Should the Defendant Testify?

Both the prosecutor and the defense attorney call numerous witnesses in a California DUI / DWI trial. In fact, the defense lawyer may call the defendant to the stand to testify. Whether to ask the defendant to testify is an extremely difficult question for a drunk driving criminal defense lawyer, and the correct answer depends on the facts of the case.

In many cases, it's useful to have the defendant explain how an injury or illness, such as emphysema, chronic acid reflux, or diabetes could have impacted the results of a chemical test. The defendant's testimony might excuse a chemical test refusal or help explain why the driver's blood alcohol content (BAC) reading was artificially high.

Sometimes it's helpful to have the accused driver testify merely so that they can make a connection with the jury. Jurors are instructed that they may not interpret the fact that the defendant did not testify as a sign of guilt, but jurors are human, and sometimes cannot put their personal feelings aside. Therefore, jurors may conclude that the defendant didn't take the stand because he or she is guilty. An experienced DUI / DWI criminal defense lawyer will weigh the risk of having the defendant testify against this possibility.

However, there are also excellent reasons to keep the accused driver off the stand. Some defendants are better off not being cross-examined by the prosecution. Some drivers might be nervous, emotional, or less than truthful on the stand. This allows the prosecutor to score points against the defense's own witness.

In some cases it's critical that the accused driver not testify because he or she was extremely intoxicated at the time of arrest, and may not remember many details about the encounter with police. Such a driver can derail a carefully crafted defense strategy and spell a guilty verdict for the defendant.

Experienced California DUI / DWI defense lawyers know when to have defendants testify and when they shouldn't. In cases where it's a good idea to have the driver take the stand, a skilled defense attorney will prepare that testimony carefully and thoroughly, to help the defendant avoid mistakes and anticipate any attacks from the prosecution on cross-examination.