OWI cases ("operating a motor vehicle under the influence of alcohol) cases, more than other other traffic or criminal charge, tend to go to trial. There are many reasons that this is true. Firstly, the vast majority of persons charged with OWI are generally- if not scrupulously- law abiding people. It is devastating for these people to find themselves in court facing a charge that, in the minds of certain other people, is only slightly less serious than a homicide. Secondly, the remarkably serious penalties for the offense, combined with a statute that prohibits plea bargaining a charge of OWI, creates little incentive for the defendant to plead guilty. Rarely will a defendant who is convicted after a trial wind up with a sentence that is more severe than what the prosecutor was offering for a guilty plea. So these are cases that tend to go to trial.
Given any thirty charges of operating under the influence of alcohol, though, there typically will be five cases a lawyer will win no matter what; there will be ten that the lawyer will lose no matter what- and so it is how you do in the fifteen cases in the middle that determines whether you are a resounding success or a total failure for your clients.
Probably the most reliable indicator of a case that is a winner is the presence of a "hook"- that is, something in the evidence on which the jurors may hang their hat. A good hook involves a plausible and objective explanation of why the defendant was not under the influence of alcohol. Many times there is no avoiding the straight-forward "I didn't have enough to drink" defense (i.e. with no explanation other than the because defendant says so); however, those are difficult cases to win.
One example of a good hook is the "girlfriend/wife defense." In this scenario a couple will be out at a party together. The man will have something to drink but the woman will not. The man drives home and the woman is there in the passenger seat when he is pulled over and arrested for OWI. The objective fact that the sober woman
Usually the arresting officer will focus on all of the things that the defendant did wrong during the encounter.
was there in the passenger seat is compelling circumstantial evidence that the man was not unsafe to drive. The woman was in the man's company all evening and presumably observed what he had to drink. The wife knows the personality of the man well and is in the best position to know whether he has had too much to drink. But most importantly, she has the most to lose if her assessment is wrong. On top of that, it would have been a very simple matter for her to simply take the keys.
Another hook is where there were problems with the Intoximeter. It is not unusual for the machine to read "out of range". That is, where the subject's two tests are more than .02 apart. When this happens the test sequence must be repeated. This, of course, tarnishes the scientific reliability of the machine.
These are only two examples of "hooks"- there are many others.
Pick the Jury
The process of "voir dire" (jury selection) is important in every criminal case. It is absolutely critical in an OWI trial. There are many people in the community who have what may be fairly described as an irrational animosity toward those charged with OWI. In their minds, the charge itself is enough evidence that the person is a danger. The root of this animosity can be the fact that a friend or family member was injured in an accident where alcohol was involved; or it may just be the success of the public service campaigns designed to deter operating under the influence. In any event, these people cannot be allowed to sit on the jury.
It may be difficult during the jury selection process to discern who these people are because many of them know that they will be struck from the jury if they reveal their prejudice. The best way to force these people reveal themselves is to ask open-ended questions that require an explanation by the potential juror. For example, ask the question, "Who on the jury panel has heard the saying 'if you drink don't drive and if you drive don't drink?" Most everyone will raise their hand. Then pick jurors individually and ask them, "What does that saying mean to you?" Listen carefully to the explanation. Clues such as word choice and tone of voice will reveal this person's true colors.
Do not avoid the direct approach, though. Ask who has a friend or family member that was injured in an OWI accident. Ask who has never driven a car after having had even a small amount to drink. It almost does not matter what the actual answers are because the fact that there was an answer at all speaks volumes.
If you want to have a chance at an acquittal in an OWI trial do not start with one foot in the grave. Spend the time necessary to pick a fair jury.
Cross-examining the Officer
An inexperienced defense lawyer will cross-examine the arresting officer through an almost obsessive use of the "prior inconsistent statement." That is, the lawyer will memorize and index the officer's narrative report of the incident and then cross-examine by highlighting, ad nauseum, every statement made during the direct examination at trial that was even minutely inconsistent with the report. This takes no skill. When I see it done I get the impression that instead of trying to win the case the lawyer is showing off how "well prepared" he or she is for the trial. I want to shout out, "Objection- boring." And this method of cross-examination does not work, either.
Usually the arresting officer will focus on all of the things that the defendant did wrong during the encounter. For example, his testimony will go along like this, "I put on my red and blue emergency lights and the defendant pulled over. When I approached the vehicle I could detect a strong odor of intoxicants. The defendant's eyes were red and bloodshot and his speech was slightly slurred."
You will never succeed on cross-examination in talking the officer out of his belief that he observed these things. The fact that he may have written it a little differently in the report will not convince the jury that the officer is lying. What the lawyer must accomplish on cross-examination is to point out all of the things that the defendant did right. Like this:
Q How long did you follow the defendant's car?
A About a half mile before I pulled him over.
Q During that time the defendant was not speeding?
Q He was not going abnormally slow?
Q He didn't leave his lane of travel?
A No. He didn't.
Q He didn't interfere with any other traffic on the road?
A No, sir.
Q Once you put on your lights he pulled right over?
A Yes, after a few hundred feet.
Q He parked his car perfectly, didn't he?
A I don't recall.
Q Well, it wasn't standing out in traffic, was it?
Q He didn't hit curb when he parked it?
A I don't recall.
Q Well, you would have made a note of that in your report, wouldn't you?
Q So show me in your report where you noted that the defendant hit the curb.
A It's not in there.
Q So he didn't hit the curb, then.
A No, sir.
The same process can be used on the field sobriety tests. Force the officer to recite all of the things the defendant did right while performing the FSTs.
The Defendant Must Testify
In a regular criminal case the lawyer should always strive to find a way to win an acquittal without having to call the defendant as a witness. But OWI cases are not regular criminal cases.
Everything the lawyer has done to this point in the trial will be for naught if the defendant cannot testify and truthfully tell the jury what he had to drink and to then swear under oath that what he had to drink did not impair his ability to drive safely.
If the defendant cannot do that then there is little chance of an acquittal.
However, logic tells us that most defendants will be able to offer truthful testimony to the effect that in their opinion what they had to drink did not impair their ability to drive safely. Rare is the person who goes out drinking, gets hammered, and then decides to drive even though he knows that he should not. The vast majority of people drive after drinking because they believe they can safely handle it.
Even though the defendant will be subject to a blistering cross-examination the alternative of not testifying is even worse. Spend time preparing your client to testify.
No lawyer wins every OWI case. But if you develop these trial skills will find yourself winning more of the "middle fifteen" than you lose.
__________________________________ Schiro & Zarzynski Personal Injury Attorneys Milwaukee, WI 53203 414.224.0825
"The bully lawyer" _____________________________
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