Welcome back to the DUI Trial Lawyers Academy. This podcast is brought to you by silvaandsilvalaw.com, great lawyers helping great people, and now, for your host, a sought-after speaker, avid mountain bike racer, and renowned DUI trial lawyer, Patrick Silva.
Welcome back to the DUI Trial Lawyers Academy. This is episode 002: Don't Get Mad, Get Even. How many times have you been in a trial, the officer takes a stand, looking crisp. He's got his uniform on, buttoned up, his medals on, his nice patrol hat underneath his arm, gun on his side. He walks up, and he raises his hand. The bailiff says, "Do you swear to tell the truth, the whole truth, nothing but the truth, so help you God?" "I do," as he looks over to the jurors and gives a smile, and through the course of your cross-examination, and you might've found this out before discovery. He says, "Well, yes, I've been the recipient of the Mothers Against Drunk Drivers award."
Now, at this point you're thinking, "This is good for me? It's as bad for me?" Of course, the DA, district attorney or the prosecutor, is trying to show that this guy is a very high-qualified DUI police officer. How about if we turn the tables on him, and we use that MADD award against him? Let's use the MADD award to show that the officer actually has a motive to arrest as many people as he can, whether he's right or whether he's wrong.
What follows are some questions that help us get to that point. "Officer Jones, tell us, how many different years have you received this MADD award?" From my perspective, the more the better because each year he goes back, he likes what he saw, he likes the way he feels. "Now, Officer Jones, tell me how many DUI arrests did you have to make an order to qualify for this MADD award?" The reason we're asking this question is we're trying to show that the officer has a set specific number of arrest, i.e., a quota that he needs to achieve in order to get back to that gala, that party known as the MADD award.
"Well, officer Jones, isn't it true that you need a minimum of 100 DUI arrests in order to receive the MADD award? Is that right?" This question we're just trying to tie him down to a specific number. If you talk to any of the DUI cops, they're going to tell you there's something called a double century. That's when they hit 200. Many of them shoot for that number, so they have a specific goal.
"Now, the year that you arrested my client, Jose Cuervo, you had 125 DUI arrest. Is that true? Out of those 125 DUI arrest, not everybody was actually over the legal limit, isn't that right?" What we're trying to establish here is that not everyone the cop arrested was actually DUI or driving impaired. Whether he admits this or not, it's going to help us tie it in for our closing argument, but listen to the answer that the officer gives you because from that answer, you can go a different direction and dive a little deeper into questioning.
"Well, Officer Jones, out of those 125 DUI arrest, was everybody driving impaired?" In those states that have a driving impaired statute, that's what we're focused on here. In California, we happen to have driving over the legal limit 0.08 and driving impaired to an appreciable degree. "Officer Jones, you made some DUI arrest where the person you arrested did not do any of the roadside breath test. Isn't that right?" What we're trying to establish here is that the officer had to make a judgment call and make an arrest when he did not know any numerical numbers of a breath test. The reason that this is important is that it's going to go to show that the officer can be wrong because not everyone that he arrested was over the legal limit.
How do I know this? Well, let's go through our discovery process. When I get a blood-run sheet, which tests my client's blood, I'll see approximately 36 other arrestees that had their blood tested that same night or within a night or two. Well, I see my client's blood number, whatever it is .1518, .20. Then I see a lot of other ones, .02, .04, .06, and then only testing for blood. There's no indication that those tests had a second run for drugs. I've seen .05s. That means they're arresting people that have a very, very low limit. What does that mean? Well, it means that they took them off the street, and then they let the district attorney deal with it, let the DA decide if they're going to file or not.
"Officer Jones, you actually arrested some of these folks on the conclusion that they were DUI because they failed the field sobriety tests. Isn't that right?" Why is this important? This question is important because when we get into a later cross-examination theme using the NHTSA manual as our basis to tie the officer down that he has to do the test right, we can go back and say, "Well, if he didn't do the test right, then his conclusion was wrong."
"Officer Jones in 2019, out of these hundred and 25 arrestees that you made, some of these folks were actually not over the legal limit, were they? Officer Jones, if you arrest a person, and their blood or breath comes back below a 0.08, does that mean you made a mistake?" You can expect that the officer's going to dance around this question. You have to be ready at this point because what he's going to say is that he had no indication that Jose Cuervo was over the legal limit, but what he's going to say is that he thought he was driving impaired, and he's going to try and use that as part of his basis for the arrest, his driving pattern, plus his conclusion that the person failed the field sobriety test.
