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.


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