Proven Drunk-Driving Jury Argument

From Attacking and Defending Drunk Driving Tests by Don Bartell

In 2007 the California DUI Lawyers Association in conjunction with the National College for DUI Defense released the results of a DUI jury research project. The two principal goals of the project were to discover what jurors were most receptive to DUI defendants [see Chapter 19], and what arguments resonated best with jurors in a drunk driving trial. The study showed that one of the best arguments resonating with jurors was the failure of the police to follow proper guidelines. Make sure the heart of your case is about attacking the government’s mistakes – not defending your client’s.

Some of key findings from the jury research project revealed the following:

• The rising blood alcohol defense did not resonate particularly well with jurors. The defense is slightly complicated to present, and basically is telling the jurors that the officer stopped the defendant before the defendant had a chance to become drunk. This is not the strongest argument to make people root for you.
• Many defense lawyers have long advocated that defense attorneys describe breath testing equipment as machines. After all, machines do break. By the same token, prosecutors have been instructed to call breath machines instruments. An instrument seems much more precise. People describe surgery being done with instruments, not machines. In court, these conflicting designs sometime turn humorous. The lawyers try to outdo each other: one calling the device a machine, the other characterizing the device as many times as possible as an instrument. As it turns out, the results of the jury research project recommended that the defense describe breath testing equipment as neither instruments nor machines. The feeling from the project was that the word machine, like the word instrument, has a certain feeling of accuracy to it. The results of the project recommend that defense lawyers instead describe breath testing equipment whenever possible in general terms. Describe the end results, calling them for instance, evaluations. Given this, consider calling the breath machine, in court, the breath evaluator.
• Instead of using the term margin of error, the jury project recommended defense lawyers describe the margin of error in alcohol testing devices as a range. Combining the lessons together, one might ask, Isn’t true that this breath evaluator has a blood alcohol range of plus or minus .02%?
• As for field sobriety tests, the project suggested calling them preliminary roadside evaluations. The research project also found that field sobriety tests not done in conformity with the NHTSA guidelines caused significant concern for jurors. [See the CD that accompanies this book for a NHTSA manual.] Consequently, emphasize the failure to properly follow police procedures. Cases are about what cases are about.

Donald Bartell is a partner in the law firm of Bartell & Hensel in Riverside, California, and has been in private practice since 1984. He is on the Board of Directors of the California DUI Lawyers Association, and is a frequent lecturer around the state on DUI trial tactics. He has been asked to participate in the California DUI Lawyers Association and National College for DUI Defense’s jury research project investigating what arguments resonate with jurors in drunk driving cases.

Single-Page Checklist of Recurring DUI Objections

From Attacking and Defending Drunk Driving Tests by Don Bartell
Voir Dire

• The question does not go to cause or to assist in the exercise of peremptory challenges.
• The juror was improperly struck due to race/sex in violation of the 5th and 14th Amendments to the U.S. Constitution. [See in Court Batson Reference Guide Chapter 19.] Also consider state objections.

Opening Statement

• Argumentative.

 

Police Officer

• Leading.
• Calls for a narrative.
• No Foundation/Beyond the Officer’s expertise.
• Speculation.

 

State Percipient Witnesses

• Leading.

 

Phlebotomist

• No Foundation as to qualifications or to procedures used.

 

State Expert Witness

• Chain of Custody.
• No Foundation.
• Not an expert in this area (sometimes occurs with respect to FST’s).
• Improper Hypothetical (no facts to support hypothetical).
• Non-responsive.
• Hearsay and violates the defendant’s right to confrontation under the Sixth and Fourteenth Amendments to the United States Constitution.

 

Defense Percipient Witnesses

• Argumentative (cannot ask the witness to comment on another witness’ veracity).

 

Defense Expert

• Request the Court to allow the witness an opportunity to finish his/her answer.

