262 Near Infrared (NIR) Spectroscopy§262.1 The TrueTouch 1100§262.2 The Science of Near Infrared Spectroscopy§262.3 Limitations of Near Infrared Spectroscopy

§263 EtG Urine Testing§263.1 EtG Testing Found Admissible But of Little Evidentiary Weight§263.2 Defending the Positive EtG Test

See the CD for Related FormForm 2-1 Table – Know Your LimitsForm 2-2 Brief in Support of Motion to Suppress Serum Blood Test Results


CHAPTER 3 PRE-TRIAL PREPARATION§300 Initial Client Contact

§301 Obtaining the Client’s Release From Jail§302 Interviewing the Client at the Law Office

§302.1 Chronology of the Incident§302.2 Prior Criminal Record§302.3 Identity of Witnesses§302.4 Statements or Admissions§302.5 Miranda or Implied Consent Rights§302.6 Other Factors

§303 Sizing Up the Client§304 Educating the Client

§304.1 Explain the Elements and the Consequences§304.2 Dealing With the Issue of Client Perjury

§305 The Celebrity Client§306 The Lawyer Client§307 Injured Drunk Driver

§310 Evaluating the Case§311 The State’s Case

§311.1 In General§311.2 Officer’s Observations§311.3 Field Sobriety Tests§311.4 The State’s Chemical Evidence§311.5 State’s Witnesses§311.6 Client’s Prior Convictions

§312 The Defense Case§312.1 The Constitutional Right to Present a Meaningful Defense§312.2 Defense Witnesses§312.3 Evidence of Habit§312.4 Expert Witnesses§312.5 Possible Defenses§312.6 Potential Penalties

§313 Under the Influence vs. Per Se Guilt§313.1 In General§313.2 “Under the Influence” Analyzed

§314 Plea and Sentence Bargaining vs. Trial§314.1 In General

§314.1.1 Consider Different Terminology: Plea and Sentence Negotiation§314.2 Instructing Client on Potential Defenses§314.3 Effects of Guilty Plea, Including Collateral Consequences

§314.3.1 Increased Driver’s License Sanctions for Commercial Drivers§314.4 Advising the Guilty Plea§314.5 Improper Conditions on Guilty Plea§314.6 Court Determines That California Statute Does Not Bar All Plea Bargains§314.7 Barring Improper Use of Defendant’s Statements Made During Plea Negotiations

§314.7.1 Use of Statements Made During Plea Negotiation§314.8 Plea Agreement Has Binding Effect on State Agencies

§315 Judge vs. Jury Trial§315.1 Voir Dire

§316 Summary§317 Claims Against the State


(Rev. 29, 4/13)

§320 The Drunk Driving Defense Fee§320.1 Determining the Individually Appropriate Fee for Your Clients

§321 Different Fee Structures Available§322 Retainer Agreements§323 The Reasonableness of the Fee

§323.1 The Fordham Facts§323.2 The Hearing Committee Findings§323.3 Court Proceedings§323.4 Factors Considered§323.5 The Expert Testimony

§330 Use of Investigators§331 In General§332 Interviewing Witnesses§333 Visiting the Scene

§340 Expert Witnesses§341 In General§342 Selection

§342.1 A Constitutional Right to Forensic Experts§342.2 Expert Assistance for the Indigent Client

§343 Preparation§344 Strategy

§344.1 Use of Demonstrative Evidence and Demonstrative Aids§344.2 Hypothetical Questions

§345 Preparing Your Cross-Examination of the State’s Experts§345.1 The Machine Operator

§345.1.1 Making Fundamental Objections§345.2 The Administrative Officer§345.3 The Forensic Expert

§345.3.1 Impeaching the State’s Expert§345.3.2 Obtaining Information to Impeach the State’s Expert§345.3.3 Questioning the Conduct of Expert Witnesses

§345.4 The Defense Expert§345.5 Court-Appointed Experts§345.6 State’s Cross-Examination and Impeachment of Defense Expert Deemed Proper§345.7 The Police Officer Gave Improper Opinion Testimony That Defendant’s Intoxication

on a Scale of 1 to 10 Was a “10 Plus”§345.8 Court Erred in Precluding Defendant From Cross-Examining Officer About NHTSA

Training§345.9 Attacking the Expert’s Qualifications

§346 Expert Witness Directory§347 The Prosecutor

§350 The Prosecutor§350.1 General Points§350.2 Prosecutors and Judges Shouldn’t Be Facebook Friends

§360 Avoiding Claims for Ineffective Assistance of Counsel§360.1 General Points§360.2 Maintaining Proper Communication With Your Clients§360.3 Padilla Advisory May Be Required on DUI Cases§360.4 Managing Your Client’s Expectations§360.5 Identifying and Managing Difficult Clients

§370 Resource Material


See the CD for Related FormsForm 3-1 DWI Client Interview FormForm 3-2 DWI Lay Witness QuestionnaireForm 3-3 Retainer and Fee Agreement #1Form 3-4 Retainer and Fee Agreement #2Form 3-5 “What to Expect” Client LetterForm 3-6 General Authorization to Release InformationForm 3-7 Authorization to Obtain Driving RecordForm 3-8 Authorization to Obtain Criminal/Arrest RecordsForm 3-9 Authorization to Obtain Counseling RecordsForm 3-10 Authorization to Obtain Probation RecordsForm 3-11 Authorization to Obtain Mental Health Records/Alcohol Counseling RecordsForm 3-12 Authorization to Obtain Insurance RecordsForm 3-13 Authorization to Obtain Military RecordsForm 3-14 Authorization to Obtain Educational RecordsForm 3-15 Instructions to Defense Witnesses Form 3-16 Authorization for Release of Medical Records (HIPAA)Form 3-17 First Letter to ClientForm 3-18 Expert Witness Interview FormForm 3-19 Motion for Appointment of Chemical ExpertForm 3-20 Motion for Appointment of Forensic ExpertForm 3-21 Motion to Withdraw a Guilty PleaForm 3-22 Brief in Support of Defendant’s Motion to Admit Demonstrative Evidence

CHAPTER 4 PRE-TRIAL DISCOVERY§400 The Prosecutor’s Legal and Ethical Duty to Provide Complete Discovery

§401 Rule 16 Discovery§401.1 Statements§401.2 Reports and Results§401.3 Software and Source Code§401.4 Prior Convictions§401.5 Court Improperly Denied Defendant’s Request for Discovery of Testing Laboratory

Standards and Other Records§402 Audiovisual Evidence

§402.1 Strozier Defines a Proper Foundation§402.2 A Break in the Chain of Custody May Mean Acquittal§402.3 State’s Failure to Videotape May Provide Exculpatory Argument§402.4 Videotaping Upheld in Ramirez§402.5 Videotaping as Reversible Error§402.6 Discovery of Taped Evidence§402.7 Applicability of the Confrontation Clause to Video and Audio Recordings§402.8 Use of Videotaped Evidence at Trial§402.9 Using an HGN Training Video at Trial

