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CHAPTER 6: TRIAL OF DUI CASES
Page
I. TRIAL PREPARATION 6-4
A. Generally 6-4
B. Discovery 6-4
1. The prosecution must provide to the defense 6-4
2. The defense must provide to the prosecution 6-5
C. Obtaining Reports and Follow-up Investigation 6-5
1. The Arresting Officer's Report 6-5
2. List of Witnesses and Statements 6-5
3. A Copy of Any Crash Report 6-6
4. A Copy of the Chemical Test Report 6-6
5. Trial Documents 6-6
a. Breath/Intoxilyzer 6-7
b. Blood/Urine 6-7
6. Other Potential Evidence 6-8
a. Squad Car Video 6-8
b. Dispatch/911 Tape 6-8
c. Photographs 6-8
d. Mug Shots 6-8
e. Correctional Center/Jail Records 6-8
f. Booking Room Video 6-8
g. Criminal Convictions 6-9
D. Interview All Witnesses 6-9
E. Preparing Trial Presentation 6-9
F. Pre-trial Motions 6-10
II. VOIR DIRE (JURY SELECTION) 6-10
A. Generally 6-10
B. Procedure 6-10
1. Panel Selection and En Masse Selection Procedure 6-10
2. Individual Case Procedure 6-11
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D. Sample DUI Voir Dire 6-12
1. Introduction 6-12
2. General Questions for the Entire Prospective Jury Panel 6-13
a. Generally 6-13
b. Connection/Ideas About DUI Law 6-14
c. “Reasonable Doubt” Questions 6-16
3. Specific Questions 6-17
a. Biographical Questions 6-17
b. Individual Questions 6-17
4. Miscellaneous/Catch-all 6-18
III. OPENING STATEMENT 6-18
IV. ARRESTING OFFICER'S TESTIMONY 6-19
A. Direct Examination 6-19
B. Anticipated Cross-Examination 6-24
1. Explaining Defendant's Driving Behavior 6-24 a. Erratic Driving or Weaving 6-24
a. Erratic Driving or Weaving
b. Defendant's Failure to Stop Immediately 6-25
2. Explaining Defendant's Odor of an Alcoholic Beverage 6-25
3. Flushed Face/Bloodshot Eyes/Clothing and Grooming 6-26
4. Defendant's Lack of Balance 6-26
5. Difficulty (or Lack Thereof) in Finding Driver's License 6-27
a. No Difficulty 6-27
b. Difficulty 6-27
6. Field Sobriety Tests 6-28
a. Physical Tests 6-28
b. Eye Tests 6-28
(1) Pupil Reaction to Light 6-28
(2) Horizontal Gaze Nystagmus 6-29
c. Divided Attention Tests 6-29
7. Slurred Speech/Failure to Understand the Officer's Questions 6-29
V. CHEMICAL TEST OPERATOR 6-30
A. Intoxilyzer Operator/Direct Examination 6-30
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C. Cross-Examination of Chemical Evidence Testimony 6-34
1. Intoxilyzer Operator 6-34
2. Blood/Urine Test Testimony 6-34
VI. MISCELLANEOUS TESTIMONY 6-34
A. Introduction 6-34
B. Melendez-Diaz/Confrontation Clause 6-34
C. Cross-Examination of Defendant 6-35
1. Erratic Driving 6-36
2. Activities Prior to Arrest 6-36
3. Physical Symptoms Observed by the Officer 6-36
4. Field Sobriety Tests 6-37
5. Admissions 6-37
6. Defendant's Feelings About State of Sobriety 6-37
7. Symptoms that Alcohol Usually Produces in the Defendant 6-37
D. Cross-Examination of Defendant's Witnesses (Family or Friends) 6-38
E. Cross-Examination of Defendant’s Witnesses (Bartenders) 6-41
F. Defense Experts 6-43
1. Generally 6-43
2. Not Under the Influence at .08% 6-43
VII. CLOSING ARGUMENT 6-44
VIII. JURY INSTRUCTIONS 6-46
6-4 I. TRIAL PREPARATION
A. Generally
The trial of a DUI case is perhaps the most difficult of all cases to try and therefore requires, at least initially, much trial preparation. Although a prosecutor may often only present a DUI case with one or two witnesses, to understand their testimony and effectively communicate to the trier of fact, the prosecutor must understand, at least generally, principles of alcohol chemistry and the chemical testing process. A prosecutor who fails to understand these principles, fails to interview witnesses concerning their testimony including chain of custody or chemical test foundation, or fails to understand DUI statutory law and judicial decisions will often be the losing party.
Chapter 4 of this manual concerning alcohol chemistry and chemical test operation should be read and consulted before each DUI trial until a working knowledge of these principles is mastered. Similarly, the prosecutor must be aware of the foundational requirements necessary for chemical test introduction as established by statute and interpreted by the North Dakota Supreme Court. See N.D.C.C. § 39-20-07.
B. Discovery
Discovery obligations are generally governed by Rule 16 of the North Dakota Rules of Criminal Procedure. Below is a summary of the rule, but Rule 16 should be reviewed in detail to confirm compliance. Discovery violations can result in the prosecutor’s case being limited or dismissed all together. See City of Grand Forks v. Ramstad, 2003 ND 41, 658 N.W.2d 731; State v.
Blunt, 2011 ND 127, 799 N.W.2d 263. See also Disciplinary Board v. Feland, 2012 ND 174, 820
N.W.2d 672.
1. The prosecution must provide to the defense
● Statements of the defendant including the following:
● Written or recorded statements in the care, custody, or control of the prosecutor, and that the prosecutor knows or should know exists;
● Defendant’s grand jury testimony; and
● Oral statements made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent.
● Defendant’s prior criminal record.
● Documents and objects (photos, data, etc.) within the care, custody, and control of the prosecutor if it is any of the following:
● Material to the defense preparation;
● The prosecution will use it for its case-in-chief; or ● The item belonged to the defendant.
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● Reports of mental or physical exams if the following apply:
● The item is in the care, custody, or control of the prosecutor and the prosecutor knows or could know it exists;
● The material is relevant to the defense’s preparation; and ● The prosecution will use it for its case-in-chief.
● Expert witnesses.
2. The defense must provide to the prosecution
● The prosecutor should always send a reciprocal discovery request to the defense. The defendant is then obligated to provide the prosecutor with similar discovery.
The defense is usually given more latitude in reference to potential discovery violations. The prosecution should always object for appeal purposes but it is unlikely the court will limit the defense’s ability to fully represent his client.