 

The Defendant

• Argumentative (cannot ask the defendant to comment on another witness’ veracity).
• Request the Court to allow the witness an opportunity to finish his/her answer.
• Violates the defendant’s rights to remain silent under the 5th and 14th Amendments to the U.S. Constitution. The question constitutes Doyle v. Ohio error. Request the Court to admonish the jury to disregard the prosecutor’s question.

 

Closing Argument

• Misstates the evidence / misstates the law.
• Vouching, improperly stating personal opinion.
• Violates the defendant’s right to remain silent under the 5th and 14th Amendments to the United States Constitution. Griffin v. California error (commenting on the defendant not testifying); Doyle v.Ohio error (commenting on post Miranda silence). Request Admonishment.
• Improperly appeals to passions and emotions of jurors.

Donald Bartell is a partner in the law firm of Bartell & Hensel in Riverside, California, and has been in private practice since 1984. He is on the Board of Directors of the California DUI Lawyers Association, and is a frequent lecturer around the state on DUI trial tactics. He has been asked to participate in the California DUI Lawyers Association and National College for DUI Defense’s jury research project investigating what arguments resonate with jurors in drunk driving cases.

Slides to Use When Voir Dire in a DUI Case Is Limited

From Innovative DUI Trial Tools by Bruce Kapsack

With the increase of limited voir dire, it has become incumbent upon counsel to be prepared to ask quick, simple questions in order to pick a jury. While I do not favor allowing this trend to continue or expand (see the arguments in the beginning of this chapter) I am familiar with reality. The following power point slides were developed based on ideas from Robert Hischorn to deal with this problem.

These are not inclusive and should be a good starting point for your own adaptation and use. Add more specific questions that relate to the issues in your particular case.

Simply put one up on a screen or poster board and ask each juror to give his or her numerical position. After every three or four jurors, re-read the question aloud to stop an avalanche of following the answer given by the preceding person. Either you—or even better, your client—can input the score for each juror. The higher the score, the better the juror.

This can be done so quickly that the prosecutor is not able to keep up. And the prosecutor will not necessarily know that jurors with the low scores are the ones that he or she wants.

The beauty of this system is, by creating a simple score card to record the number of the answer chosen by each juror, you can tell who you do and do not like. Be sure to draft all your questions the same way so that the higher numbered answers reveal jurors with attitudes that are favorable to the defense. Thus, the higher the total score, the more favorable the juror. It will not help you if good jurors get ones on some questions and sixes on others.

View PDF slides below (from Innovative DUI Trial Tools)

Fig. 2-01 Burden of Proof

Fig. 2-02 Guilt Based on Being Charged

Fig. 2-03 Guilt Based on Chemical Tests

Fig. 2-04 Guilt Based on Defendant’s Not Testifying

Fig. 2-05 Trustworthiness of Chemical Evidence

Fig. 2-06 Trustworthiness of Officer’s Opinion

Fig. 2-07 Guilt Based on Two Drinks

Fig. 2-08 Better to Free the Guilty Than Convict the Innocent

Fig. 2-09 Field Sobriety Tests and Ability to Drive Car

Fig. 2-10 Field Sobriety Tests and Ability to Judge Blood Alcohol Level

Bruce Kapsack originated many of the DUI defense strategies used throughout the country.  He has worked or lectured with virtually every nationally-known expert in the DUI arena, and his DUI lectures for the California State Bar and the California Public Defenders are among the best attended in the state. Mr. Kapsack is an Instructor of NHTSA’s Standardized Field Sobriety Tests.

Attacking Widmark Calculations

From Attacking and Defending Drunk Driving Tests by Don Bartell

The more the defense lawyer can shake jurors loose from the predisposition of guilt (the predominant problem in a drunk driving trial) the more favorable the trial prospects of the defense.

Attacking Widmark calculations is an effective way to accomplish this mission because the Widmark formula uses averages to arrive at conclusions. Most jurors understand the problems inherent with using averages, and averages are the antithesis of proving something beyond a reasonable doubt.

When jurors hear that there is going to be a calculation using a long established formula, most jurors presume that the calculation is going to have some type of mathematical certainty.