§403 Freedom of Information Act§403.1 Obtaining Government Reports

§404 Discovery Orders§410 Procedures in General

§411 Motions§412 Constitutional Issues

§420 Protective Orders§430 Sanctions

§431 Appropriate Sanctions as Determined by the Court§432 Defendant’s Remedies for Officer’s Falsification of Breath Tests May Even Include the Post-

Conviction Dismissal of Charges


(Rev. 29, 4/13)

See the CD for Related FormsForm 4-1 Freedom of Information Act Request (re: Roadblocks)Form 4-2 Freedom of Information Act Request to NHTSAForm 4-3 Motion for Discovery; Discovery Request and Memorandum of LawForm 4-4 Motion for Discovery of Material Within State’s Constructive PossessionForm 4-5 Motion to Depose Arresting OfficerForm 4-6 Defendant’s Discovery Request (Including Blood Testing)Form 4-7 Omnibus Discovery Demand (Including Blood Testing)Form 4-8 Blood SubpoenaForm 4-9 Subpoena Duces Tecum (Breath Testing)Form 4-10 Discovery Request (Including Breath Testing)Form 4-11 Authorization to Disclose Health Information (HIPAA)Form 4-12 Respondent-Motorist’s Interrogatories to Petitioner (Department of Motor Vehicles)Form 4-13 Letter to Arresting Agency Requesting Video RecordingForm 4-14 Breath Test Video Recording ChecklistForm 4-15 Freedom of Information Act Request (Blood)

CHAPTER 5 PRE-TRIAL MOTIONS§500 In General§510 Motions in Limine

§511 Disadvantages of Motions in Limine§512 Timing and Form§513 Admissions and Confessions in Drunk Driving Cases

§513.1 Admissions§513.1.1 Personal Admissions§513.1.2 Adoptive Admissions§513.1.3 Foundation Requirements§513.1.4 Vicarious Admissions§513.1.5 Judicial Admissions

§513.2 Confessions§513.2.1 Tactics for Dealing With Confessions

§514 Blood Alcohol Tests and the Unconscious Driver§515 Sixth Amendment Waiver Does Not Require an Advisory on the Value of Counsel at the Plea Stage§516 The Applicability of the Confrontation Clause to the Admissibility of Chemical Evidence in

Drunk Driving Cases§516.1 Defendant Must Be Given an Opportunity to Cross-Examine Affiant Re Testimonial

Statements of Circumstances of Blood Draw§516.2 Admission of Toxicolgist’s Certificant or Blood Sample Collection Form Does Not

Violate Federal Confrontation Clause§516.3 Applicability of Crawford and Melendez-Diaz to Breath Test Cases§516.4 Confrontation Clause Not Applicable to Police Video Recording§516.5 Confrontation Clause and Driving With Suspended License

§520 Motion to Strike Prior Convictions§521 The Basis for Attacking Prior Convictions

§521.1 Prior DUI Conviction Is an Essential Element When It Increases the Penalty and theDegree

§521.2 Collateral Attack of Prior DWI Conviction Where Change in Law Made DefendantInnocent

§521.3 Collateral Attack of Prior DWI Conviction Where Uncounseled Defendant GivenIncomplete Information About Benefits of Obtaining Legal Assistance

§522 Sentence Enhancement§523 Federal Court Relief

§523.1 Petition for Writ of Habeas Corpus


§524 Uncounseled Convictions and Sentence Enhancement§524.1 Tribal Conviction May Be Used to Enhance State DUI Charge

§525 Disposition of Supervision Does Not Constitute Prior Conviction for Sentence Enhancement§526 Apprendi and Prior Convictions: In Which Direction Is the Court Headed?

§526.1 Court’s Failure to Advise the Defendant of His Right to a Jury Trial Results in Exclusionof a Prior Conviction

§526.2 Apprendi Applies to Drunk Driving Cases§527 Waiver of Right to Counsel

§530 Motions to Dismiss§531 Double Jeopardy

§531.1 Actual Jeopardy§531.2 Multi-Jurisdictional Offense§531.3 Multiple Prosecutions Stemming From One Incident§531.4 Separate Convictions When More Than One Injury§531.5 Double Jeopardy Can Apply to Court Errors§531.6 Double Jeopardy Does Not Attach Until Evidence Is Received§531.7 Guilty Plea to Misdemeanor Did Not Preclude Felony§531.8 Double Jeopardy and Civil Penalties, Forfeitures and License Suspensions§531.9 License Suspensions as Remedial

§531.9.1 Consider Habeas Corpus Petitions§531.9.2 Civil Forfeiture of Drunk Driver’s Vehicle Not “Punishment” for Purposes

of Double Jeopardy§531.10 Refusing a Breath Test and Driving Under the Influence of Alcohol Are Distinct and

Separate Offenses; Double Jeopardy Does Not Apply§531.11 No Double Jeopardy Violation in Prosecution for Driving While Intoxicated on

Military Base Following Disciplinary Measures§531.12 Double Jeopardy Does Not Attach Where Bench Trial Is Continued Until a Later Date§531.13 Double Jeopardy Does Not Bar Subsequent Trial Where Defendant’s Motion to

Dismiss Is Based on Prosecutorial Negligence.§532 Collateral Estoppel

§532.1 Collateral Estoppel Distinguished From Double Jeopardy§532.2 Use of Collateral Estoppel in Drunk Driving Cases

§532.2.1 Administrative Hearings§532.2.2 Collateral Estoppel Did Not Bar State From Litigating a Motion to

Suppress Hearing on a Probable Cause Issue Where Issue Had BeenDecided Adversely at a Prior Administrative Suspension Hearing

§532.2.3 Collateral Estoppel Does Not Bar Re-Litigation of Probable Cause IssuesPreviously Determined at Administrative Court

§532.3 Other Applications§532.4 Collateral Estoppel and Prior Judicial Proceedings§532.5 Collateral Estoppel Does Not Apply to Subsequent Administrative Hearings§532.6 Factors to Consider in Determining Whether Collateral Estoppel May Apply§532.7 “Acquittal” on Per Se Drunk Driving Charge May Require License Reinstatement§532.8 Judicial Estoppel§532.9 Driving Under the Influence Charge Not Precluded by Double Jeopardy, Res Judicata

or Collateral Estoppel§532.10 Lack of Suspicion for Stop Finding Made by Administrative Law Judge Does Not Bar

Prosecution for DWI Under Collateral Estoppel§532.11 Criminal Court’s Ruling on Invalid Arrest Had No Collateral Estoppel Effect in Driver’s

License Revocation Proceeding§532.12 State Is Collaterally Estopped From Re-Litigating Refusal Issue§532.13 Collateral Estoppel Bars Admission of Breath Test Results in Administrative Suspension