C. Obtaining Reports and Follow-up Investigation
The prosecutor should obtain the following information prior to trial: 1. The Arresting Officer's Report
This should include information regarding the defendant's driving behavior, if applicable, the defendant’s signs of impairment, the results of any physical or field sobriety tests, any statements made by the defendant, the results of any preliminary breath test, and information regarding the chemical testing. Although much significance is placed upon a chemical test in a DUI case, the physical signs of intoxication are also extremely important and often necessary to obtain a conviction, especially if a good defense attorney has effectively attacked the reliability of the chemical test. Numerous resources, including the National Highway Traffic Safety Administration’s DWI Detection and Standardized Field Sobriety Testing Manual should be provided to police officers and consulted for adequate report preparation.
If all of this information is contained in the officer's report, the defense attorney will be less likely to impeach the officer's testimony at trial. If, however, the officer includes general statements in his report, the prosecutor is unable to adequately prepare for trial and the defense attorney will also attempt to attack the officer insinuating he has “manufactured” this evidence after the case has gone to trial. See, e.g., State v. Shipton, 339 N.W.2d 87 (N.D. 1983).
2. List of Witnesses and Statements
If the police officer did not directly observe the defendant's driving behavior, a list of witnesses and their statements should be obtained concerning their observations of the defendant's driving. This becomes particularly important for proving the .08% per se violation which requires
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the chemical test to be conducted within two hours of driving. If there are no witnesses, it is necessary to have circumstantial evidence by which it can be concluded the defendant was driving.
3. A Copy of Any Crash Report
Oftentimes police officers arrest impaired drivers following a motor vehicle crash. The crash report will provide the prosecutor with additional information regarding the driving behavior, as well as data that will not necessarily be included in the DUI report. When investigating an accident involving a DUI investigation, it is important for the officer to determine the time of the accident. This is essential in order to prove the chemical test was administered within two hours of the driving.
4. A Copy of the Chemical Test Report
A copy of the chemical test report, if administered, must be provided and reviewed by the prosecutor. The officer should include information regarding the testing process in his or her report. If an Intoxilyzer test is given and the operator is not the arresting officer, the operator should be encouraged to observe the defendant for signs of impairment and prepare a report of these observations. If a blood sample is used, the arresting officer should ensure that the prosecutor obtains copies of all relevant blood test forms that should include the medical technician’s (person drawing the blood) name, time of test, and the checklist. If the technician fails to write his qualifications on the submission form, this individual will need to be included on your witness list so that the results are not excluded at trial.
5. Trial Documents
In order to enter chemical test results into evidence without testimony from the analysts at the state lab, the legislature has created a “short-cut” method that is codified in N.D.C.C. § 39-20-07. This rule makes it clear that:
The results of the chemical analysis must be received into evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the director of the state crime laboratory or the director’s designee, and by an individual possessing a certificate of qualification to administer the test issued by the director of the state crime laboratory or the director’s designee.
N.D.C.C. § 39-20-07(5).
The documents necessary to provide the foundation for the chemical test results are available on the Crime Lab page of the Attorney General website at www.ag.state.nd.us. These documents are admissible pursuant to N.D.C.C. § 39-20-07(7). If the proper foundation is
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provided, a certified copy of the test results is admissible pursuant to N.D.C.C. § 39-20-07(8). At a minimum, the following documents are needed:
a. Breath/Intoxilyzer
● Appointment of State Toxicologist;
● Memo Regarding Designees of the State Crime Laboratory Director; ● Approved Method to Conduct Breath Tests with the Intoxilyzer; ● List of Approved Chemical Testing Devices;
● List of Certified Chemical Test Operators; ● Ethanol Breath Standard Analytical Report; and ● Form 106-I8000 (test record).
b. Blood/Urine – the documents needed depend on whether it is an alcohol or drug case. Please note that not all of these forms were available on the website at the time of updating this manual but can be made available by contacting the state lab directly.
● Appointment of State Toxicologist;
● Memo Regarding Designees of the State Crime Laboratory Director; ● Approved Method to Conduct Blood Alcohol Analysis or a Drug
Screening Standard Operating Procedures;
● Approved Designations of Individuals Medically Qualified to Draw Blood;
● Submission for Blood (104) or Submission for Urines (104-U);
● List of Approved Chemical Testing Devices or List of Approved Drug Screening Analysis Instruments;
● List of Individuals Certified to Conduct Blood Alcohol Analysis or List of Individuals Certified to Conduct Drug Screening Analysis; ● Blood Test Checklist or Urine Test Checklist; and
● Crime Laboratory Analytical Report.
Since the U.S. Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), the constitutionality of this short-cut method is being challenged. The North Dakota Supreme Court responded by amending North Dakota Rule of Evidence 707 to give defendants the opportunity to demand the presence of the lab analysts at trial for cross-examination purposes. This is creating uncertainty and confusion regarding admissibility of the chemical analysis reports. Recent cases are helping clarify this area of law but more developments are expected. See State ex
rel. Madden v. Rustad, 2012 ND 242; State ex rel. Roseland v. Herauf, 2012 ND 151, 819 N.W.2d
546; State v. Lutz, 2012 ND 156, 820 N.W.2d 111.
In further response to these evidentiary problems, the North Dakota Legislature amended N.D.C.C. § 39-20-07(10) to allow a law enforcement officer to establish foundation for a blood test. As long as the officer observed the blood sample be collected, the officer can testify to compliance with the approved method. The hopeful intent is to alleviate the necessity of calling the blood collector to testify at trial. It is not clear how the Court will reconcile this with Rule707 of the
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North Dakota Rules of Evidence. Compare State v. Friedt, 2007 ND 108, 735 N.W.2d 848 to State
v. Lutz, 2012 ND 156, 820 N.W.2d 111.
6. Other Potential Evidence
a. Squad Car Video
The prosecutor should request squad car videos in all DUI cases, if available. This includes videos that may have been secured while at the scene of the investigation. These videos capture driving; physical signs of impairment such as balance problems, field sobriety tests, speech patterns; and sometimes even contain admissions made inside or outside the officer’s hearing.
b. Dispatch/911 Tape
Dispatch tapes will sometimes provide the name and number of the reporting party. This can be helpful when providing testimony regarding the driving or establishing the time of an accident. Additionally, dispatch tapes can assist when dealing with Fourth Amendment issues regarding stops based on anonymous tips. Recent legislation protects the release of 911 recordings but it is believed they are still discoverable material.
c. Photographs
Visual aids help keep the jury’s attention. A photograph showing road conditions can be helpful to dispel arguments regarding driving behavior or performance on field sobriety tests. Photographs of accident scenes are also helpful to establish driving behavior.
d. Mug Shots
The booking room photo of the defendant could corroborate the officer’s testimony regarding such things as bloodshot or watery eyes or a disheveled appearance.
e. Correctional Center/Jail Records
These records sometimes contain admissions regarding drug or alcohol use. The documents may record possession of keys to help prove the operability of a motor vehicle in an APC case or show the defendant was able to make phone calls to secure an independent chemical test. Some facilities also have video recordings which should be requested and disclosed to the defense. These videos can show signs of impairment or a subject’s behavior during chemical testing.
f. Booking Room Video
These videos help confirm an officer followed the approved method when administering a chemical test. They also provide additional evidence regarding a defendant’s appearance, balance, speech patterns, etc.
