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The Linder Firm July 23, 2021

The Driving While Intoxicated trial is usually a special situation in which you will have carefully exercised your jury strikes and obtained a jury containing several individuals who have committed the offense with which your client is now charged. The most important thing you can accomplish in your defense case is to help the jury identify with your client so they will be inclined to give your client a break if the case is close. There are many ways to accomplish this task. Perhaps the best way is to have your client’s wife children on the front row of the courtroom throughout the trial. This is not always possible. Sometimes the only way you can gain jury empathy is to put your client on the stand and subject him or her to the cross examination of the prosecutor.

When you have a likeable, well-educated client, the testimony of the client presents a great opportunity to engender good feelings in the jury box. However, even then, it is very important that you prepare your client for both direct and cross-examination so that your client will not be ambushed by any surprises while on the witness stand. Preparing your client for direct examination is the easy part. After your investigation, you will know exactly what information you wish to elicit. Cross-examination is always the toughest part, particularly if your client is nervous, shy or poorly educated. Then you must spend the time necessary to prepare your client for cross examination and act out a cross-examination conducted by you or an associate to prepare your client for the rough treatment he will receive.

Testimony without Cross-Examination

Sometimes, your client hasn’t the mental equipment to survive cross-examination. At other times, you can’t hide the fact that he is not a likeable or sympathetic person. For whatever reasons, some clients must be kept off the stand. When you do not wish to put your client on the stand, it is often possible to have the client testify “by proxy”. That is, elicit from the officer the beneficial things your client said at the time of his arrest.

In your first interview you should learn everything your client remembers about his conversations with the arresting officer. Before time is allowed to pass, request that your client write you a narrative of the entire detailed conversation that took place during the period of time from the initial stop until the final incarceration. Most individuals in cases that will be tried made a verbal claim of innocence and sobriety when arrested. Many persons have related to the arresting officer what they claim to have consumed and where and when the alcohol was consumed. By eliciting this information from the officer it may be possible to present the Defendant’s story of sobriety without subjecting your client to cross-examination. Sometimes an officer may be lead into agreeing that a certain conversation transpired even though the officer’s memory is hazy and the arrest report or field notes do not relate the conversation. Sometimes an officer will admit that a statement might have been made by your client, even though the officer has no specific memory of the statement. Although obtaining your client’s story from the arresting officer could be blocked by a hearsay objection, there are several possible responses to the objection; i.e. (1) The conversation is admissible under the rule of optional completeness because the state has elicited part of the conversation in their case in chief; (2) The conversation may be deemed admissible not for the purpose of showing the truth of the statement but to show that the Defendant was able to speak clearly and be easily understood after the officer has testified that the Defendant had slurred speech. Your ultimate goal would be to argue to the jury as follows:

“Ladies and gentlemen you promised me on voir dire that you would not expect my client to testify since we have no burden of proof. You know exactly what my client would say if he had testified because Officer Jones has told you that my client explained that he had three glasses of wine at Bennigan’s Restaurant between the hours of 7:30 and 10:45. There has been absolutely no evidence which contradicts my client’s statement to the officer. Further, the technical supervisor testified that three glasses of wine consumed in a three and one-half hour period would not cause a person of my client’s size and weight to lose the normal use of his mental or physical faculties. So you know what Mr. Smith would have said even though you did not hear him in person. Also, you know what his appearance was, from the videotape.”

By skillfully cross examining the arresting officer, you may be able to elicit very beneficial information which can be characterized in your closing argument as original, truthful and uncoached by an attorney. This can be sometimes as beneficial as having had your client testify. In order to pull it off, you must cross examine with an authoritative demeanor and create the appearance that you know exactly what was said by your client because your client had a clear memory, unaffected by alcohol.

Preparing for Defendant Testimony

When you have a client with no criminal record who is capable of presenting his story and avoiding destruction on cross-examination, the sincere testimony of your client can be the best possible source of reasonable doubt, and jury empathy.