Hearing


(Rev. 29, 4/13)

§533 Speedy Trial§533.1 What Is an Unreasonable Period of Time?§533.2 Dismissal Because of State’s Failure to Be Timely§533.3 Delay Between Arrest and Filing of Complaint Does Not Warrant Dismissal§533.4 Delay of 696 Days Violated Defendant’s Statutory Right to Speedy Trial

§534 Denial of Access to Counsel§534.1 The Right to Counsel Before Chemical Test

§534.1.1 Remedy§534.2 The Right to Privacy

§534.2.1 Court Holds Farrell Standards Met§534.2.2 Suspect Granted the Right to Counsel Cannot Be Denied the Right to

Meaningful Access§534.2.3 Holland as Persuasive Reasoning for Right to Counsel Before Submitting

to Sobriety Tests§534.2.4 Audiotaping Arrestee’s Conversation With Attorney Violates Ohio Statute§534.2.5 Videotaping and Right to Counsel

§534.3 Knowing Waiver of Rights§534.4 Right to Consult With Parents§534.5 Interference With Right to Independent Testing

§534.5.1 Due Process Does Not Require the Police to Advise Drunk Driving Suspect of Right to Obtain Independent Blood Test Before Submitting to aPreliminary Breath Test (PBT)

§534.5.2 Trial Court Erred in Admitting Breath Test Where Defendant DeniedOpportunity for Independent Test

§534.5.3 Drunk Driving Arrestee Who Refuses to Submit to State’s BAC Test HasNo Right to Independent Test

§534.5.4 Suppression as Remedy Where Officer Dissuades Independent Test§534.6 Due Process Analysis Requires Use of Telephone to Gather Evidence

§534.6.1 Drunk Driving Arrestee Has Right to Independent Test Even if He Refusesto Submit to a Chemical Test

§534.7 Due Process Violation Occurs When BAC Results Are Offered in Evidence WhereOfficer Affirmatively Mislead Driver

§534.8 Due Process Not Implicated by Government’s Refusal to Allow Independent Test§534.9 Defendant Did Not Have Enforceable Cooperation Agreement With Prosecutor§534.10 Statute Does Not Provide Absolute Right to Counsel

§535 Miranda Problems§535.1 When Should Miranda Warnings Be Given?§535.2 When Defendant Rates His Own Intoxication§535.3 Right to Counsel Does Not Depend on Custody§535.4 Some States Apply Broader Standard§535.5 Miranda and Medical Treatment§535.6 Unwarned Questioning May Be Allowed at Accident Scene§535.7 Lack of Miranda Rights Leads to Suppression of Chemical and Field Sobriety Test

Evidence §535.8 Congress May Not Overrule Miranda§535.9 No Presumption of Waiver of Miranda Rights§535.10 Privilege Against Self-Incrimination Not Violated By Admitting Refusal to Submit to

Breath Test§535.11 Court Allows Officer to Testify as Lay Witness Regarding Observations He Made of

Defendant’s Performance on SFST§536 Probable Cause

§536.1 The Anonymous Tip§536.1.1 Minimal Corroboration Required Based on Danger to Public


§536.2 Necessity of Specific and Articulable Suspicion§536.2.1 Both the Passenger and Driver of a Stopped Vehicle Have Standing to

Challenge the Stop’s Constitutionality on Fourth Amendment Grounds§536.2.2 Anonymous Tip of “Possible Altercation” Did Not Support Stop of Vehicle§536.2.3 Slow Driving Alone Insufficient Reasonable Suspicion§536.2.4 Driving at Two O’Clock in the Morning With Temporary Demonstration

Dealer Plates Insufficient Reasonable Suspicion§536.2.5 Spinning Tires Insufficient Basis to Stop Vehicle§536.2.6 Merely Looking Suspicious Is Not Enough to Validate a Terry Stop

§536.3 Investigatory Stop Made for Unrelated Purpose§536.3.1 The Doctrine of Pretextual Traffic Stops§536.3.2 Search of Vehicles Under the “Automobile Exception” Requires Exigent

Circumstances as Well as Probable Cause§536.3.3 Officer’s Activation of Emergency Lights Amounted to a De Facto

Detention Under the Fourth Amendment§536.3.4 The Community Caretaking Exception

§536.3.4.1 Failure to Perform Community Caretaker Function as Basisfor Dismissal

§536.3.5 Pretextual Stops and Arrests Do Not Violate Constitution§536.3.6 Good Faith Exception to the Fourth Amendment Exclusionary Rule

Applies to Evidence Obtained During Unconstitutional Vehicle StopPremised on Inaccurate DMV Information

§536.4 Intoxication Manifested Through Driving Conduct§536.4.1 Can Accidents Supply Probable Cause to Test Motorists for Alcohol and

Drugs?§536.4.2 Illinois Approves Mandatory Chemical Testing for Drivers Involved in

Serious Accidents§536.4.3 State Can Prosecute Defendant for Driving Under the Influence of Alcohol

Even if BAC Result Is Less Than Legal Limit§536.5 Two-Pronged Test for Informant’s Tip

§536.5.1 Anonymous Tip Must Be Reliable §536.5.2 Fourth Amendment Is Violated When Stop Is Based on Inadequately

Corroborated Facts§536.5.2.1 Police Officer Must Corroborate Anonymous Tip for Vehicle

Stop to Be Valid§536.5.3 California Case Upholds Conviction Based on Anonymous Tip§536.5.4 Preparing a Defense§536.5.5 Trying the Anonymous Informant Case§536.5.6 “General” Tip Warrants Motion to Suppress§536.5.7 Police Officer’s Receipt of a Tip From a Citizen Who Had Provided

Information in the Past, Provided Reasonable Suspicion to Stop VehicleUnder Fourth Amendment

§536.5.8 Why Do Courts Come to Different Conclusions on Probable Cause andAnonymous Informants?