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g. Criminal Convictions
It can be helpful to run a criminal history check of all potential witnesses. This can assist in determining whether testimony will be deemed credible or may be useful to impeach a witness.
D. Interview all Witnesses
All witnesses, including police officers, should be interviewed in advance of trial. All witnesses should be advised (lay witnesses in more detail) of basic courtroom decorum and procedure, the prosecutor's likely questions, and anticipated cross-examination. Because a DUI case depends to a great extent upon the arresting officer, the officer should be advised of the importance of the officer’s testimony and background. The officer should be able to explain in detail his qualifications, training, and experience to the trier of fact. The prosecutor should have a copy of the officer's resume or training records in the file to prompt the officer, if necessary.
An officer will often state in response to a prosecutor's general question concerning the officer's training and experience that he “has taken the basic courses necessary to become a law enforcement officer in this state.” Instead, prosecutors should emphasize basic training, the officer's educational background, the officer's rank, years of experience, and chemical testing training when appropriate. The witness should be able to explain in detail the subject matter of these various training seminars, especially in reference to DUI detection and field sobriety testing, and the continuous training that is necessary to become and remain a law enforcement officer in the state. Additionally, the witnesses should be advised of the following general principles:
a. To tell the truth;
b. If you didn't understand the question, ask to have it repeated or restated;
c. Avoid police talk, such as “subject vehicle,” “exited” car, “10-55", etc;
d. Be courteous and professional -- no faces or gestures when the defendant or other witnesses testify;
e. Do not volunteer answers and only answer the questions asked; f. Appropriate dress and courtroom decorum;
g. Talk to the trier of fact;
h. Speak loudly, clearly, and slowly; i. Not to argue with the attorneys; and
j. Explain the court reporter's function and the necessity to explain things clearly because the court reporter cannot record head nods and hand gestures or parties that are talking at the same time.
E. Preparing Trial Presentation
If you begin to try cases without adequate preparation, you are placing your credibility and that of your office in jeopardy. Specifics of voir dire, opening and closing statements, and other trial preparation matters are handled later in this chapter.
6-10 F. Pre-trial Motions
The majority of pre-trial motions in a DUI may be dispositive of the case. The remaining pre-trial motions are usually to suppress statements, exclude a chemical test, or address alleged discovery violations pursuant to Rule 16 of the North Dakota Rules of Criminal Procedure or the due process dictates of Brady v. Maryland, 373 U.S. 83 (1963). It is rare that a prosecutor will file a pre-trial motion. In most cases, the prosecutor is responding to issues raised by the defendant.
II. VOIR DIRE (JURY SELECTION) A. Generally
In state courts in North Dakota, attorneys are given great latitude in questioning potential jurors. The purpose of voir dire is to allow counsel to obtain information concerning prospective jurors that is necessary for the exercise of a challenge for cause and the intelligent exercise of peremptory challenges. Voir dire also presents a significant opportunity for the prosecutor to build rapport with the jury and to educate the jury regarding the facts of the case and the applicable law.
It is recommended that prosecutors photocopy and place all applicable statutes and rules concerning jury selection into the voir dire portion of a trial notebook that can be used in the prosecution of all criminal cases. In recent years, the information provided to prosecutors regarding potential juror information has been significantly limited. In many cases, a prosecutor will get a list of prospective jurors the night before trial which provides no address, date of birth, or even a middle name. Therefore, if “John Smith” or another common name is listed on the potential panel, a prosecutor may have a difficult time figuring out who that person is and what potential criminal record they may have. Prosecutors should talk to the district court clerks to determine what questionnaires, if any, will be used by the court and what information the parties will have prior to jury selection. This will help avoid asking the venire repetitive and unnecessary questions.
B. Procedure
1. Panel Selection and En Masse Selection Procedure
Prospective jurors are summoned pursuant to the Uniform Jury Selection and Service Act, N.D.C.C. ch. 27-09.1. It may not be necessary, however, to summon dozens of jurors to court to select a six-person jury for a misdemeanor DUI trial. The procedure in some counties is to call a large number of potential jurors to court and select several juries for cases to be tried at a later date. If this procedure is adopted, however, the court and the parties should conduct additional voir dire at the time of trial to determine if the jurors have had anything happen in the interim that would affect their ability to be fair and impartial jurors in the case. It is recommended that the “time lag” between jury selection and trial be as short as possible.
In State v. Hepper, 316 N.W.2d 338 (N.D. 1982), the North Dakota Supreme Court determined that the above-described method of selecting jurors did not constitute reversible error as
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long as there was no objection by the defendant on the date of jury selection and the court conducted additional voir dire prior to the trial commencing. In State v. Rummel, 326 N.W.2d 64 (N.D. 1982), the Court determined that a potential juror in a DUI case could be challenged for cause pursuant to N.D.C.C. § 29-17-36(5) if the juror previously served on a DUI case. Therefore, care should be used to insure that jurors serve in only one DUI case absent a specific waiver by the defendant.
2. Individual Case Procedure
The following procedure is typical for the jury selection process and is referenced in statute and rule.
a. Introduction by the judge;
b. Administration of the oath to jury panel to truthfully answer voir dire questions;
c. Voir dire by the judge -- judge may ask questions to establish the statutory challenges for cause;
d. Voir dire by defense -- thereafter defendant passes for cause (or exercises challenges);
e. Voir dire by prosecution -- thereafter prosecution passes for cause (or exercises challenges);
f. Alternate exercise of peremptory challenges with prosecution proceeding first;
1. Voir dire by defense of replacement jurors; 2. Voir dire by prosecution of replacement jurors.
See N.D.R.Crim.P. 24 and N.D.C.C. ch. 29-17.
Challenges for cause are routinely made orally in open court in the presence of the jury panel, whereas peremptory challenges are usually made in writing without the jury panel knowing which attorney is responsible for the challenge. If grounds for possible challenge for cause are disclosed during questioning, the prosecutor should consider the advisability of proceeding “in camera” to avoid tainting the entire jury panel or embarrassing the prospective juror. Additionally, if the challenge for cause is denied, you do not want to damage any rapport with the person if they end up being selected for that jury. When opposing counsel challenges a juror for cause, the prosecutor may wish to rehabilitate the juror unless the grounds for challenge are well established or it is necessary to concur in the challenge to demonstrate fairness. A prosecutor should not challenge a prospective juror for cause until the juror is beyond rehabilitation.
