Drunk driving cases

• Author: Timothy E. Zerillo
• Pages: 303-354

DRUNK

DRIVING CASES

8-1

CHAPTER 8

DRUNK DRIVING CASES

Drunk driving cases are among the most commonly charged criminal cases. As a result, they have

become a somewhat specialized practice area, with specialists in drunk driving law spending their

entire careers on this one type of crime. That is not a bad thing. There are plenty of intricacies with

drunk driving cases and a constant f‌low of clients.

Drunk driving presents an interesting intersection of science and law. Those who truly specialize in

drunk driving cases (unlike myself) become as prof‌icient in the chemistry as a chemist. They understand

toxicology like a toxicologist. They know this area backwards and forwards.

Since my practice does not specialize in drunk driving cases, I have approached them from a different

perspective. I hope my strategies and experiences are helpful to you.

I. ELEMENTS AND COMMON SCENARIOS

§8:01 The Elements

§8:02 The Non-Criminal Drunk Driver

§8:03 The Criminal Drunk Driver

§8:04 Alcohol Counseling/Rehabilitation

II. CLIENT QUESTIONS AND MATERIALS

§8:10 The Initial Client Meeting

§8:11 FORM 8-10 Intake Questions

III. STRATEGIES AND TACTICS

A. Preservation of Evidence

§8:20 Put Law Enforcement on Notice

§8:21 FORM 8-20 Notice to Preserve Electronic Evidence—Drunk Driving Cases

B. Qualif‌ications of Arresting Off‌icer and Breath Test Operator

§8:30 Don’t Assume Qualif‌ications

§8:31 FORM 8-30 Letter Requesting Breath Machine Operator’s Credentials

§8:32 The Response

C. The Arresting Off‌icer’s Story

§8:40 Talk to the Off‌icer

§8:41 License Suspension Hearing

D. Prior Convictions

§8:50 Strike Prior Convictions

§8:51 FORM 8-40 Motion to Strike Prior Convictions

DRUNK

DRIVING CASES

Defending Specif‌ic Crimes 8-2

E. Field Sobriety Testing

§8:60 The Standardized Tests

§8:61 Horizontal Gaze Nystagmus (HGN)

§8:62 Divided Attention: Walk and Turn and One Leg Stand

F. Breath Testing

1. Basics

§8:70 Breath Machines Measure Breath Alcohol

§8:71 How Do I Read This Test Result?

2. Attacking Breath Tests

§8:80 The Observation Period

§8:81 The Blood Breath Partition Ratio

§8:82 Mouth Jewelry

§8:83 GERD

§8:84 Machine Margin of Error

§8:85 Machine Calibration Issues and the State’s Chemist

§8:86 FORM 8-50 Letter to State’s Chemist Requesting

Testing and Calibration Records of Breath Test Machine

§8:87 Rising Alcohol Defense

§8:88 Aff‌idavit of State Chemist

§8:89 FORM 8-60 Sample Aff‌idavit of Chemist

G. Blood Testing

1. Basics

§8:100 What Is Blood?

§8:101 Gas Chromatography Basics

§8:102 Enz ymatic Testing Basics

2. Attacking Blood Tests

§8:110 Enzymatic Testing

§8:111 Hemolysis

§8:112 Fermentation

§8:113 Chain of Custody

§8:114 Qualif‌ication Issues

IV. MOTIONS

A. Discovery

§8:120 Blood Testing

§8:121 Breath Testing

§8:122 Expert’s Report

§8:122.1 FORM 8-65 Letter Requesting Blood Draw Discovery

§8:123 FORM 8-70 Discovery Motion—Blood Draw

§8:124 FORM 8-80 Discovery Motion—Breath Test

§8:125 FORM 8-90 Motion for Preparation of Reports By Expert Witnesses

B. Motion to Suppress Blood Testing

§8:130 Birchf‌ield v. Nor th Dakota

§8:131 Missouri v. McNeely

C. Motions in Limine

§8:140 Highlighting the Off‌icer’s Inadequacies

§8:141 FORM 8-100 Motion in Limine to Exclude the Off‌icer from Testifying Related to HGN Testing

§8:142 FORM 8-110 Motion in Limine to Limit Testimony to Performance of SFT’s

D. Sanctions and Dismissal

§8:150 When Should You File?

§8:151 Choosing an Appropriate Sanction to Request

§8:152 FORM 8-120 Motion for Sanctions/Motion to Dismiss for Failure to Preserve Evidence

DRUNK

DRIVING CASES

8-3 Drunk Driving Cases

V. TRIAL

A. Opening Statement

§8:160 My Approach

§8:161 Sample Opening Statement (Post Accident Case)

B. Cross Examination of Arresting Off‌icer

§8:170 Key Points

§8:171 Client’s Driving

§8:172 The Stop

§8:173 Inside the Vehicle

§8:174 Producing License and Registration

§8:175 Exiting the Vehicle

§8:176 Client’s Cooperation on Field Sobriety Tests

§8:177 Testing Must Be Administered Correctly

§8:178 Walk and Turn Test

§8:179 HGN Test

§8:180 One Leg Stand Test

C. Cross Examination of Government Expert on Breath Testing

§8:190 Key Points

§8:191 On the Government’s Team

§8:192 Partition Ratios

§8:193 Mouth or Stomach Alcohol

D. Closing Argument

§8:200 My The Approach

§8:201 Sample Closing Argument