However, when the jurors hear that in reality the Widmark calculations are actually nothing more than an educated guess, hopefully they will begin to question some of their initial assumptions. After the cross-examination on Widmark calculations, many jurors may not be as predisposed to convict as when they were first seated. The defense campaign from the start is to get jurors to think “there is more to this than I thought—the case is not cut and dried.”

One way to remind jurors about the problems with averages that are used in Widmark calculations is to give them analogies that emphasize the problem with using averages. There are an endless amount of examples. For instance, you might tell jurors if one leg on a man’s pants is too short, and one leg is too long, the prosecution’s tailor would have you believe that on average the pants fit just fine. Or, if when you first turn the shower on in the morning, the water is biting cold, and then it turns to scalding hot, don’t worry, on average according to the prosecution’s plumber you are having a pleasant shower.

It is difficult to describe, but you will sense a perceptible change in the courtroom when the presumption of guilt starts to fade. Jurors seem more attuned to your questioning; the judge seems to give you more leeway in your cross-examination; the prosecutor seems a little more on edge. The difference is that the predominant problem in the case is beginning to become solved. This is the secret to winning drunk driving trials.

Attacking the Calculations

In a typical drunk driving prosecution, at some point the state’s expert will give an opinion as to how much the defendant had to drink. The prosecutor will ask the expert to assume a certain time of driving, a weight of the defendant, and give the expert the chemical test result.

The expert usually takes out a calculator and performs some intricate calculations. It looks serious, and with the expert’s deep-studied concentration while performing the calculations, it is an impressive show to the jury. There is some suspense while the jury waits for the result.

The result is frequently at odds with what the defendant told the police officer he or she had to drink on the night in question. The prosecutor then plays this point up to the jury.

Note, however, that usually nothing more is offered in the way of how this result was actually obtained.

Expose the Charade

With the aid of a calculator, an expert has determined that your client had a high BAC. This conclusion further cements the jurors’ initial impressions that the defendant is in fact guilty. After all, an expert for the state has just as much as said so.

However, the way that these Widmark computations are presented provides a unique opportunity for the defense.

Ask the state’s expert if he or she discussed the case with the prosecutor before testifying. The answer is almost always yes. Then ask if the two of them discussed the calculations determining the number of drinks the defendant consumed. Again the answer is usually yes. Now draw on the fact that the expert knew the answer to the prosecutor’s drink calculation question before it was asked. Do this by asking (telling) the expert that since the expert already knew the answer to the question before it was asked, the drama staged by taking out the calculator was nothing more than an unnecessary charade for the jury. The following is a sample cross-examination:

Q:    Did you discuss this case with the prosecutor before coming to court?

A:    Yes, I did.

Q:    And as part of that preparation did the two of you discuss how much you believed the defendant had to drink?

A:    Yes.

Q:    You determined that by performing the calculations you just did for us in court today?

A:    I used the same method.

Q:    Then I take it prior to testifying today you knew the answer to the question as to how much you believed the defendant had to drink?

A:    Yes.

Q:    So taking your calculator out and spending all that time performing computations was not necessary?

A:    Well, I like to be accurate.

Q:    You knew the answer already—your computation was nothing more than a charade you performed for the jury?

At this point, you really do not care what the answer is. The witness and the prosecutor have been exposed. If you are lucky, someone seated nearby in the jury box might begin to start thinking, if the case is so “cut and dried,” why is the prosecution going to such lengths to deceive us. The predominant problem for the defense is beginning to become solved.

There is not much downside risk in this line of questioning. If the witness denies going over the calculations with the prosecutor before testifying, you can simply move on to other questions. No one will know the significance of what you were about to ask, but did not. Also, the jury may think it is a little sloppy for the prosecution to put a witness on the stand without discussing the case with the witness first.

If you are still concerned about venturing into this area without more assurance of a positive reply, then watch the prosecutor and the expert during any recess. It is a common practice to have a recess before the prosecutor puts on the state’s expert. Generally, the police officer is the first witness to testify, followed by the expert. After the officer’s testimony, it is a natural time for the court to take a recess. Some prosecutors even ask for the recess so they can talk with their expert. You can sometimes see the expert and the prosecutor doing the computations with the calculator in plain view in the hallway or at the counsel table during the recess.