C. General Considerations for the DUI Jury
Although it is impossible to select the “perfect” juror for any case, the prosecutor should evaluate his case to determine generally what type of juror would appear to be most appropriate. All jurors are “not created equal.”
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All potential jurors should be questioned concerning prior contact with the judicial system, either as a defendant, litigant, witness, or juror, or whether any family members or close friends have been similarly involved. If so involved, the juror should be questioned concerning their feelings, if any, about the criminal justice system or law enforcement, in general.
The prosecutor should evaluate the defendant carefully, considering age, economic background, social circumstances, education, appearance, and family status. The prosecutor should then try to determine which jurors would like the defendant, dislike the defendant, perhaps feel sympathy toward the defendant, or be neutral. The prosecutor must evaluate the state's witnesses with the same critical eye. The prosecutor should be cognizant of special problems, such as having a minister as a defendant, a pro se defendant, a defendant with special needs, etc. Potential jurors must be questioned concerning any preconceived ideas about the DUI laws and their attitude toward crime and punishment.
It is important to keep the defense attorney honest and not let him or her minimize the seriousness of the crime, minimize the importance of the law and the law's prohibition, or minimize the seriousness or importance of the DUI proceeding. The prosecutor should retain some formality and depersonalization. There are several general rules that may assist in determining which jurors would be most appropriate for a prosecutor's case: railroad men, construction workers, and farmers may want to be avoided in DUI cases; younger jurors who may be more cynical, likely to question scientific evidence, and less inclined to accept the testimony of an officer; and individuals who recently were charged with similar offenses. Obviously, all of these rules are subject to exceptions. A prosecutor should always be aware of the potential juror that appears strong enough to “hang a jury.” If those with strong, vocal opinions are not perceived as being a “prosecution juror,” he should be removed.
D. Sample DUI Voir Dire
Trial tactics or strategies differ from attorney to attorney. Nevertheless, without attempting an exhaustive list of questions, the following is a representative sample. If at all possible, the prosecutor's questions should be asked in such a fashion that they call for a narrative response by the prospective juror instead of a “yes” or “no” answer. It is extremely helpful to have the potential jurors talking to you without embarrassing them.
1. Introduction
May it please the court, counsel, ladies and gentlemen of the prospective jury panel. My name is ______ and I am an Assistant ________ County State's Attorney. I represent the citizens of _____ County and the State of North Dakota in the prosecution of this case. As the court has already informed you, this is a case of the State of North Dakota v. ___________ that involves a charge of driving under the influence of alcohol. The process of jury selection that we are presently involved in is entitled voir dire. That expression is two words, v-o-i-r and d-i-r-e whose literal translation means “to see and to speak.” Essentially, that is lawyer talk for jury selection. Defense counsel has already asked you several questions both individually and as a group and it is my intention to ask you some similar questions. The purpose of voir dire or jury selection is to select a
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fair and impartial jury for both the state and the defendant. Systems for deciding guilt or innocence vary throughout the world. There are countries today in which to determine right from wrong or guilty from innocent, the court or judicial officer in charge has each party light a candle of equal length and after a specified period of time, the person with the longest candle wins the dispute. Similarly, there are also countries today in which guilt or innocence is determined by squirting lime juice on two shellfish and observing how the shellfish squirm to determine guilt or innocence. In this country, the system of deciding guilt or innocence is far different because the issue is determined by a jury of one's peers, the selection of which is the process that you are a part of this morning.
The jury system itself, however, has an interesting evolution. Several years ago, in fact several centuries ago, the jury system was far different than it is at this time. Historically, a jury was selected from those jurors that had knowledge about the case, perhaps knowledge about the parties, or perhaps even a witness to the crime. Throughout the years it was determined that such jurors did not always give a fair trial to both the prosecution and the defendant and it was preferred that jurors be selected that have no knowledge about the case, no preconceived notion about the crime, and, instead be completely objective, impartial, and unbiased.
Because of that requirement, the process of voir dire or jury selection was instituted to allow the court and the parties to determine your qualifications to be a juror on this particular case. It is not our intention to pry into your personal affairs but to determine your qualifications, knowledge of the case and parties, your feelings about the crime in question in this case, and about the criminal justice system generally. As the court has already instructed you, it is the function of the jury in a criminal case to try disputed questions of fact and after determining what the facts are, to apply them to the law as the judge will instruct you.
I realize the courtroom is a very awkward environment for you but I wish to encourage all of you to feel free to interrupt and ask questions if you do not understand my questions or if you feel you may have some information that may be relevant to this process. I would prefer to be able to conduct this voir dire process in your living room over a cup of coffee, but the county commissioners and court would probably frown upon that suggestion.
2. General Questions for the Entire Prospective Jury Panel a. Generally
I would like to first ask several questions of the entire panel as a group. I would ask that you please respond by raising your hand or otherwise notifying me if the question pertains to you.
● Does anybody on the prospective jury panel know the defendant -- or the defendant's family? (This may require the prosecutor to be more specific as to where the defendant is from, etc.).
● Is anybody on the prospective jury panel related to, have any business dealings with, or know the defendant's attorney or members of his law firm,
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or any employees of his law firm? (The prosecutor may wish to name the attorneys and employees if known).
● Is anybody on the prospective jury panel familiar with me, or with any of the attorneys or employees of the __________________ County State's Attorney's Office? (The prosecutor may wish to name the staff).
● The State has prepared a list of potential witnesses in this case. I emphasize the word potential because not all of these witnesses may be called. Is anybody on the prospective jury panel familiar with any of the following potential witnesses?
● Has anybody on the prospective jury panel heard anything about this case? ● Is anybody on the prospective jury panel, spouse, or close member of your
family ever been involved in the criminal justice system as an accused? A victim or complainant? Or a witness?
● If yes, was this matter handled satisfactorily? Because of this experience, do you have any negative feelings toward prosecutors? The judicial system? Law enforcement?
(For those that indicate they may have been involved in the criminal justice system, the prosecutor should determine in what capacity and if as a defendant, may wish to consider voir dire in camera, but in any event should determine if the charge was for DUI).
● Has anybody on the prospective jury panel been selected to be a juror before? What type of case?
● Has anybody on the prospective jury panel been a juror on a DUI case in the past or which will be tried later this term?
● Is anybody on the prospective jury panel related to or close friends with anybody in law enforcement?