§536.5.9 The Defense Strategy in Anonymous Informant Cases§536.5.10 Citizen Informant’s Tips Subjected to Three Part Test

§536.6 Odor Alone Does Not Establish Probable Cause§536.6.1 Mere Presence of Alcohol Insufficient to Stop, or Later to Arrest, Driver§536.6.2 Odor of Alcohol Combined With Special Needs Exception Makes Breath

Test of Teacher Constitutional§536.7 Mere Involvement in an Accident Does Not Establish Probable Cause

§536.7.1 Officer Could Request Motorist to Produce Documents After Basis for HisStop Ended


§536.7.2 State Law Authorizing Blood Testing of Drivers Involved in AutomobileAccidents Violates Fourth Amendment

§536.7.3 Accident and Consumption of Alcohol Insufficient to Establish ProbableCause

§536.8 Roadside Stops§536.8.1 Demonstrating How Circumstantial Evidence of Alcohol Impairment Can

Be Irrelevant and Prejudicial§536.8.2 Court Rules That Citizens Stopped for Traffic Offenses Need Not Be

Informed That They Are Free to Go After Valid Detention§536.8.3 Police May Order Driver and Passengers Out of the Car§536.8.4 Officer Lacked Objective Grounds to Conclude Defendant Was Under

Influence of Alcohol§536.8.5 DUI Tags and Discretionary Stops§536.8.6 Field Sobriety Testing

§536.8.6.1 Testing Not Required Before DUI Arrest §536.8.6.2 Transporting Driver in Back of Police Vehicle to Law

Enforcement Center to Conduct Field Sobriety TestsConstitutes De Facto Arrest

§536.8.7 Traffic Stop for Failure to Use Signal When Changing Lanes on HighwayValid

§536.8.8 Lane Use Violation and Failing to Dim Lights Insufficient Basis for TrafficStop

§536.9 Warrantless Entries Into Homes§536.9.1 Co-Tenants – Expectation of Privacy

§536.9.1.1 Both Co-Tenants Must Consent to Warrantless Search§536.9.2 Exigent Circumstances, Destruction of Evidence and Warrantless Entries

§536.9.2.1 Exigent Circumstances Not Sufficient to Allow WarrantlessEntry

§536.9.2.2 Hot Pursuit and Warrantless Entry§536.9.2.3 “Community Caretaker” Function Not Sufficient to Allow

Warrantless Entry§536.9.3 Challenging Warrantless Entries

§536.10 Pretextual Stops and Arrests Do Not Violate Constitution§536.10.1 Good Faith Exception to the Fourth Amendment Exclusionary Rule

Applies to Evidence Obtained During Unconstitutional Vehicle StopPremised on Inaccurate DMV Information

§536.11 Extraterritorial Stops§537 Entrapment§538 Search Warrants and Chemical Test Results

§538.1 Presence of Alcohol Not Enough to Constitute a Per Se Exigent CircumstanceSufficient to Justify a Warrantless Blood Draw

§538.2 Search Warrant for Blood Must Contain Specific Facts to Establish More Than MereSpeculation a Specific Offense Was Committed

§538.3 Exigent Circumstances Enough to Allow Urine Test Without Warrant§540 Motions to Suppress

§541 Lost or Destroyed Evidence§541.1 Copy of Breath Test Ticket Violates Best Evidence Rule

§542 Preservation and Admissibility§542.1 Result of Unpreserved Blood Sample Admissible as “Other Evidence” of Intoxication

§543 Preservation and Due Process§543.1 Due Process Claims Under State Law

§544 Preservation and Equal Protection§544.1 Long Recognized Importance of Objective and Scientific Evidence to a Fair Adjudication§544.2 Jail Staff Has No Obligation to Advise How to Obtain Independent Blood Alcohol Test§544.3 Officer’s Violation of Implied Consent Statute Does Not Warrant Suppression of Blood

Test Result(Rev. 29, 4/13)


§545 Coercion as Grounds for Suppression§546 Your Line of Attack

§546.1 Attacking Breath Testing§546.2 Suppressing Other Evidence Found During Search of Vehicle

§547 Compliance With Statutory Requirements§547.1 Challenging Software Changes to the Chemical Test Instruments§547.2 Unadopted Breath Test Administration Rules Fail to Support Test Result Admission§547.3 Failure to Establish Temperature of Calibration Solution Warrants Suppression of

Breath Test Results§547.4 Blood Alcohol Results Produced by Hospital as Part of Treatment Admissible in

Criminal Case§547.4.1 Failure to Properly Object to Maintenance Report Precludes Claim That

Breath Test Machine Was Not Properly Maintained§547.5 Foundation Requirements Must Be Met That Procedures Are Followed Before Breath

Test Results May Be Admitted§547.6 Observation Period Rule Did Not Require Officer Observing Defendant to Also Be the

Officer Administering the Chemical Test§547.7 Challenging the Prosecution’s Technical Noncompliance With Rules and Regulations§547.8 Suppression or Dismissal Appropriate Remedies Where Implied Consent Rights Not

Read, Improperly Read or Read Prior to Arrest§547.9 Conviction For Operating With an Illegal Blood Alcohol Content Reversed Based on

Insufficient Foundation of BAC Result§547.10 Technical Noncompliance With Regulations Does Not Warrant Suppression of

Chemical Test Results§547.11 Department of Health Regulations for Breath Testing Ruled Adequate§547.12 Foreign Substances: Chewing Tobacco; Jewelry§547.13 Breath Test Results That Express Alcohol Concentration in Terms of Volume Rather

Than by Weight Are Sufficient to Sustain a Conviction§548 Weights and Measures Standards Can Be Used to Suppress Breath Test Results§549 Confronting “Junk” Science in the Courtroom: The Daubert Case

§549.1 Daubert on Remand§549.2 Daubert and Kumho Tire§549.3 Using Daubert to Defend Alcohol and Drug Impairment Cases§549.4 Daubert-Proofing the Defense Expert

§549.4.1 Proper Selection of the Expert§549.5 Preliminary Breath Tests Can Aid the Defendant

§549.5.1 Preliminary Breath Test Results Not Admissible in Prosecution’s Case inChief

§549.5.2 Preliminary Breath Test Device Need Not Comply With Evidential BreathTest Standard

§549.5.3 Daubert Challenges to PBT Evidence§549.5.4 Evidence of PBT Results From Defendant’s Passengers Excluded§549.5.5 The Evidence of a Defendant’s Refusal to Take a PBT Is Inadmissible, but

Counsel’s Failure to Object to the Refusal Did Not Establish IneffectiveAssistance Claim

§549.5.6 Mandatory PBTs for Minors Ruled Unconstitutional§549.5.7 Improperly Administered PBT Not Admissible to Aid in Probable Cause

Determination§550 Constitutionality of Roadblocks

§551 Problem of Constitutionality§551.1 Defined Standards§551.2 Balancing Test for State’s Interest

§552 The Human Carnage Exception


(Rev. 29, 4/13)

§553 An Unconstitutional Roadblock—McGeoghegan§553.1 No Showing of Necessity§553.2 Unbridled and Absolute Discretion Improper§553.3 Texas Courts Hold Roadblocks Unlawful in Higbie and Padgett

§554 Roadblocks Approved by Court§554.1 Dissent Based on Less Intrusive Means

§555 Roadblocks Struck Down§555.1 Procedure or Guidelines Unclear

§555.1.1 Written Patrol Worksheet Does Not Satisfy Requirement of WrittenGuidelines for Police Roadblocks

§555.2 Court Establishes Eight-Point Standard for Roadblocks§555.3 Probable Cause and Compliance With Policies Must Be Demonstrated§555.4 Intrusion Too Great§555.5 New Mexico Constitution Does Not Require Probable Cause or Warrant to Conduct

