Drunk Driving
As a Michigan DUI lawyer I know first-hand that drunk drivers are reviled by juries. And for good reason; drunk drivers kill and maim people. This also makes drunk drivers good targets for plaintiff’s lawyers.
According to LawyersUSA on line, Plaintiffs’ lawyers using Gerry Spence’s trial methods and a theme of “win with truth and love” have won a $31 million verdict from a jury in a conservative California farming community on behalf of two sisters injured by a drunken driver.
What is particularly interesting about this story is the fact that, as indicated in the story, “a large percentage of the jury pool had close relatives who had been harmed by drunken drivers, so the issue had the potential to inflame the jury and spoil the verdict.”
It is not unusual for juries on Michigan drunk driving cases to have similar experiences and therefore carry a disdain for drunk drivers. Just as these experiences could have inflamed the jurors on the civil case, they can be similarly impassioned against the defendant in a drunk driving trial.
Another interesting fact is this: [T]he chief toxicologist for the county testified that based on a breath test taken hours after the accident, the driver would have had a blood alcohol level of 0.16 (twice the legal limit) and was more likely than not an “experienced drinker,” because otherwise he would not have been able to drive at all.
This testimony contains several misstatements of science. First, though not specifically mentioned, the toxicologist testified about retrograde extrapolation. This “science” is nothing more than guesswork, as has already been explained in these articles:
- Five Reasons Retrograde Extrapolation Should Not Be Allowed In DUI Cases
- Retrograde Extrapolation in Michigan Drunk Driving Cases
- Using Software to Assist the Jury in Understanding Alcohol Metabolism Calculations
Also, the testimony of defendant being an “experienced drinker” should never have been admitted because again, it is merely guesswork, not scientific fact. There is no doubt that, assuming the test was correct, a person at a .16 can certainly drive a car. Not only is contrary testimony speculative, it is scientifically specious.
DUI lawyers have to contend with this type of false testimony from state toxicologists on a regular basis. Unfortunately, few lawyers have the scientific knowledge or litigation skills to keep bad science out of the courtroom. As a result, drinking drivers are sometimes wrongfully convicted.
There is no doubt that drunk drivers can cause the kind of tragedy demonstrated by the plaintiff’s lawyers in this case, and I have nothing but empathy for the plaintiff’s and their families. It is also unfortunate however that cases like this make the defense of drinking drivers so much more difficult than other criminal cases; and that the anti-drunk driving fury caused by sensational facts and verdicts cause judges, prosecutors and police officers to be blind to the fact that drinking and driving is lawful, and that many people are wrongfully arrested and convicted because of overzealous law enforcement and bad public policy.
Finally, it is interesting to note that the plaintiff’s lawyers were both trained and are instructors at the Gerry Spence Trial Lawyer’s College. I have attended the Spence Trial Lawyer’s College and know personally the power of the skills taught there.
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baronedefensefirm – who has written 204 posts on .
Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.