Depending on your jurisdiction and the judge presiding in the case, many of these questions may be covered by the court. It is important to take note of their answers and follow up with the individual prospective juror as may be needed.
b. Connection/Ideas About DUI Law
The defendant in this case is charged with the offense of driving under the influence of alcohol. The definition of what constitutes “under the influence of alcohol” is obviously a critical one to the determination of whether this defendant is guilty as charged. The court will later instruct
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you that the law in this state essentially defines “under the influence of alcohol” as a person who, as a result of alcohol, does not have that “clearness of intellect and control that he or she would normally possess.” In other words, the law in the State of North Dakota does not require that a person be drunk. The law in this state also does not require that a person exhibit any driving deficiency as a result of the drinking of alcohol. Nor does the law in this state require that the defendant be falling down, stumbling, intoxicated. Does anybody on the prospective jury panel disagree with the law in this state that the state must prove that the defendant is “under the influence,” not intoxicated? Would everybody on this jury panel be willing to put out of your mind any preconceived notions that you may have concerning the charge of driving under the influence and decide this case based upon the facts that you hear and the law as the court instructs you? (The prosecutor may wish to explain the “per se” law, as well, during this introduction to the law in a DUI case).
● Does anybody on the prospective jury panel disagree with the DUI law in this state?
● Does everybody on this prospective jury panel agree that the DUI laws have an important function?
● If it has been established to your satisfaction, pursuant to law, that the defendant is guilty of the charge of DUI, would any of you have any reservation whatsoever about finding him guilty?
● Do you agree you would have a responsibility and obligation to find the defendant guilty if the essential elements of the crime have been proven beyond a reasonable doubt?
● Has anybody on the prospective jury panel ever had the occasion to offer to drive someone home that you felt had too much to drink? What were the circumstances? What was essentially the reason for your offered to drive them home? (This essentially underscores the importance of the DUI law). ● Did the person agree he was under the influence and readily agree to give
you the keys to his car?
● Do you agree that people under the influence of alcohol or other drugs often are the last to realize it?
● What were some of the signs or facts that you observed about this person that made you feel he was under the influence?
● Isn't it true that it is sometimes hard to articulate these signs but there is no question in your mind the person was under the influence when you saw him?
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If the Defendant is charged with APC instead of DUI, make sure to vet potential jurors on sympathies toward this charge. While DUIs receive a lot of attention, the APC charge is difficult because some members of the public may think its “no big deal” or that the Defendant was “doing the right thing” by sleeping it off in a vehicle instead of driving. It is important to tailor the above questions to an APC offense, and imperative that the prosecutor asks the potential jurors about their beliefs or experiences regarding this offense.
c. “Reasonable Doubt” Questions
The burden to prove someone has committed a crime is upon the prosecution. Furthermore, the defendant is presumed to be innocent and until and unless the prosecution proves to the contrary, it is your obligation and responsibility to find the defendant not guilty.
The test that the State must satisfy to prove that the defendant is guilty is called “proof beyond a reasonable doubt.” The defense attorney has already referred to that burden and you will no doubt hear it several more times before your responsibility as a juror is over. The judge will later be giving you a definition of what “beyond a reasonable doubt” means but I wish to ask all of you, generally, if you would be willing to follow the court's instruction as to what is a “reasonable doubt” and not hold the prosecution to a higher burden and make us prove this charge “beyond all possible doubt” or “beyond a shadow of a doubt.” Would anybody on this prospective jury panel hold the State to a higher standard than what the law requires?
The court will also instruct you that the burden of proof applies to every essential element of the crime which in this case essentially is (1) driving a motor vehicle (or being in actual physical control of a motor vehicle), (2) on a roadway, and (3) while under the influence of intoxicating liquor. The prosecution does not have an obligation to prove every fact in this case beyond a reasonable doubt, such as, the color of a car, the weather, the type of clothing. Does everybody see the distinction between essential elements and collateral facts? Would anybody on the jury panel require the state to prove every collateral fact beyond a reasonable doubt?
The prosecution also has no obligation to call every possible witness or introduce every possible exhibit in a criminal case. Many items may be redundant and may be unnecessary to prove the case. Our obligation is to satisfy you, beyond a reasonable doubt, that the crime charged has been committed. For example, if there was a crime committed on the 50 yard line at the Super Bowl, the prosecutor in that jurisdiction would obviously not have to call all 90,000 fans in the stadium to prove the crime. Does anybody on this prospective jury panel disagree with the concept that the State does not have to necessarily produce all witnesses or all exhibits to meet its burden?
There may be two different versions of facts presented to you from this witness chair. The fact that two different versions of the facts are presented does not necessarily create a reasonable doubt necessitating the defendant be found not guilty. If that were the case, in every criminal case as a prosecutor all I would have to do is contact the defense attorney and ask him if his version of the facts were the same as mine, and if not, I would have to dismiss the case. It will be your obligation to determine which facts are credible and reliable. The fact that there may be conflicting
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stories in and of itself, does not necessarily create a reasonable doubt. Does anybody on the prospective jury panel disagree with this general concept?
3. Specific Questions
a. Biographical Questions
Many of these questions will have been asked by the defense attorney or could perhaps be found through juror qualification lists or independent research, but a prosecutor should be aware of at least the following general biographical information for each juror:
● Name, address, occupation, length employed, duties and responsibilities; ● Marital status, number of family members, age of children, children’s
occupations;
● Own your own home, length of time in the community; ● Spouse’s name and occupation;
● Prior jobs and educational background; ● Hobbies and pastimes; and
● Organizations memberships. b. Individual Questions
A prosecutor may wish to ask jurors individually the following questions:
● If the facts in this case show that the defendant is guilty of the crime of DUI beyond a reasonable doubt, would you find the defendant guilty?
● Would you hesitate to bring in a verdict because of sympathy or concern about what the defendant's sentence might be?
● Do you understand that the question of sentencing or punishment is not a question for the jury, but for the judge?
● There is going to be a lot of discussion in this case concerning the instrument, an Intoxilyzer, used to determine the amount of alcohol in the defendant’s blood. The law in this state provides that if a person has a blood alcohol of .08% or greater, he is guilty of a crime. To determine defendant’s blood alcohol level, law enforcement officers use this instrument. The law in this state provides, and the judge will later instruct you if you are selected to be a
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juror, that test results from this instrument are evidence if the test is shown to be fairly administered. Would you be willing to accept the results of the instrument and the testimony of the Intoxilyzer operator as you would any other piece of evidence?