Your client probably has never testified before. It is absolutely paramount that you spend the time to prepare your client to cope with a tough cross-examination. Remember, the prosecutor has been salivating from the moment that it was obvious that your client was going to testify. Even the best educated and brightest Defendant cannot hope to survive cross-examination without being adequately prepared. First, your client must be aware of the many standardized and generic questions which prosecutors have been using effectively since the dawn of time. Your client must be prepared to answer these questions in a manner that will be seen as truthful and sincere.

It will be necessary to conduct a mock cross-examination possibly two or three times in order to adequately prepare your client. You must prepare your client to think carefully before giving an answer and to allow you time to make an objection if necessary. Also, educate your client to listen to your objection so that if it is overruled the client will nevertheless answer the question in a beneficial manner, if possible. Advise your client to address the answers directly to the prosecutor or to the jurors and to avoid looking toward the defense table for assistance or cues.

If your client has ever been arrested for anything, you must carefully prepare him to admit only the absolutely admissible convictions and to avoid blurting out some brush with the law which is inadmissible. In this regard, comb your client’s background carefully in order to determine what impeachment will be admissible. Prepare your client to admit only the admissible and to avoid any mention of inadmissible events such as arrests, acquittals, etc.

Direct Examination of Your Client

Your goal on direct examination of your client is to present a coherent and believable account of the events causing the arresting officer to mistakenly arrest your client. It is vital that your client be instructed at your first meeting to write a lengthy report for the file detailing everything that happened in the hours prior to the arrest and during the arrest and incarceration procedure. Instruct your client to omit no detail and to bring you at least seven or eight pages detailing what happened prior to the stop, during the initial stop, in the police car, in the intoxilyzer room, in the property inventory stage, and right up until the time of your client’s release from jail. The best way to establish your client’s credibility is to demonstrate that the client has a much greater command of detailed facts than does the arresting officer. Many jurors will doubt that an intoxicated person could have a detailed memory of the physical features of the roadside, police car, jail book-in room, etc. Photographs of the scene of the arrest will enable your client to describe the surroundings with much greater accuracy and clarity than the arresting officer will have. Your client should be able to correct the officer’s mistakes about the physical surroundings of the arrest, the roads travelling to the stop., and other details about the physical surroundings.

Your client should be able to present a coherent and credible account of the events which caused him to attract the attention of the arresting officer. Whether his car has faulty steering, he was dialing a cellular telephone, a cigarette ash had fallen into his lap, or whatever the reason that the automobile became conspicuous. It is not necessary to convince the jury that his driving was perfect. Obviously, something drew the attention of the police officer to your client’s vehicle. There are many reasons or excuses for bad driving, including inattentiveness, fatigue, distractions, or poor mechanical equipment. It is important, however; that your client establish that the alcohol consumed did not play any role in the bad driving. The prosecutor will seek to, “get the car drunk”. You must demonstrate that even if the, “the car is drunk”, the client is not. The most effective method of establishing that the client only had a reasonable and legal amount of alcohol is to make reference to the allowable limits of alcohol consumption propounded by the Department of Public Safety. A former client who was a bartender was able to win his case based on his knowledge of the chart prepared by the Department of Public Safety showing how many drinks can be consumed in a given period of time before reaching the .10 level. His testimony that he had memorized and religiously followed the guidelines of the DPS convinced the jury in Collin County that he was not intoxicated. Your client can very easily memorize the important factors in the alcohol intake chart and demonstrate to the jury that he drank an amount within the guidelines established by the DPS. It is important that your client correlate the amount of alcohol consumed with the time period during the consumption and up until the time the arrest was made and the breath test, if taken, was administered. Consumption of a quantity of alcohol immediately before embarking on a short automobile journey may be a good foundation for extrapolation testimony by a technical supervisor or other expert witness. It can often be shown that the alcohol content of your client was substantially higher when he took a breath or blood test than it would have been when he was driving.

