Every DUI lawyer knows that winning OWI trials requires persuading juries to disregard a breath or blood test. But disregarding does not mean ignoring. For this reason one of the first questions a DUI lawyer will ask his prospective client is: what did you blow?
Certainly this is a legitimate question for the DUI lawyer to ask because the number will have some sort of impact on the outcome of the case. For example, the judge will usually ask the DUI lawyer to stipulate to the test result as part of the factual basis for the plea and the prosecutor will rely on the test when deciding whether or not to even bother offering one.
DUI Jury Trial
The problem with this emphasis on the test result is the simple assumption that underlies it which is that the number is meaningful. By allowing the focus to be placed on the result DUI lawyers fall into the same faulty thinking to which jurors often fall prey. An even bigger problem with this failure to challenge the test results is that this failure causes unconvincing arguments to be framed during trial.
The surest way for a DUI lawyer to get to a one-word verdict at trial is to either fail to make a proper argument about the appropriate meaning to attach to the breath or blood test result, or to allow a prosecutor to make an improper one.
Perhaps the most common yet certainly improper argument prosecutors make is that if the chemical test is it admitted, and if it’s over .08, then the law requires the jury to find the defendant guilty. Prosecutors may even ask the jury to commit to such a verdict of guilty in voir dire. But during trial what does the number really mean? In many ways it depends on who you ask and why you are asking.
A DUI trial lawyer must start challenging the improper assumptions made about the meaning of the test. Even more importantly, DUI lawyers must challenge prosecutors when their arguments to the jury relative to these assumptions are sloppy or worse contrary to the law. The fact is that nothing in the law requires the jury to automatically find the defendant guilty merely because of a number printed on a piece of paper. When thinking about the test it is important for the DUI lawyer to remember that the ultimate question for the jury is weight, and this is reflected in Michigan’s DUI jury instructions CJI 15.5 where the jury is finally instructed that “you may give the test whatever weight you believe that it deserves.” If a DUI lawyer only makes one argument at trial during summation, this should be the one.
Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!
This post was written by...
baronedefensefirm – who has written 203 posts on Michigan DUI and License Restoration Lawyers.
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.