● The defense attorney has already asked you and other members of this prospective jury panel if you would find a police officer more or less credible because he is a police officer. I certainly wouldn't expect you, or any other juror, to give more deference to someone's testimony merely because he wears a uniform. In determining the credible facts in this case, however, would you also consider the officer's training, experience, and expertise? ● Have you, a family member, or close personal friend ever been injured as a
result of someone driving under the influence? 4. Miscellaneous/Catch-all
The following questions may also be helpful in getting prospective jurors to open up and provide information not specifically asked:
● Is there any reason that any of you cannot be a fair and impartial juror in this case for both the State and the defendant?
● Is there any reason why anyone on this prospective jury panel cannot give this case your full and undivided attention for the time necessary to complete it? ● It is anticipated this case will last no more than one or two days. Do any of
you have a conflict with the scheduled court date?
Thank you for your attention and cooperation in answering these questions. Your Honor the State would pass for cause.
If a challenge for cause is necessary, ask to approach the bench to discuss the matter outside the hearing of the venire, if possible. This will avoid embarrassing a potential juror or damaging your rapport with the panel.
III. OPENING STATEMENT
The opening statement in any criminal case should never be waived and should consist of a succinct statement of the facts and issues to be proved. The prosecutor should never overstate the evidence or comment on evidence that is of questionable admissibility. Furthermore, the prosecutor should be conversant with the facts and details of the case so a minimum of notes is necessary. The opening statement is most effective when delivered in a narrative and interesting fashion and not
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simply outlining what the witnesses will say, for example, “Officer Johnson will say the evidence shows the following. . .” The prosecutor may wish to explain to the jury in the opening statement what the certified copies are for and ask for their patience during their admission into evidence.
The prosecutor should have a standard closing sentence to the opening statement to avoid a flat finish. For example the prosecutor could state “At the close of the case I will return before you and ask that you find the defendant guilty as charged of the offense of driving under the influence.”
Be sure to listen carefully to the defense’s opening statement. This can provide clues as to the defense’s strategy and help you anticipate where the case may go and what facts to stress with the witnesses.
IV. ARRESTING OFFICER'S TESTIMONY A. Direct Examination
Testimony of the arresting officer usually covers five major areas: 1. The officer's qualifications;
2. The reasons why the officer stopped the defendant;
3. The basis for the officer's decision to arrest the defendant for driving under the influence;
4. The basic elements of the DUI offense; and
a. Driving (or actual physical control of) a motor vehicle;
b. On a highway or public or private area to which the public has right of access; and
c. While “under the influence” or with a blood alcohol concentration of .08% or greater.
5. The officer’s opinion, based on training and experience, whether the defendant was under the influence of an alcoholic beverage or controlled substance.
The following outline of questions for direct examination is not suggested as a template for use in all DUI cases but merely as an example. Obviously, each fact situation dictates what questions should be asked. For other examples of predicate questions in DUI and other cases, contact the National District Attorneys Association at 99 Canal Center Plaza, Suite 330, Alexandria, Virginia 22314, phone 703-549-9222, and fax 703-836-3195.
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● What is your name and occupation? How long have you been a law enforcement officer?
● Please state your training, experience, and educational background to qualify you for your present position.
● What is your present rank?
● Were you on duty on (date of offense) of this year?
● Calling your attention to that day/night and specifically (time of offense), where were you?
● Did you observe anything out of the ordinary?
● Will you describe the car that you observed at that time? ● Where did you observe this car?
● Is this location in ____________County/City?
● Do you recognize the driver of the car in this courtroom now?
● Would you point him out, please? Please have the record reflect the witness pointed to the defendant.
● Will you relate the incident to the folks on the jury, with particular description and attention to the defendant's driving.
● Where was your car in relation to the defendant’s car? ● Was there any other traffic present?
● Would you describe what else, if anything, you observed with regard to the defendant's driving?
● What was the speed of the defendant’s vehicle? ● Was the defendant driving in a normal manner?
● Did he cross the centerline? How many times did he cross it? ● Where was your car at this time?
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● Were you able to get the car stopped? How long did it take for the car to stop? ● What did you do to get the car to stop?
● Describe the position of the car when it was stopped.
● How much distance was covered between the time you first attempted to get the defendant to stop his car until that was finally accomplished?
● Did you ask the defendant to produce his license? Any problems with his coordination or dexterity?
● Did you smell any odor that you could identify? What was the odor? ● Did you have an occasion to talk with the defendant at the scene? ● Did you question the defendant?
● Did the Defendant admit to consuming any alcoholic beverages that evening? How many? What kind? What time did they have their last drink?
● Did the Defendant tell you where he was coming from? How long had the defendant been at that location?
● Will you describe the defendant’s speech for us?
● Did you ask the defendant to exit the car? Please describe how the driver exited the car.
● Did you observe the defendant walk? For what distance? ● Would you describe for the jury the way the defendant walked. ● How would you describe the defendant's balance?
● As you observed the defendant, did he appear injured in any way?
● Did you ask the defendant if he was hurt? What was the defendant’s reply, if any?
● Please describe the defendant’s appearance. ● Could you describe the defendant’s eyes? ● What was the state of the defendant’s clothing?
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● Was there anyone else at the scene besides you and the defendant? Who? ● Did you search the defendant's car? What did you find?
● Did you give the defendant a series of tests on this occasion?
(This is a strict yes or no answer. If no tests were given, then move ahead to the next relevant area of questioning. If tests were given, make sure to have the officer explain the difference between standardized and non-standardized field sobriety tests. Have the officer give a detailed explanation of how each test was administered, the defendant’s performance on the test, and the relevancy of the test results).
● What time did you administer these tests? ● What was the first test performed?
● Did you explain to the defendant how to perform this test?
● Did the defendant indicate he understood the instructions? Did he have any injuries, disabilities, or medical conditions that would prevent him from completing these tests?
● How did the defendant perform on this test?
NOTE: Do not ask any questions about the preliminary breath test (PBT) as it is not admissible at trial. Make sure to remind your law enforcement officer not to mention it during his testimony. The exception to this rule is when a defendant refuses to take the PBT. In that situation, the act of refusing is a criminal offense and evidence regarding failure to take the PBT is relevant and admissible. See N.D.C.C. § 39-08-01(1)(e)(3).
● What happened next? Did you place the defendant under arrest?
● Was the defendant read his Miranda rights? (Only if rights were given). ● Was the defendant handcuffed? How (front or back)? Why?
● Was the defendant transported to jail? By whom?
● Describe how the defendant exited the squad car when you arrived at the jail. ● Would you describe the way the defendant walked? How was his balance?
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● Did you ask any other questions at this time? ● What was the defendant’s answer?
● How many times did you pose the question before you got an answer?