Ask What the Formula Is

Many experts do not really have an expert understanding of Widmark’s work. What they count on is that you do not have much of an understanding of the work either. They presume that they can get away with making Widmark calculations without discussing the limitations in the calculations, and usually they do.

You can expose imposters posing as experts on Widmark. Ask the expert if there was some formula the expert used to calculate the amount of drinks the expert claims the defendant drank. The expert will reply that there is such a formula. Ask if the formula used was the Widmark formula. The expert will say yes, or will say a modified version of the formula based on Widmark’s work was used. Either way the inquiry proceeds in the same manner.

Next ask the expert what the Widmark formula is. Many experts will reply with a formula that is not the actual formula. These experts, instead, use a shorthand version of the formula in court. This shorthand version of the formula does not accommodate any of the variables that are in the actual formula. [For the actual formula, see Chapter 9, Blood Alcohol Concentration and Widmark Calculations.]

The shorthand formulas experts predominately use are as follows:

• Number of drinks, times 3.75, divided by your client’s weight, minus .017% an hour = BAC
• Or solving for the alcohol level per drink they use the following formula: BAC/drink = 2.57/(weight) (Widmark r)]

When the expert gives a reply with a formula that is not Widmark’s formula, ask the expert “this is not the actual formula is it?” The expert will then realize that you have more information on this topic than he or she expected. Only now will this expert own up to the fact that the version of the formula they gave is not actually Widmark’s formula. Finally, ask the expert what the actual Widmark equation is. Stunningly, the answer is often that the expert does not know.

You can emphasize in closing argument that the expert made calculations without knowing the actual formula.

Ask Whether the Expert Has Read Widmark

Most experts have not read Widmark’s work.

If you ask an expert if he or she has read Widmark’s work, they may reply smugly that they have not read it because the work is in German. However, do not let the expert escape so easily. There is an excellent English translation of the work by Randy C. Baselt, Ph.D.

Prior to actually asking the expert if he or she has even read Widmark’s actual work, ask a series of questions from the work. Let the expert answer “I do not know” a few times before asking the ultimate question: “Have you even read the book?” This will help maximize the impact of their failure to read the definitive work.

If the expert does not know the actual formula, and has not even read the book, the strength of the expert’s opinions and calculations will be diminished. The following is a sample cross-examination of a criminalist’s knowledge of Widmark’s work:

Q:    These calculations you did to determine the amount of drinks the defendant consumed, did you use some type of formula?

A:    Yes.

Q:    Is that the Widmark formula?

A:    Yes.

Q:    Well, could you please tell us the Widmark formula?

A:    I would be happy to. The formula is the number of drinks, times 3.75, divided by your client’s weight, minus .02% an hour.

[Expert’s frequently use a burnoff rate of .02% an hour for no other reason than it makes calculations in court easier. The actual average rate is lower, although, the normal range extends beyond this point as well.  Some experts calculate the formula by finding for the blood alcohol level per drink. They use the following formula: BAC/drink = 2.57/(weight) (Widmark r).]

Q:    Is that the actual formula?

A:    No, it’s a version I use for court. It is quicker so we don’t waste the jury’s time.

[The witness will sometimes offer up some diversion hoping to avoid the next question. The examiner should simply make a mental note that the cross-examination appears to be working. Then plow straight ahead with your questioning.]

Q:    Well what is the actual formula?

A:    I do not know. This is the one we use.

[The witness realizes he or she has been caught and tries to drag others down with the witness by using the word “we.”]

Q:    Well, let me ask you this. You told the prosecutor on direct examination that the odor of an alcoholic beverage was one of the factors you used to base your belief that the defendant was impaired.

A:    It was one factor.

Q:    Didn’t Doctor Widmark indicate in his book that the odor of an alcoholic beverage is of a little assistance in determining if a person is under the influence?