Sobriety Checkpoint§555.6 Patrol Worksheet Does Not Satisfy Requirement of Written Guidelines for Operating

Traffic Safety Roadblock§555.7 Tollbooths as De Facto Roadblocks§555.8 Multiple Purposes of Roadblock Made It Unconstitutional§555.9 Roadblocks to Detect Unlicensed Drivers

§556 Cases Upholding Constitutionality of Roadblocks§556.1 Compelling State Interest, Minimal Intrusion and Substantial Impact§556.2 Research Stops Constitutional§556.3 Using Stark to Challenge Roadblocks§556.4 Guidelines Set Forth

§556.4.1 Application of Facts§556.5 Lack of Advance Publicity Does Not Render Sobriety Checkpoint Unconstitutional§556.6 Requirement of Written Plan for Operation§556.7 Advance Warning Devices Not Required at Roadblocks§556.8 Deviation From Departmental Plan May Make Roadblock Unconstitutional§556.9 Avoidance of Roadblock May Not Provide Probable Cause for Stop§556.10 Illinois v. Lidster: Supreme Court Upholds Roadblock Against Defense Attacks§556.11 Driver Who Turned Away Has Standing to Challenge Constitutionality of Police

Checkpoint§557 Roadblocks Which Violated State Constitutions: Pimental and Koppel

§557.1 The Court’s Analysis§557.2 Do Roadblocks Deter Drunk Driving?§557.3 Roadblocks and the New Administrative Search Doctrine

§558 Course of Action When Faced With a Roadblock Case§558.1 NHTSA Roadblock Report§558.2 ABA Report on Roadblocks

§559 Legislative Attempts to Validate Sobriety Checkpoints§559.1 Stop of Vehicle for Avoiding a Roadblock Is Illegal§559.2 Challenging Roadblocks After City of Indianapolis v. Edmund§559.3 Ruse Checkpoints Violate Constitution

§560 Field Sobriety Tests§561 General Points

§561.1 The Testing Process§561.2 Field Sobriety Tests Must Be Administered in Strict Compliance With Standardized

Procedures§561.3 United States v. Horn: Challenging Field Sobriety Tests

§562 Probable Cause and Roadside Sobriety Tests§562.1 Is the Field Sobriety Test a Statement for Purposes of Miranda?


§562.2 Field Sobriety Tests May Elicit Tangible Evidence§562.3 Multi-Task Field Sobriety Tests Are Not Testimonial Under the Oregon Constitutional

Counterpart to the Fifth Amendment Privilege Against Compelled Self-Incrimination§562.4 Field Sobriety Tests Require Particularized Suspicion

§563 Challenging the Horizontal Gaze Nystagmus Test§563.1 A Proper Foundation Paves the Way for Admissibility of HGN Results

§563.1.1 Court Takes Judicial Notice of HGN Test Reliability§563.1.2 Horizontal Gaze Nystagmus Results May Supply Basis for Police Officer’s

Conclusion That Motorist Was Under the Influence of Alcohol§563.1.3 HGN Test Not Admissible to Prove Defendant Had a Particular Blood

Alcohol Content§563.2 HGN as Scientific Evidence

§563.2.1 Procedures and Results of Field Sobriety Tests and HGN Tests WereAdmissible Under Rule 702

§563.2.2 HGN Must Meet Daubert Criteria§563.3 Illinois Requires Frye Hearing on HGN§563.4 HGN Evidence Is Scientific Evidence in Oregon§563.5 Mounting Scientific Evidence That the HGN Test Is Unreliable§563.6 Optometrists’ Study Indicates Problems With HGN Test§563.7 Contact Lenses and HGN§563.8 Court Takes Judicial Notice That Results of HGN Test Are Sufficiently Reliable to Be

Admissible§563.8.1 Prosecutors Need Not Present Evidence of Reliability and General

Scientific Acceptance of Horizontal Gaze Nystagmus Test§563.8.2 Judicial Notice of HGN Reliability Is Improper

§563.9 The Scientific Validity of the Horizontal Gaze Nystagmus Test Under Daubert§563.10 Results of Horizontal Gaze Nystagmus (HGN) Test Are Admissible at Trial for Driving

Under the Influence of Alcohol§563.11 Horizontal Gaze Nystagmus (HGN) Correlates With Alcohol Usage§563.12 Trial Court Erred in Admitting Vertical Gaze Nystagmus Test

§570 Involuntary Statement or Confession§580 Privileges

§581 Suppressing the Results of a Blood Test by Arguing Privilege§581.1 No Public Policy Exception to Physician-Patient Privilege

§582 Questionable Applicability in Criminal Cases§582.1 Investigative Subpoena for Drunk Driving Suspect’s Medical Records Requires

Probable Cause§582.2 Preventing Grand Jury Abuse in Drunk Driving Cases

§583 Privilege Is Not a Shield§584 Necessary Conditions for Privilege to Attach§585 Waiver of the Privilege§586 Automobile Accident Report Privilege

§590 Americans With Disabilities Act§591 Americans With Disabilities Act Claim Is Not Implicated in Drunk Driving Arrest§592 Denial of Request for Sign Language Interpreter Does Not Violate Americans With Disabilities

Act§593 Using the Americans With Disabilities Act to Keep Field Sobriety Test Results Out of Evidence

See the CD for Related FormsForm 5-1 Client Letter re: Pre-Trial HearingForm 5-2 Motion to Suppress for Unreasonable Search and Seizure (Unconstitutional Roadblock);

Memorandum of LawForm 5-3 Motion to Dismiss Based on Lack of Probable Cause—”Avoidance” of RoadblockForm 5-4 Motion to Allow Evidence Rebutting Results of Chemical Test; Memorandum in Support


(Rev. 29, 4/13)

Form 5-5 Motion to Strike Prior Conviction; Memorandum in Support; Defendant’s AffidavitForm 5-6 Motion to Suppress Breath Test Results (Deprived of Effective Assistance of Counsel);

Memorandum in SupportForm 5-7 Motion to Suppress Breath Test Results (Breath Specimen Not Preserved); Memorandum in

SupportForm 5-8 Motion to Suppress Breath Test Results (Improper Test Administration)Form 5-9 Motion to Suppress Breath Test Results (Unacceptable Discrepancy)Form 5-10 Motion to Suppress Breath Test Results (Not Specific for Ethyl Alcohol); Expert’s AffidavitForm 5-11 Motion to Suppress Breath Test Results (Lack of Probable Cause); Memorandum in SupportForm 5-12 Motion to Suppress Breath Test Results (Inadequate Foundation); Memorandum in SupportForm 5-13 Brief to Suppress Breath Test (Observation Period)Form 5-14 Motion to Suppress Urinalysis Results; Memorandum in SupportForm 5-15 Motion to Suppress Results of Field Sobriety Tests or Alternatively to Allow Defendant to