● Did you ask whether the defendant used insulin, had diabetes, or recently used mouthwash, chewing tobacco, cigarettes, etc? What was the defendant’s response?
● What time was it?
● Were any other tests administered to help you determine whether the defendant was under the influence?
NOTE: The chemical testing questions must be tailored to address the steps unique to the different types of chemical testing.
● Where was the test administered? Who administered the test? When was the test administered?
● Who was present during the testing process?
● What procedure was followed? Did you notice anything unusual?
● Was the defendant in your custody continuously from the time of the car stop until this chemical test or was the defendant in your custody for at least 20 minutes prior to the test being given?
● Did the defendant have anything to eat, drink, or smoke during the 20 minute waiting period or otherwise place anything in his mouth?
● Have you, in your occupation as a law enforcement officer, had occasion to observe persons driving under the influence of intoxicating liquor?
● How often have you had this experience? Based upon this previous experience and from what you observed of the defendant's driving, speech, actions, and odor of an alcoholic beverage, do you have an opinion as to whether the defendant was under the influence of an alcoholic beverage to the extent his normal faculties were impaired? What is that opinion?
The arresting officer may also be the Intoxilyzer operator or a different officer may have administered the Intoxilyzer test. If it is a blood test case, the arresting officer must establish the
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necessary foundation and chain of custody for the blood sample. Therefore, you need to ask the appropriate questions of the witness based on their role in the investigation.
The toxicologist or lab analyst may be required to testify concerning the chemical test despite the “short cut” method provided in N.D.C.C. § 39-20-07. The foundation documents referenced in this statute are available on the Crime Lab page of the Attorney General’s website at www.ag.state.nd.us. Additionally, Rule 707 of the North Dakota Rules of Evidence requires the prosecutor to provide notice to the defense of the intention to use the chemical test results as an exhibit at trial. This rule allows the defense to demand the toxicologist or lab analyst to present at trial for purposes of cross-examination.
B. Anticipated Cross-Examination
Cross-examination of the arresting officer in a DUI case is only limited by the imagination of the defense attorney but some boilerplate questions are usually asked and your officer should be prepared to answer them.
The defense attorney will attempt to isolate each fact or circumstance upon which the arresting officer based his opinion that the defendant was under the influence and attempt to provide a rational explanation for each one. Other potential cross-examination questions can be found in many defense of DUI treatises including Richard Erwin's book entitled “Defense of Drunk Driving Cases,” which is standard reading in most DUI defense attorneys' libraries, and a four volume set by Donald H. Nichols entitled “Drinking/Driving Litigation” (2006).
1. Explaining Defendant's Driving Behavior
The goal of the defense attorney is to minimize the impact of the stop as an indicator of impairment. By providing innocent explanations for the driving behavior, the defense attorney is neutralizing the relevance of the stop.
a. Erratic Driving or Weaving
The defense will emphasize that weaving, especially within one’s own lane of traffic, is commonplace. Even if driving is more aggravated, the defense will emphasize road conditions, driver's inattentiveness or distractions, or mechanical problems with the defendant's car. This cross-examination usually concludes with the following series of questions:
Q: Did the defendant's driving interfere with any other car on the road?
Q: During your employment, you have been assigned to traffic enforcement, haven't you?
Q: You have written many tickets to people for careless driving or other minor traffic violations who have been neither drunk nor under the influence of alcohol, haven't you?
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Q: You would not say the mere fact the defendant committed a traffic violation would be a sufficient fact to base your opinion that he was under the influence, would you?
b. Defendant's Failure to Stop Immediately
The defense may argue the defendant assumed the officer was following someone else, emphasize road conditions, weather, or that the officer perhaps used lights without the siren.
Q: How far was your car from the defendant's when you first turned on your overhead lights?
Q: Was defendant's window up or down?
Q: Do you know whether defendant's radio was on in the car when you first turned on your vehicle’s lights, siren, or honked your horn to get the driver's attention?
2. Explaining Defendant's Odor of an Alcoholic Beverage
The defense may try to emphasize that pure alcohol has little or no odor and the odor of the flavoring may not be indicative of the strength or amount of alcohol consumed. For example, beer is one of the least intoxicating alcoholic beverages but provides a strong odor. The defense will often establish that odor of an alcoholic beverage on one's breath is not determinative of when the alcohol was consumed. Finally, the defense may also attempt to attribute the odor to something other than alcohol:
Q: Officer, the first thing you noticed about the defendant was the strong odor of alcohol. Is that correct?
Q: Officer, did the odor smell like beer, wine, scotch, or vodka? A: I don't know.
Q: Officer, are you aware that pure alcohol does not have an odor, and the odor you smell on a person who has been drinking is caused by the flavorings added to the particular beverage consumed?
Q: In your experience, which person's breath would smell most of an alcoholic beverage: a person who had his or her last drink hours ago, or one who had his or her last drink within the last 10 minutes?
Q: Because the defendant's breath had a very strong smell of an alcoholic beverage, wouldn't you say that was consistent with his having had a drink very recently, say within 10 minutes of the time you stopped him?
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Q: Officer, alcohol does not have an immediate effect on the person consuming it, does it?
Q: In fact, isn’t it true that it may take 45 minutes to an hour for a person to obtain the maximum effect from the consumption of a given amount of alcohol?
3. Flushed Face/Bloodshot Eyes/Clothing and Grooming
The defense strategy here is to offer nonalcoholic reasons for the driver's physical signs of possible impairment. The defendant may offer an explanation of driving long distances, taking a nap, or accuse the officer of being elitist for judging the driver's appearance. In explaining his flushed face or bloodshot eyes, the defendant will usually explain that this is a normal condition or one caused by an emotional reaction to the situation. Further excuses for red eyes may include contact lenses, fatigue, hay fever, or exposure to smoke. The following is a list of likely questions:
Q: Officer, you stated that the defendant's face was flushed (or eyes bloodshot). Will you look carefully at him now and tell me whether it appears flushed at this time?
Q: Isn't it true that he appears the same as at the time of the arrest?
Q: In arriving at your opinion that the defendant was under the influence, you took into consideration the fact that defendant's face was flushed (eyes bloodshot), did you not?
Q: In fact, that was one of the main facts on which you based your opinion, was it not?
Q: Did the defendant appear to be nervous, excited, angry, or emotionally upset when you first talked to him?
Q: Isn't it true that there are many causes other than the consumption of alcohol that can cause a person's face to become flushed?
Q: You have seen persons whose faces were temporarily flushed who were not under the influence of alcohol, haven't you, officer?
4. Defendant's Lack of Balance
In explaining his lack of balance, the defendant will usually have a host of explanations: emotional strain of the police stop, condition of the arrest site, weather conditions, traffic distractions, physical or medical conditions, driving long distance, or high heeled shoes.