A:    I would agree with that.

[This is a dodge to avoid answering the question of whether or not the expert knows what is in Doctor Widmark’s book. The witness would be better off acknowledging right away that he has not read the book. But the witness is still hopeful the question will never be presented.]

Q:    Do you know what Widmark found the coefficient of variation to be for men concerning the constant r factor?

A:    No.

[The answer is 13. Again, if the witness had answered on his or her own that the witness had not read the book, the questions would have already ceased. Failure to do so prolongs the agony.]

Q:    Well how about for women, what was the coefficient of variation for the r factor for them?

A:    I do not know.

[The answer is 10.]

Q:    Well, let me ask you this, how many men and women did Widmark use in his chapter on study of the kinetics of the conversion of alcohol, to determine the r factor?

A:    I do not know.

[The answer is 20 men and 10 women.]

Q:    Did Doctor Widmark find any correlation in his work between the constant ß and the constant r?

A:    I do not know.

[The answer is he did not find any correlation.]

Q:    You will forgive me, but have you read Widmark’s work?

A:    No, it is written in German.

Q:    Well have you read the English translation by Randy Baselt, Ph.D.?

A:    No.

Q:    You have not read any version of Widmark’s original work?

A:    No.

Donald Bartell, author of Attacking and Defending Drunk Driving Tests,  is a partner in the law firm of Bartell & Hensel in Riverside, California, and has been in private practice since 1984. He is on the Board of Directors of the California DUI Lawyers Association, and is a frequent lecturer around the state on DUI trial tactics. Mr. Bartell is a contributing author to James Publishing’s California Drunk Driving Law, and wrote the chapter Defense of Drug Cases in Medical-Legal Aspects of Drugs.

Use the Police Report to Hog-Tie the Officer

From Relentless Criminal Cross-Examination by Kevin Mahoney

Early in my career a trial lawyer told me, “The answer is in the documents,” and it has proven true so often that I consider it Gospel. I scrutinize the documents. I read the important documents again and again and again. I commit them to memory. I compare them against other documents and, if available, transcripts of the author. I look to see when they were written to determine the order in which they were written. I analyze not only what is written, and how it is represented, but what is missing. Use these documents to pin the witness to the mat.

Police Report Not Objective

Many attorneys review police reports to discover what happened. A police report is not an objective recitation of the facts from a disinterested witness. Instead, it is usually written by the arresting officer post-arrest. Most officers write a report not with the goal of helping the arrestee obtain an acquittal, but to make the arrest stick; to safeguard the fruits of a constitutionally suspect search; to satisfy a supervisor that the arrest was justified; or to provide the prosecutor with a summary of the “facts.” If they have previously testified or have been schooled in drafting reports, they may write the report to minimize their exposure on cross-examination. They will carefully select their words. They may twist the words of witnesses, misrepresent what the client said or how he said it, and deliberately leave out exculpatory evidence. If they have made similar arrests in the past, for DWI for example, they may simply reuse the same “facts” or phrases, either out of habit or laziness. Few jurors will have considered what factors motivate a detective or officer in drafting his reports. Use cross-examination to both expose the officer’s motivations and to educate the jury about them.

Pattern Cross: Pressure to Draft Comprehensive Report

It is not uncommon for an officer or detective to testify to an important “fact” not included in his report. If questioned on his failure to note the “fact” in his report, an experienced officer will typically shrug it off with, “This is only a summary, Counselor. It doesn’t include every detail or every observation.” If left unchecked, on redirect this officer might decide to sneak additional “facts” into his account. Worse, officers who have not yet taken the stand will hear how easy it is to slip some additional “facts” into their testimony. Corner the officer by highlighting the pressures on the officer to make his report as comprehensive as possible.

Officer taught at Academy to draft comprehensive reports

Q:  Officer, you attended the Police Academy?

A:  That’s correct.

Q:  At the Academy, you were taught the importance of drafting police reports?

A:  Yes.

Q:  That the report should include all important facts?

A:  Well, again, Counselor, it is a summary.

