Examination of Arresting Officer

In California drunk driving trials, both the defense and prosecution call witnesses that support each side's theory of the case. The prosecution typically starts by calling the officer who arrested the individual for drinking and driving. This can be a challenging part of the trial for the defense, because the officer is going to offer evidence that is damaging to the defendant's case. However, the knowledgeable DUI / DWI defense lawyers at The Kavinoky Law Firm have the experience needed to lessen the impact of the arresting officer's testimony.

The officer typically begins by testifying about the defendant's driving pattern prior to the traffic stop. This is how the officer establishes that there was probable cause for an arrest. The officer may testify that the defendant was weaving between lanes, driving without headlights, or some other recognized driving pattern of DUI / DWI drivers.

The prosecutor will then have the arresting officer describe the traffic stop. The officer will testify about how the driver responded to the request to pull over and the officer's initial observations when they spoke. These initial observations include whether the officer smelled alcohol, whether the driver's speech was slurred, or any other symptom of intoxication.

The officer will then be asked to describe the driver's performance on a field sobriety test. The officer will testify about any variation between the driver's performance and how the tests are meant to be completed. However, because these tests are designed to be failed, the officer will only describe the things the driver did poorly, leaving out things the driver may have done well. An experienced DUI / DWI lawyer will use an effective cross-examination to bring out aspects of the test on which the driver performed well.

The officer will be asked to testify about any chemical tests that were performed. The officer will then establish the procedures regarding the chemical test and the chain of custody of any sample (blood or urine, because breath samples cannot be retained) that were taken from the driver. Finally, the officer will describe the chemical test results as evidence of the driver's blood alcohol content (BAC).

Finally, the officer will describe the driver's arrest. He or she will testify about the basis for the arrest - the officer usually says it was based on the "totality of the evidence" - and any statements made by the driver.

Once the prosecutor completes the arresting officer's direct examination, the defense attorney can begin cross-examination. An experienced DUI / DUI lawyer will take this opportunity to poke holes in the prosecutor's case. Cross-examination in a drunk driving case is not so much an examination as it is an opening for the defense lawyer to testify.

The most effective cross-examination takes place when the defense lawyer delivers questions in a manner that forces the officer to give yes or no answers. This style of questioning allows the defense attorney to testify to what he or she wants the jury to hear.

Along with jury selection, cross-examination of the arresting officer is the most critical aspect of the trial for the defense. Scoring points against a prosecution witness, rather than with a defense witness, is an effective strategy to win over the jury. In a juror's mind, witnesses typically agree with the side that called them to testify. If the witness agrees with the opposing side, the jury really pays attention.

The practiced DUI criminal defense lawyer will use aggressive cross-examination techniques to draw out things that the driver did correctly when pulled over and arrested. For example, the police officer may have noted in the arrest report that the defendant was speeding and ran a red light prior to being pulled over, but won't mention that the driver signaled before pulling over, or that he or she responded immediately to any requests for documents.

The officer will always mention details such as the driver's red, watery eyes, slurred speech, or an odor of alcohol on the breath, but will not volunteer any information that indicates that the driver acted in any manner consistent with a sober person. The officer will always note even the smallest errors committed on a field sobriety test, even if these things do not indicate that a person is under the influence. Cross-examination of the officer is the time when the defense attorney can draw out positive information that will bolster the defendant's case and discredit the officer.

Cross-examination is one of the most important aspects of an effective drunk driving defense. An experienced California criminal defense attorney who focuses on DUI / DWI defense will use aggressive cross-examination techniques to minimize the impact of the arresting officer's testimony and create reasonable doubt in the driver's guilt.