Demonstrate Ability to Perform Tests at Trial; Memorandum in SupportForm 5-16 Brief to Suppress Field Sobriety TestForm 5-17 Motion to Exclude Police Testimony (Admissions While Preparing Accident Report)Form 5-18 Motion to Exclude Evidence of Refusal to Submit to Chemical and Field Sobriety TestsForm 5-19 Motion to Preclude Impeachment Through Prior DWIsForm 5-20 Defendant’s Motion in LimineForm 5-21 Brief to Dismiss ADA ViolationForm 5-22 Motion to Dismiss for Double Jeopardy (Lesser Included Offense)Form 5-23 Motion to Dismiss for Double Jeopardy (Administrative and Criminal Adjudication);

Memorandum in SupportForm 5-24 Brief in Support of Motion to Suppress Serum Blood Test Results or in the Alternative for

Daubert Evidentiary Hearing

CHAPTER 6 TRIAL PRACTICE§600 In General

§601 Computers and iPads in Drunk Driving Litigation§602 The Drunk Driving Defense Trial Notebook

§602.1 Design of the Notebook§603 Juror Questionnaires in Drunk Driving Cases§604 A Great Defense Begins With a Great Investigation

§604.1 Developing Themes in Drunk Driving Trials§605 Persuading Juries With Metaphors and Analogies

§605.1 Sample Cross-Examination Using Metaphors and Analogies§605.2 Sample Metaphors and Analogies for Use During Summation

§606 Using the Psychology of Influence to Persuade Juries§606.1 The Psychological Principle of Reciprocation§606.2 The Psychological Principle of Scarcity§606.3 The Psychological Principle of Authority§606.4 The Psychological Principle of Consistency§606.5 The Psychological Principle of Consensus§606.6 The Psychological Principle of Liking

§607 The Sociometry of Jury Selection, Persuasion, Deliberation and Acquittal§607.1 The Development of the Sociometric Cycle§607.2 The Application of Sociometry to the Life Cycle of the Criminal DUI Trial§607.3 Using the Sociometric Cycle in Trial

§608 Empowering the Jury to Provide Justice§609 The History of Jury Nullification and Its Application to Drunk Driving Trials

§610 Voir Dire§611 Judge- vs. Attorney-Conducted Voir Dire§612 The Importance of Self-Disclosure in Voir Dire


§613 Voir Dire on Specific Issues§613.1 Voir Dire on General Fitness§613.2 Voir Dire on Jurors’ Use and General View of Alcohol§613.3 Voir Dire on Refusal or Attempted Completion of Field Exercises§613.4 Voir Dire on Defendant Not Taking Stand§613.5 Voir Dire on Chemical Testing§613.6 Voir Dire on Predisposition to Find Person Who Refused Test Guilty§613.7 Voir Dire on Burden of Proof and Presumption of Innocence

§614 Jury Selection in the Worse Cases§615 Limitation of Voir Dire May Require Reversal§616 Methods to Make the Right Impression on the Jury§617 Using Open Ended Questions to Deal With “Bad” Answers in Voir Dire§618 Challenges for Cause§619 Racially Biased Preemptory Challenges

§620 How to Make an Effective Opening Statement§621 When the Opening Statement Should Be Waived§622 When the Opening Should Be Reserved§623 What to Say in the Opening

§623.1 Addressing the Chemical Test Results During Opening Statement§624 How to Deal With Bad Facts§625 Avoid Making Promises During the Opening Statement§626 Beware of Judicial Admissions§627 Focus on the Prosecutor’s Opening Statement§628 Focus on the Strengths of Your Case§629 Humanize the Client/Dehumanize the Prosecutor

§629.1 Strive to Maintain a Professional Relationship With the Court and the Prosecutor§629.2 Non-Defensive Opening Statements§629.3 Presenting the Defense Case the Way People Think§629.4 Establishing a Home Field Advantage in the Opening Statement

§630 Cross-Examining Prosecution Witnesses§631 The Arresting Officer

§631.1 Cross-Examination Questions for Police Officers§631.2 Alcohol Influence Report Form§631.3 Police Officer May Not Testify That Defendant’s Behavior Was Consistent With

Excessive Blood Alcohol Content§631.4 Suggestions on Cross-Examining the Arresting Officer on Issues of Defendant’s Initial

Appearance, Behavior and Demeanor§631.5 Keep the Police Officer in Check During Cross-Examination§631.6 Dealing With Police Officer “Pattern” Responses§631.7 New Grounds to Challenge Police and Lay Witness Testimony on Intoxication

§631.7.1 An Update on Questioning Police and Lay Witness Testimony onIntoxication

§631.8 Using Tic-Tac-Toe to Cross-Examine an Officer§631.9 Learning to “Pitch” to Prosecution “Hitters”§631.10 Cross-Examining the Officer on Field Sobriety Tests§631.11 Cross-Examining From NHTSA Manual§631.12 Using Defense-Oriented Words, Phrases and Messages

§632 The Breath Test Operator§632.1 Background and Training§632.2 Partition Ratio§632.3 Operation of the Breath Testing Equipment§632.4 Calibration of the Breath Testing Equipment§632.5 Observation of the Defendant§632.6 Inconsistency of Observation and Machine Results


(Rev. 29, 4/13)

§632.7 Non-Specificity for Beverage Alcohol§632.8 Possible Machine Malfunctions§632.9 The Intoxilyzer 5000§632.10 The DataMaster§632.11 Cross-Examining the Breath Test Technician§632.12 Cross-Examining the Breath Test Technician on the Pre-Test Observation Period§632.13 Controlling the Prosecution Expert

§633 Technician for Other Tests§633.1 Cross-Examining a Technician on Blood Test Results§633.2 Cross-Examining a Technician on Urinalysis Results

§634 The Examining Physician§634.1 Cross-Examination of the Medical Witness on Differential Diagnosis

§635 Prosecution Lay Witnesses§636 Cross-Examining Lay Witnesses to Establish Reasonable Doubt

§636.1 Suggestion on How to Deal With the Percipient Witness§636.2 Cross-Examination Strategies of the Percipient Witness

§637 Witness Sequestration Rules§640 Audio-Visual Evidence

§641 Use of Videotapes in Drunk Driving Cases§641.1 Use and Admission of Videotapes by the Defense

§641.1.1 Trial Court Erred in Denying Defense Request to Play Videotape§641.2 Checklist on Evidentiary Concerns of Videotape Evidence in Drunk Driving Cases§641.3 Drunk Driving Arrest and Crime Scene Videos§641.4 Crimes in Progress/Station Videotapes§641.5 Videotaped Confessions and Statements

§641.5.1 Foundation Requirements§641.5.2 Voluntariness of Confession

§641.6 Possible Defense Uses of Videotaped Confessions and Statements§641.7 Other Grounds to Exclude Portions of Videotaped Confessions

