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.

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