SPECIAL TECHNIQUES IN THE PROSECUTION AND DEFENSE OF DWI CASES (FROM ASSOCIATION OF TRIAL LAWYERS OF AMERICA COUNSELING CASSETTES, V 8B - CONTEMPORARY CRIMINAL DEFENSE TECHNIQUES, 1978 - SEE NJC-57282)

• NCJ Number: 57287
• Author(s): J D LOVETT
• Date Published: 1978
• Length: 0 pages
• Corporate Author: Assoc of Trial Lawyers of America
• Publication Format: Audio Recording
• Language: English
• Country: United States of America
• Note: *This document is currently unavailable from NCJRS.

Annotation

COUNSELING METHODS FOR DEFENSE ATTORNEYS ARE DESCRIBED WITH APPLICATION TO CASES INVOLVING DRIVING WHILE INTOXICATED.

Abstract

THE USE OF SOPHISTICATED BREATH-TESTING EQUIPMENT AND THE RELIANCE ON EXPERT WITNESSES HAS COMPELLED DEFENSE ATTORNEYS TO BECOME AWARE OF THE TECHNICAL AND SCIENTIFIC ASPECTS OF DRIVING WHILE INTOXICATED. MANY STATES HAVE INCREASED THE PENALTY FOR DRUNK DRIVING, THEREBY INCREASING THE LIKELIHOOD THAT CLIENTS WILL WISH TO DEFEND THEMSELVES AGAINST THE CHARGE. MOST STATES ALSO HAVE IMPLIED CONSENT STATUTES WHICH REQUIRE A DRIVER TO SUBMIT TO A BREATH TEST OR FORFEIT THE DRIVER'S LICENSE. A KEY TO THE SUCCESSFUL DEFENSE OF AN INTOXICATED DRIVER IS FOR THE CLIENT TO SHOW THAT AT THE TIME OF THE ARREST HE WAS CAPABLE OF ARTICULATE CONVERSATION AND NORMAL WALKING. ALTHOUGH THE MIRANDA WARNINGS ARE GENERALLY REQUIRED BY STATUTE AND CASE LAW BEFORE THE POLICE MAY CONDUCT A CUSTODIAL INTERROGATION, LESSER OR NO WARNING IS FREQUENTLY GIVEN TO DRIVERS PRIOR TO SUBMISSION OF THE BREATH TEST. THE DEFENSE COUNSELOR SHOULD INTERVIEW THE CLIENT BY HAVING THE CLIENT RECONSTRUCT THE EVENTS PRIOR TO THE ARREST, MAKING NOTE OF THE AVAILABLE WITNESSES TO THE CLIENT'S DRINKING. DURING VOIR DIRE AND JURY SELECTION, THE COUNSELOR SHOULD CONSIDER THE RELIGIOUS AND POLITICAL BACKGROUND OF THE COMMUNITY TO SCREEN OUT JURORS WITH PRECONCEIVED NOTIONS AGAINST DRINKING. PROSPECTIVE JURORS SHOULD BE INSTRUCTED THAT DRIVING AFTER DRINKING IS LEGAL, THAT ONLY THE INTOXICATION CREATES AN OFFENSE BY THE DRIVER. (TWK).