§641.7.1 Exculpatory Videotaped Statement§641.7.2 Videotapes of Physical and Psychological Conditions§641.7.3 Defense Use of Videotapes Showing Physical or Psychological Conditions

§641.8 Videotaped Experiments§641.8.1 Videotaped Re-Creations and Reenactments

§641.9 Third-Party Prepared Tapes§641.10 Other Uses of Videotapes§641.11 Videotaped Depositions in Drunk Driving Cases

§641.11.1 Foundation Requirements for Videotaped Depositions§641.12 Cross-Examination on Videotape Evidence

§642 Use of PowerPoint in Drunk Driving Trials§642.1 Using PowerPoint During Voir Dire §642.2 Using PowerPoint During Opening Statement§642.3 Using PowerPoint in Direct and Cross-Examination§642.4 Using PowerPoint in Closing Argument

§650 Witnesses§651 Direct Examination of Defense Witnesses

§651.1 Fact Witnesses§651.2 Character Witnesses§651.3 Expert Witnesses§651.4 Direct Examination of Expert Witnesses§651.5 Defense Expert Was Improperly Prevented From Testifying

§652 Should You Call Defendant as a Witness?§652.1 Defendant May Stipulate to Prior Offenses of Indictment§652.2 Defendant Had Right to Provide Jury With Personal Demonstration of Speaking Ability

and Physical Condition of Mouth Without Subjecting Defendant to Cross-Examination


§660 Dealing With the Chemical Test Refusal at Trial§661 Moving to Preclude Mention of Test Refusal

§661.1 Evidence of Refusal Not Admissible§662 Admitting the Defendant’s Test Refusal Does Not Violate Right Against Self-Incrimination

§670 Misconduct§671 Prosecutorial Misconduct

§671.1 The Role of the Prosecutor§671.2 A Hostile Judiciary§671.3 Common Areas of Misconduct

§671.3.1 Violating the Privilege Against Self-Incrimination or Failure to ObtainIndependent Test

§671.3.2 Attacking the Defendant§671.3.2.1 Making Personal Comments About the Defendant§671.3.2.2 Suggesting That Defendant Poses a Threat

§671.3.3 Attacking Defense Counsel or Defense Counsel’s Arguments§671.3.4 Trumpeting the Prosecutor’s Office§671.3.5 Misrepresenting the Trial Record; Misstatements of Fact/Alluding to Facts

Outside Record§671.3.6 Vouching for the Credibility of a Witness or Offering a Personal Opinion

About the Breath or Blood Test, or Evidence of the Defendant’s Guilt§671.3.7 Inflaming the Jury§671.3.8 Golden Rule Arguments: Asking Jurors to Put Themselves in Place of

Victim§671.3.9 Improper Attacks on Defense Experts§671.3.10 Misconduct Regarding Defendant’s Prior Convictions§671.3.11 Misconduct Regarding Witness Vouching, Expressing Personal Opinion,

and Defendant’s Post-Arrest Silence§671.3.12 Telling the Jurors to “Do Your Job,” Fulfill a Duty, Send a Message or Act

as the Conscience of the Community§671.3.13 Abusing Rebuttal Argument or Referencing the Less Serious Offense First§671.3.14 Misstating the Law of Reasonable Doubt, Presumption of Innocence of

Burden of Proof§672 Judicial Misconduct

§672.1 Interference With Witness Examination and Improper Comments§672.2 Allowing Jurors to Question Witnesses§672.3 Judicial Misconduct During Jury Deliberations

§680 Making a Persuasive Closing Argument§681 Sample Closing Arguments Using Anecdotes, Analogies and Metaphors§682 Closing Arguments: Attacking the Prosecution’s Machine§683 Guiding the Jury to Reasonable Doubt§684 Dealing With the Refusal in Closing Argument

§690 How to Draft Effective Jury Instructions§691 The Importance of the Instructions§692 Instructions on Specific Issues

§692.1 Chemical Tests§692.2 Lesser Included Offenses§692.3 Coordination and Admissions§692.4 Degree of Impairment§692.5 Elements of the Offense§692.6 Defendant’s Opinion§692.7 Non-Compliance With Regulations§692.8 Refusal to Submit to Chemical Test§692.9 Circumstantial Evidence§692.10 Reasonable Doubt§692.11 Defendant Entitled to Entrapment Instruction


(Rev. 29, 4/13)

See the CD for Related FormsForm 6-1 Client Letter re: TrialForm 6-2 Motion for Individual Voir Dire; Proposed Voir Dire QuestionsForm 6-3 Jury Questionnaire

CHAPTER 7 POST-TRIAL§700 In General

§701 Ineffective Assistance of Counsel§701.1 Withdrawal of Plea

§702 Defending Against Legal Malpractice Claims§702.1 Ineffective Assistance of Counsel Requires Actual Showing of Prejudice, Not Only

Incompetence§702.2 Failure to Timely File Notice of Appeal Constitutes Ineffective Assistance of Counsel

§710 Sentencing Considerations§711 Sentencing Guidelines

§711.1 Blakely and Drunk Driving Defense§711.1.1 Aggravating Factors Must Be Proved Beyond a Reasonable Doubt

§711.2 The Right to a Jury Determination as to the Number of Prior Convictions May BeWaived

§711.3 DUI Is a Crime of Violence Under Federal Sentencing Guidelines§712 Probation Reports§713 Pre-Sentencing Memorandum§714 Sentencing Hearing

§714.1 MADD Representative May Testify at Defendant’s Sentencing Hearing§714.2 Greater Sentence May Not Be Imposed in Defendant’s Absence§714.3 Defendant Has Right to Appear at Sentencing Absent Valid Waiver

§715 Restitution§715.1 Restitution Hearing Is a “Critical Stage” in the Proceedings Requiring Presence of

Counsel§720 Sentencing Alternatives

§721 Diversion Programs§722 Alcohol Counseling

§722.1 The Timing of Alcohol Counseling§723 Technological Advancements in Sentencing Alternatives§724 Suggest Tailor Made Sentences§725 [Reserved]§726 Using Time Served to Reduce Sentences

§726.1 Defendant Entitled to Credit for “Time Served” for Treatment Program§727 Using the DSM-IV for Sentencing Purposes

§730 Constitutional Problems§731 Eighth Amendment Problems: Cruel and Unusual Punishment§732 Multiple Punishments§733 Enhanced Violations

§733.1 Defendant Cannot Collaterally Attack Drunk Driving Conviction Used for SentenceEnhancement

§733.2 Conviction of Prior Offense Not Required for Sentence Enhancement§734 Separation of Powers§735 Improper Probation Conditions