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Q: Officer, when defendant left his car, you say he swayed slightly?
Q: Isn't it true that he didn't fall, and it wasn't necessary for him to lean against anything in order to stand?
Q: And isn't it true, officer, that in every instance where you have made an arrest for drunk driving, you have testified that the driver found it necessary to lean against the car for support when he got out of it?
Q: What type of shoes was the defendant wearing at the time of the stop? Q: Isn’t it true that the roads were snow covered and icy?
5. Difficulty (or Lack Thereof) in Finding Driver's License
If defendant had no difficulty in obtaining and providing a driver's license, the defense will emphasize his extraordinary coordination under a very stressful situation.
a. No Difficulty
Q: Officer, did you examine the defendant's driver's license?
Q: In fact, he handed it to you, correct? What kind of billfold was it?
Q: The defendant had no difficulty producing this license from his billfold, did he?
Q: When you asked for it, he just reached right in the billfold and got it, isn't that right?
Q: In the usual case, officer, when you arrest a person for DUI, if he is under the influence, doesn't he have difficulty producing the driver's license?
b. Difficulty
If the defendant has some problems locating their driver’s license or providing it to the arresting officer, the defense will emphasize that this is a normal reaction to a stressful situation or focus on the uniqueness of the billfold or purse. The defense may also have the defendant testify as to why the stop and arrest was so stressful in an attempt to evoke sympathy from the fact finder:
Q: Officer, isn't it true that the defendant was quite nervous and excited when you stopped him?
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Q: And he produced the license as you requested, right?
Q: Isn't it true that many people are nervous and upset when first stopped by a police officer for even a simple traffic violation?
Q: You have seen many cases, haven't you, when people become so nervous they had difficulty finding their license, even though they had not been drinking any alcoholic beverages?
Q: Then the mere fact that a person has difficulty locating his driver's license does not indicate that he was drunk, or under the influence of alcohol, does it? 6. Field Sobriety Tests
The theory of cross-examination regarding field sobriety tests is to demonstrate that they are not scientific or easy to perform. Furthermore, the defendant will emphasize his emotional and physical state, footwear, road and weather conditions, or suggest the officer inaccurately recorded the results. Finally, the defendant may emphasize that because the officer had already concluded the defendant was intoxicated, he was biased in recording or analyzing the results. The defense will usually conclude with the following series of questions:
a. Physical Tests
Q: Isn't it true that you have seen people who could not complete the walk and turn or one leg stand test, as you demonstrated, who were not under the influence?
Q: As a matter of fact, you have observed people who have had nothing to drink who could not perform the test properly, haven't you?
b. Eye Tests
The pupil reaction to light test is to illustrate that a drinking person's pupil reaction is slower than a sober person’s pupil reaction. This test is more commonly used in a DUI investigation involving possible chemical substance impairment. The Horizontal Gaze Nystagmus (HGN) is to observe nystagmus which is more apparent and pronounced in an impaired individual. Both eye tests are subject to a series of questions challenging the officer's lack of training, the scientific basis for the test, and the officer's scoring of tests.
(1) Pupil Reaction to Light
Q: Officer, you say that the defendant's eyes reacted very slowly to light when you shined the flashlight in his eyes, correct?
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Q: Did you have any mechanical means of timing the defendant's pupil reaction? Q: Are you an optometrist?
Q: Have you made any special study of the human eye, or of the defects or diseases of the human eye?
Q: You realize that some people's eyes are different than others; that some people may have defective vision, or have something wrong with their eyes that may affect the speed at which the pupils will react to light?
Q: Not being specially trained in matters relating to the eye, you would not know whether atrophy of the optic nerve would affect the reaction of the pupil to light? Nor would you know whether an oculomotor nerve weakness would affect the reaction of the pupil to light?
(2) Horizontal Gaze Nystagmus
This test measures the eyes' autonomic tracking mechanism which is affected by alcohol. The officer asks the defendant to follow an object with his eyes that is moved back and forth in front of the defendant's face. If under the influence, the defendant's eyes will exhibit involuntary jerking. In
City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D. 1994). (N.D. 1994), the Supreme Court held
the HGN test may be admitted without scientific foundation testimony if the HGN is used in conjunction with other field sobriety tests. Other common challenges are lack of officer training, physical condition of the defendant's eyes, or improper scoring of the test.
c. Divided Attention Tests
Many officers use divided attention tests such as the alphabet test, partial alphabet test, reverse count test, and finger touch dexterity test. The purpose of the divided attention tests are to see whether the defendant can remember instructions and follow basic tasks. The defense may suggest poor performance on these tests is due to mental confusion resulting from an accident, the stress of arrest, or defendant’s limited intelligence, not alcohol consumption.
7. Slurred Speech/Failure to Understand the Officer's Questions
The defense strategy usually is to emphasize that the officer was able to obtain all necessary information, despite the defendant’s supposed impairment. Speech issues are justified through arguments regarding medical condition, emotional condition, dental work, or even that it is normal speech pattern.
Q: You testified you had a conversation with the defendant at the time of arrest, correct?
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Q: Did you ask the defendant his name? His address? Where he was going? Where he is coming from? What is the current time? (The defense may go through all questions in which the defendant gave an intelligent response). Q: Now, when the defendant told you his name, you understood that, didn't you?
etc.
V. CHEMICAL TEST OPERATOR
A. Intoxilyzer Operator/Direct Examination
The State of North Dakota exclusively uses the Intoxilyzer instrument, but regardless of which breath testing instrument is used, the chemical test operator must establish the following criteria to illustrate the test was “fairly administered” within the meaning of N.D.C.C. § 39-20-07 and North Dakota Supreme Court decisions:
1. The operator was qualified to operate the instrument; 2. The instrument was operating correctly;
3. The operator followed the approved method established by the state toxicologist; and
4. The ethanol breath standard is certified.
If the arresting officer is also the chemical test operator, the following suggested questions would also be asked. It does not hurt to have a second officer administer the Intoxilyzer test to avoid the defendant arguing that the arresting officer has a “vested interest” and may therefore tamper with the test result. The second officer could also offer a second opinion as to the defendant's condition.
The outline of questions below should not be followed rigidly as each case is different, but it should provide a representative sample.
1. What is your name and occupation? How long have you been employed in that capacity? What are your present rank, duties and responsibilities?
2. Are you trained and certified to administer the Intoxilyzer instrument?
3. Describe that training in detail. (Make sure the officer covers who conducted the training, when the training took place, and who was present at the training).
4. Did you administer the Intoxilyzer test to the defendant on the date in question?