You could follow it up with another interesting question. "Well, Officer, if Jose Cuervo was not over the limit, and your administration of the field sobriety tests were given incorrectly, would you still have a valid arrest?" Again, the officer will probably dance around this question and say he arrested him for his driving performance and the performance on the field sobriety test. Well, then you could follow up with another question.
"Well, Officer, if Jose Cuervo was not driving impaired to an appreciable degree, and your administration of the field sobriety tests were given incorrectly, would you still have a valid arrest?" What you've done is you've taken both attempts at the arrest, the 0.08 and bad driving, away from the officer. Then what you're going to do is you're going to go into section eight of page 13 of the NHTSA manual, and in essence, section eight, page 13 states that in order for the officer to rely on the clues that he sees, he needs to give the test correctly, he needs to use the correct clues to interpret, and if he doesn't, what he sees may be compromised. That's a big deal here.
Then we could hit the officer with a few shotgun questions. "Well, Officer, out of those 125 DUI arrest that you made for getting your MADD award, how many were not over the legal limit?" He's not going to know the answer, but the importance is getting the question because you're getting the question into the juror's mind. "How many were wrongfully arrested?" He's not going to know. "How many did you misinterpret the clues on?" He's not going to know. "How many did you jump to a conclusion on?" He won't know. "How many had physical defects that you misinterpreted as being impaired?" Again, listen to his reply. He might give you something that you can go down a different avenue and get a little deeper into the cross-examination.
Now, what about motive? We talked about motive. "Well, Officer, what type of award did you receive for MADD? Was it a plaque, a certificate? What exactly was it?" Right now, we're trying to show that he had a motive for hitting his 100, 200 DUI arrest. "Did you receive a free dinner? Did you like that? What did you eat? You had to travel. You went up to where? Sacramento? That's at least a five-hour drive. Did they put you up in the hotel? Did they comp your stay? Did they give you a gift certificate? Did you receive any money? Did you take your family? You actually felt good. It felt good to be recognized for the work you do. Tell me, Officer Jones, is it true that the more DUI arrest you make, the greater chance you have of getting something free from MADD?"
Again, folks, a lot of times, it's not going to be the answer that matters, but it's going to be the body language, his tone of voice, and the way he answers it's going to be important to the jurors. "Officer Jones, MADD gives this award based on the number of arrests, not on the number of successful convictions, right?" This question's going to be I'm going to say a home-run question because no matter what he says, you are definitely going into a deeper dive on the questioning because what's he going to say? "What? I don't know." He's not going to know how many convictions he's had.
"Officer Jones, so what you're telling us is that you get credit towards your MADD's arrest even when you make a bad arrest. Is that right?" Again, it's the question that matters. Officer Jones's MADD, an incentive to arrest every DUI suspect even if they're not legally DUI. The question matters. Follow up. See where he goes. "Officer Jones, well, did you like receiving the award for MADD? Did you like the dinner? Did you like the ceremony? Did it make you feel good? Did it make you feel special? Did you like the recognition?" You got to be careful here. He might come back with, "You know what? I like getting recognized for taking drunks off the road and making the streets safer." Be ready for a comeback on that.
"Well, officer Jones, we're in 2020. How many DUI arrest have you made this year to help you get a MADD award? Do you hope to get another MADD award, Officer Jones?" This question's important because, again, it just shows his mindset. "Would you like to get another free trip from MADD? Would you like to get more comp, like to feel good again, right? How would you feel if you received a MADD award that was based on one, two, or a dozen of your arrest where the defendant was never convicted of a DUI?" This is going to be a big question for you because no matter what he answers, you're going to have followup, so listen carefully.
"So what you're telling us, out of those 125, we don't know how many were never convicted, right?" Of course, he's going to say, "Right," "And you received recognition for doing a job based on bad arrest, faulty work, or whatever." Think we've all heard the saying "death by a thousand razor cuts." These are just a little bit of what goes into a good cross-examination. Listen to the officer's response.
If you like this information, please give me a five-star review. I look forward to the next podcast and get in the ring, put on the boxing gloves, and duke it out. Until next time, this is Attorney Patrick Silva, the DUI Trial Lawyers Academy. Have an awesome day.
Thank you for listening to the DUI Trial Lawyers Podcast, this episode brought to you by silvaandsilvalaw.com.
Who do you want as your Attorney? The Master or the student? Patrick Silva has 18 years of DUI experience, he has been published in DUI reference books, he has spoken in front of 100's of attorneys at conferences, taught classes to Lawyers on his secrets and strategies, and has a nationally listened to podcast dedicated to teaching other DUI Lawyers How To Win.
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