§735.1 Forfeitures§735.2 Improperly Promulgated Rehabilitation Program§735.3 Improper Restitution Requirement§735.4 Alcoholics Anonymous Programs§735.5 Electronic Monitoring


§735.6 Attacking the Seizure and Forfeiture of Drunk Drivers’ Vehicles§735.7 Court Upholds Forfeiture Law Against Preemption Argument§735.8 Probation Condition Requiring Abstention From Alcohol Upheld

§736 Mandatory Sentencing and Equal Protection§737 Drunk Driving as “Crime of Violence” Under Sentencing Guidelines

§737.1 Fifth Circuit Court of Appeals Takes a Different View§738 Ex Post Facto Concerns

§740 Probation Violation Hearings§741 Advocacy in Probation Violation Hearings

§741.1 Trying the Probation Violation Case§750 Appellate Issues and Effective Brief Writing in the Drunk Driving Trial

See the CD for Related FormsForm 7-1 Motion for New TrialForm 7-2 Motion for New Trial (Improper Exclusion of Expert Testimony)Form 7-3 Motion for Reduction in Sentencing or Alternative Sentencing; Memorandum in Support

CHAPTER 8 ADMINISTRATIVE HEARINGS§800 In General§810 Implied Consent Hearings§820 Refusal to Submit to Test

§821 Forms of Refusal§822 Reasonable Refusal

§822.1 Ingestion of Medicine as Refusal§822.2 Other Medical Grounds for Refusal

§822.2.1 Inability to Provide Urine Sample Sufficient to Support Refusal§822.3 Defendants May Assert Fifth Amendment Privilege Against Self-Incrimination When

Requested to Testify Regarding Ability to Pay for Independent Test§822.4 Refusal and Fear of AIDS

§822.4.1 Driver’s Fear of Needles Excuses Refusal to Submit to Chemical Test§822.4.2 Driver Failed to Meet Burden of Showing That Fear of Invasive Procedures

Rendered Him Incapable of Making Knowing and Conscious Refusal§822.5 Motorist’s Attempt to Assert Right to Independent Testing Does Not Constitute Refusal§822.6 State’s Implied Consent Warning Containing Misleading Information Cannot Be Used

Against Non-Resident§822.6.1 Implied Consent Law Satisfied Where Motorist Was Read Two Different

Implied Consent Warnings at Same Time§822.7 Insufficient Breath Sample Does Not Per Se Amount to Refusal to Submit to Chemical

Test§822.8 Refusal to Be Tested Can Be Grounds to Suppress Chemical Test Results§822.9 Mental Illness Does Not Excuse Refusal to Submit to Chemical Test§822.10 Officer Had Right to Choose Type of Chemical Test for Motorist

§823 Rescinding and Curing Refusals§824 The Right to Seek Counsel

§824.1 Right to Counsel at Administrative License Suspension Hearings§824.2 Defendant Entitled to Qualified Sign Interpreter

§825 Confusion as a Defense§825.1 Decisions Address Confusion to Defendant§825.2 O’Connell Warnings Not Required Where Motorist Intentionally Fails to Supply

Adequate Breath Sample


(Rev. 29, 4/13)

§826 Silence and Miranda§827 Intoxication Invalidated Refusal§828 Implied Consent Requirements Need Not Be Met to Sustain DWI Conviction§829 Miscellaneous Defenses

§829.1 Refusal to Sign Waiver of Hospital Liability§829.2 Belligerence Does Not Always Justify “Refusal” Charge

§829.2.1 “Futility” Does Not Excuse Statutory Compliance§829.3 No Refusal to Submit to Chemical Test Where Driver Was Simply Uncooperative§829.4 Refusal of Blood Test Was Not “Chemical Test” Refusal§829.5 Defendant Did Not Refuse Breath Test When He Failed to Provide Adequate Sample

§829.5.1 Driver Bears Burden of Showing Inability to Take Breath Test§829.6 Parental Consent and Chemical Testing§829.7 Valid Search Warrant Does Not Trump Statutory Prohibition on Chemical Test Results§829.8 Implied Consent Statute Requiring Chemical Testing of Operator Involved in Traffic

Accident Resulting in Serious Injury or Death Held Unconstitutional§829.8.1 Police Failed to Make Reasonable Effort to Convey Implied Consent

Warnings Based on Language Barriers§830 Admissibility of Fact of Refusal

§830.1 Defendant’s Sixth Amendment Right to Counsel Not Triggered by Request forChemical Test

§831 Other Challenges to Admissibility§831.1 Incomplete Warning Precludes Use of Refusal as Evidence§831.2 Defendant’s Refusal to Submit to a Chemical Test Suppressed Based on Tardy Implied

Consent Warnings§832 Admissibility of Refusal to Submit to Field Sobriety Test§833 Refusal on Fifth Amendment Grounds§834 State Constitutional Rule Barring Admission of Evidence of Refusal to Submit to Field Sobriety

Test Is Not Limited to Explicit Refusals§835 Exclusionary Rule Does Not Apply in Administrative Refusal Hearing§836 Retroactive Application of Statutory Amendment to Allow Admission of Defendant’s Refusal to

Take Breath Test Did Not Violate Right Against Self-Incrimination §837 Dealing With the Refusal at Trial

§840 Administrative License Suspension Hearings§841 Administrative Suspension Hearings: Stop-and-Snatch Laws

§841.1 Investigation and Discovery in the Administrative Hearing§842 ABA License Revocation Recommendations§843 Constitutionality of License Revocation Challenged§844 Other License Suspension Hearings

§844.1 Circumstantial Evidence of Intoxication Insufficient to Support Pre-Trial Suppressionof Driver’s Operator’s Permit Under California’s Administrative Per Se Law

§845 Court Upholds Suspensions Without Hearing§846 Laboratory Printouts Are Admissible in Administrative Suspension Hearings

§846.1 Field Sobriety Test Evidence Admissibility Governed by APA and Not Code ofEvidence in Administrative License Hearing

§847 Statutes Must Be Substantially Similar for Purposes of Driver’s License Compact§847.1 DMV Suspension of Driver’s License Pursuant to Driver’s License Compact Upheld§847.2 Administrative License Suspension Is Not a Suspension for Violation of Drunk Driving

Laws Requiring a Mandatory 90-Day Jail Term§848 DMV Denied Motorist’s Procedural Due Process§849 State Must Prove by a Preponderance of the Evidence That the Defendant Was Operating the

Vehicle in Civil License Suspension Proceeding


§850 Immigration Hearings and Drunk Driving§851 Is Drunk Driving a Crime of Violence?§852 Leocal Decision Applies Retroactively§853 Aggravated Driving Under the Influence Qualified as “Crime of Moral Turpitude” for Which

Alien Could Be Removed

See the CD for Related FormsForm 8-1 Motorist’s Request for Administrative Review of Implied Consent Revocation

BIBLIOGRAPHY

TABLE OF CASES

INDEX