Q:  You were taught that a report should include all important facts?

A:  It’s only a summary, as I’ve said.

Q:  Okay. The Academy actually gives a course in drafting a police report?

A:  Yes.

Q:  At the Academy, you were taught that other officers or detectives might rely on your report in conducting their investigations?

A:  That’s correct.

Q:  That these detectives or officers require all the important information to do a proper investigation?

A:  Yes.

Q:  And for that reason, your report should be comprehensive?

A:  Well, my report includes the necessary information.

Q:  For that reason, your report should be comprehensive?

A:  Ah… yes.

Officer drafts report for benefit of prosecutor

Q:  You were taught that the prosecutor will be provided with your report?

A:  Yes.

Q:  To familiarize himself with the case?

A:  Yes.

Q:  And rely on that report to make a bail argument?

A:  Right.

Q:  To inform the court of exactly how strong the evidence against the defendant is?

A:  Yes.

Q:  To allow the prosecutor to assess the likelihood of securing a conviction?

A:  Yes.

Q:  To, perhaps, negotiate a plea with the defense attorney?

A:  Yes.

Q:  To prepare for trial?

A:  Yes.

Q:  Which includes preparing a direct examination?

A:  That’s right.

Q:  Of you?

A:  Yes.

Q:  And you’ve learned that, prior to the trial, you may have little or no contact with the prosecutor?

A:  Unfortunately, that’s true.

Q:  You might meet with the prosecutor for the first time the morning of the trial?

A:  Yes.

Q:  And in such a case, much of what a prosecutor learns about your arrest he will glean from your report?

A:  Yes.

Q:  And for that reason alone, your report should be comprehensive?

A:  As I said…

Q:  To make sure that the prosecutor is properly prepared, you’ve learned that your report should be comprehensive?

A:  Yes.

Q:  When drafting your report, you make sure you include everything you want the prosecutor to know about your case?

A:  Well, I try.

Q:  And you’ve learned that sometimes six months, a year, or more might pass between the arrest and the trial?

A:  Correct.

Q:  And during that six months or more, you’d expect to make additional arrests?

A:  Yes.

Q:  To testify in other cases?

A:  Yes.

Report drafted when events and memory are fresh

Q:  And like all of us, your memory immediately following an event is better than it is six months or more after the event?

A:  That’s true.

Q:  You were outside the courtroom this morning?

A:  Yes.

Q:  You were seated on the bench just outside this courtroom?

A:  Yes.

Q:  Reading your report?

A:  Ah, yes.

Q:  Reading your report to refresh your memory?

A:  Yes.

Report drafted in anticipation of cross-examination

Q:  When drafting your report, you include everything that you will want to remember when the trial rolls around?

A:  Yes.

Q:  You are also aware that the defense lawyer will receive a copy of your report?

A:  Yes.

Q:  You know from testifying in other cases that the defense lawyer will cross-examine you on the contents of your report?

A:  Yes.

Q:  That’s another reason you were re-reading your report?

A:  Well, I… that’s true.

Q:  You know from experience that if you testify to an allegation not contained in the report, the defense attorney will question you about that during cross-examination?

A:  Yes.

Q:  That’s happened before?

A:  Yes.

Report is “complete summary” of all important facts

Q:  You wrote the report yourself?

A:  Yes, of course.

Q:  You had the time necessary to draft the report?

A:  Yes.

Q:  You’re not given a time limit?

A:  What do you mean?

Q:  In other words, you’re not given 10 minutes to draft a police report?

A:  No.

Q:  You take the time you need to draft the report?

A:  Within reason.

Q:  When you finished the report, you read it to yourself?

A:  Yes.

Q:  You were satisfied that it included every important fact?

A:  As I said, it’s a summary.

Q:  You were satisfied that your report included every important fact?

A:  It was a summary.

Q:  A summary that did not include every important fact?

A:  Yes.

Q:  So, you provided the prosecutor with an incomplete summary?

A:  No.

