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Consider first the officer's testimony that the defendant was speeding. One tactic is to ask the officer how many speeding tickets he has issued in his careerand how many of those involved drunk driving. The answer to this last question should be "none," of course, since an officer arresting someone for drunk driving rarely bothers to issue a speeding citation as well. But this simple line of questions presents issues which can later be developed in arguments to the jury.
- If speeding is symptomatic of drunk driving, why has the officer never found speeding to be involved in any of his DUI arrests?
- If speeding is not a symptom, then why was the officer attempting to present it as evidence of intoxication?
- If the defendant was speeding, why wasn't he cited for it?
DUI attorneys must, obviously, keep a tight rein on the officer during cross-examination and not permit the officer to offer explanations. If the subject is not explained in redirect, then the issue should be discussed during argument.
Evidence of speeding can be turned to the client's advantage. This involved leading the DUI officer into admitting that controlling a car requires more coordination and greater judgment as speed increases. Quite simply, driving a vehicle at the speed observed by the officer without having an accident requires considerably greater reflexes, coordination, and judgment than at the legal speed. Thus, the very fact of speeding without mishap is evidence of sobriety. In other words, rather than trying to prove the client was not speeding, counsel should simply accept the fact and turn it to his advantage. The natural tendency of the trial lawyer to contest everything should be overcome; the client is not on trial for speeding.
The next driving symptom almost universally encountered in DUI cases is "weaving." In fact, along with "alcoholic breath," "thick and slurred speech," and "bloodshot eyes," it seems nearly a prerequisite to any arrest for drunk driving. And, without question, there are officers who will add these symptoms to their reports to create the classic DUI scenario. In most cases, however, the officer is honestbut guilty of suggestive perception: once he has decided that the suspect is possibly under the influence, he expects to see the usual symptomsand normal inattentive driving becomes "weaving."
DUI lawyers must develop through cross-examination of the officer that weaving is not nearly as unusual or symptomatic of intoxication as it sounds. The officer should be led to admit that no driver steers a car in a geometrically straight line dead center in the lane; only railroad cars travel perfectly straight. During argument, the jurors should be reminded that even the most sober of them will find that as one drives one is constantly, perhaps subconsciously, correcting course with a back-and-forth motion of the steering wheel. So it is a matter of degreeand of the mechanical condition of the car.