Q:  In preparation of your testimony here today, you re-read an incomplete summary to refresh your memory?

A:  Ah, no.

Kevin J. Mahoney is a criminal defense lawyer in Cambridge, Massachusetts. He regularly provides on-air legal analysis for Fox News Live, Fox & Friends, CNN, Nancy Grace, and Court TV. His successful defense of Christina Martin, dubbed the “Jell-O Murderer” by the national press, was chronicled on Court TV’s Forensic Files. Mahoney has won 36 of his last 38 trials.

How to Win the Trial After the Judge Fails to Suppress Unreliable Evidence

By Patrick T. Barone, Esq., author of Defending Drinking Drivers

We are always looking for ways to obtain results for our clients. Naturally, our first line of attack will be motion practice, and this usually means looking for ways to have evidence suppressed. The problem of course is that when it comes to the law, judges often see things differently than we do. And the result is that evidence is rarely suppressed. This does not mean that you should give up filing motions, and it certainly does not mean you give up trying to win.

I discuss ways to respond after losing a motion to suppress in a newly added section in my book Defending Drinking Drivers, which has been reproduced below. This section specifically addresses those instances when the judge rules that your argument goes to weight rather than admissibility and I am always looking for ways to turn a pretrial loss to my advantage at trial.

In a recent drunk driving case the judge ruled that I was not entitled to certain discovery. My response, based primarily on the arguments set forth in this new section, was to prepare a special jury instruction. I wanted the jury to know the prosecutor was essentially withholding evidence, and I wanted the judge to tell them about it. In the end we settled the case, but I’m looking forward to making these arguments in a future trial.

§608 Empowering the Jury to Provide Justice

As a lawyer you don’t get to choose the facts of your case. Your client does that for you; and while you can’t change the facts of your case, you might be able to exert some influence over whether or not all of the case facts are presented to the jury. In the preceding chapters, many different issues and arguments are discussed relative to the task of keeping unfavorable evidence from being presented to the jury.

Usually this effort to “change the facts” takes the form of pretrial suppression motions, and there is no doubt that wining such motions is becoming increasingly difficult. Across the nation when looked at collectively, it may be said that the most common response to a defense motion to suppress is that your argument “goes to weight rather than admissibility.” At the appellate level, the result of these collective opinions is that the gate-keeping function of trial court judges relative to intoxication evidence is being largely eviscerated. A secondary result of this trend is that the role if not the power of the jury is increasing. An excellent example of this is set forth in the case of People v. Anstey, 719 N.W.2d 579, (Mich. 2006). In this case, the defendant’s right to an independent test was effectively denied by the police officer but the statute governing this right did not propose a remedy for violation. The court was unwilling to impose one, and instead concluded that the defense could request an evidentiary hearing on the issue, and if it was proved at the hearing that the motorist’s right to collect an independent test was violated, then the jury, not the court, could make the appropriate determination. It was thus the role of the trial judge to instruct the jury that the defendant’s implied consent rights were violated, and it would then be up to the jury to determine what significance, if any, to attach to this fact in deciding the case. For a more detailed description of this case see infra §534.9.

The Ansty opinion, and others like it, have effectively expanded the role of the jury and for this reason ought to be viewed with some optimism as this expansion is perhaps an unintended result of this “anti-gate keeping” trend. While it may appear that this potential is not fully realized because these opinions do not explicitly allow the jury to impose an actual remedy such as suppression and/or dismissal, one may argue that such increased jury power simply must be read as implicit in the various opinions that deprive the trial judge of this discretion. After all, it would seem that if the appeals court is going to ostensibly pass the gate-keeping power, discretion and responsibility on to the jury, then this ought at least to be done in a way that empowers the jury to exercise authority previously reserved for the trial court judge, that is, the power to actually impose a remedy. In other words, and in following the reasoning of “weight vs. admissibility”, if the trial judge is not allowed to provide for a remedy then what’s to stop the jury from fashioning one?

To accomplish this education of the jury, defense counsel has several options. These options begin of course with pretrial preparation, and so, in preparing the trial strategy, counsel might first consider filing pretrial motions requesting as appropriate either suppression or dismissal. If the trial judge denies the motion answering with the “weight not admissibility” retort, then counsel might follow through by asking for an appropriate jury instructions, i.e., one that specifically empowers the jury to fashion an appropriate remedy, including either dismissal or suppression. These special jury instructions might be appropriate in circumstances involving improperly issued warrants, improperly administered chemical tests, administrative rights violations and even where there has been a failure to properly administer one or more of the standardized field sobriety tests. This power of the jury to fill in for the trial judge is meaningless unless it is pursued by counsel, but with the proper instruction, and the proper argument, this power can be capitalized upon. Counsel should be careful therefore to draft instructions that empower juries by advising them of their “right” to impose the appropriate remedy. Also, for a discussion of how to incorporate these concepts into voir dire, see supra, §610.5
Patrick Barone, author of Defending Drinking Drivers 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.

Avoiding Malpractice in Times of Economic Turmoil

By Patrick T. Barone, author of Defending Drinking Drivers

With the economy continuing to falter and legal malpractice lawsuits on the rise, it is more important than ever to carefully draft your fee agreements.  In §321 of Defending Drinking Drivers (James Publishing) I discuss the various fees available to criminal law practitioners as follows: “The model rules of professional conduct provide three ways to bill for professional services: (i) an hourly rate; (ii) a fixed or “flat” fee; and (iii) a contingency fee. MRPC 1.5. However, contingency fees are not permitted in criminal cases. MRPC 1.5(d)(2).

Regarding the remaining two fee structures, there are potential advantages and disadvantages to both the hourly fee and fixed flat fee, and they should be considered in determining which fee to use. For example, the hourly fee is a better option for an attorney that does not have enough experience to be able to determine the number of hours that it will take to appropriately complete the representation.  The most common fee for DUI defense lawyers is the flat fee.

Flat fees are particularly appealing in tough economic times because they allow the client to better anticipate and budget for the legal services purchased.  Flat fees can be further catagorized to either refundable, partially refundable or non-refundable.  To further complicate the matter, fees are sometimes characterized as a “general retainer” or “advance fee.”  Each of these fees are discussed and defined supra at §322.

Of the different flat fees available, the type that causes the most problems are those labeled “non-refundable.”  Most commonly, the problems arise from a client’s decision to terminate the attorney/client relationship before the entire task originally contemplated has been completed.  In these instances, the question is always whether or not the entire flat fee has been earned, and if not, whether or not any portion of the fee should or must be returned.

In Grievance Adm’r, Attorney Grievance Com’n v.Cooper, 757 NW2d 867 (2008), the Michigan Supreme Court ruled that an attorney’s fee agreement, which had a nonrefundable fee of $4000 upon execution of the agreement, did not violate MRPC 1.16(d), which requires refunding to the client fees “any advance payment of fee that has not been earned.”  Additionally, the Court held that such an agreement does not violate MRPC 1.5(a) (excessive fees) or MRPC 1.15(b) (promptly paying client funds or property to which client is entitled).

In finding that the agreement was enforceable, the Court held:

As written, the agreement clearly and unambiguously provided that the respondent was retained to represent the client and that the minimum fee was incurred upon execution of the agreement, regardless of whether the representation was terminated by the client before the billings at the stated hourly rate exceeded the minimum.  So understood, neither the agreement nor the respondent’s retention of the minimum fee after the client terminated the representation violated existing MRPC 1.5(a), MPRC 1.15(b) or MRPC 1.16(d).

Id.

While most states have used the model rules as guide, the specific rules of professional conduct vary from state to state.  It is always a good idea to check with your specific state bar regarding the use of non-refundable fee agreements.  It appears however, that so long as the agreement is in writing, and the client clearly understands that the fee paid will be non-refundable under any circumstances, they may be allowed.  A well-written fee agreement is a great way to start a relationship that will not later foster a possible malpractice claim.

Patrick Barone, author of Defending Drinking Drivers 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.