If it can be shown by credible testimony or by bar or restaurant receipts, it may be possible to demonstrate that the amount of alcohol consumed by your client could not have resulted in an illegal alcohol level. Rather than attempting to specify the exact hour and minute of each drink, it is more believable and realistic that your client be able to specify the exact number of drinks and the time period from the beginning of the first drink until the time of the arrest. An attempt to be overly precise in recalling drinks and times can destroy your client’s credibility. If your client does not display obvious symptoms of intoxication on the videotape, the jury will be willing to accept his sworn testimony as to the amount of alcohol he consumed.

Introducing Your Client to The Jury

Always begin your client’s testimony with a detailed introduction by question and answer so that the Jury will see and know your client as a living, breathing human being. You should always include details of the client’s family, how many children, their names, where they attend school, etc. Information about church attendance, hobbies and charitable or community work is beneficial. Never overlook the introduction of our client’s military service.- A jury will give a decorated veteran about two extra degrees of latitude. Have your client explain his job, occupation, or profession, and relate what negative impact a DWI conviction or probation would have on his employment. When possible, inject the facts that your client was totally shocked and astounded at the rude treatment received at the hands of the officers, having never before been arrested in his life. Without being overly dramatic, elicit from your client all details of rude or brutal treatment by any officer including overly tightened handcuffs which caused temporary or permanent numbness of the hands and wrists. Juries do not like to see non-violent persons mistreated by officers.

In cases of test refusal, de-fuse the subject before the prosecutor gets hold of your client. Your client must give a reasonable explanation for refusing the test, usually, the reason the test was refused was something other than the simple fear of a failing score. Most individuals have heard horror stories at one time or other of the inaccuracy or inadequacy of breath testing. Your client must be prepared to explain to a jury that the test was not refused for fear of disclosing the true alcohol level. One of the best possible explanations for test refusal is that the DWI statutory warning (DIC-24) is confusing and contradictory. Your client can explain that the information in the statutory warning did not in any way clarify how a person would be entitled to a hearing and what the purpose of the hearing would be if the license suspension was “automatic”. The contradiction inherent in the phrase, “automatically suspended upon notice and hearing” is the type of legalese that would leave most attorneys confused. The information about a hearing on the suspension or denial leads arrested persons to believe that there is nothing automatic about the suspension and that there is other possible recourse rather than having the license suspended. Further, there is rarely fever any incentive given for the taking of a breath test. Suspects are not informed that the passing of the test will result in their release, non-filing, or any other tangible benefit. Your client must explain why it did not appear to be reasonable or beneficial to engage in the testing procedure. If your client ever mentioned “lawyer” on the video, let him testify that he knew that MIRANDA entitled him to advice of counsel before answering any questions, and “will you take the test” is definitely a question.

When Did Your Client Stop Beating His Wife?

The obvious answer to the question above is, “I never started”. The use of this type of accusatory or judgmental question can be anticipated in all cases. Prosecutors have used the questions covered herein, or variations of these questions, forever. They are used because they are effective and an unprepared Defendant will almost always give a prejudicial answer. It is your duty to instruct and advise your client so that he will be prepared for the loaded questions and be able to give reasonable and well considered answers. Point out to your client throughout your trial preparation that you are not suggesting or implying that untruthful answers should be given. There is a huge difference between an untruthful answer and an answer which is truthful but carefully crafted to avoid giving the wrong impression. Your client is dealing with a prosecutor who is schooled in the art of creating evidence from the smallest nuance or verbal mistake made by your client. Unless you prepare your client for specific questions he will confront, you are throwing him naked and defenseless into the jungle. Here are some of the typical prosecution questions and tactics along with recommendations for how your client can successfully respond:

PROSECUTORS QUESTION: “Why do you drink and drive – don’t you know that it is dangerous?”

A VERY HARMFUL ANSWER WOULD BE: “All of the good night clubs are in Deep Ellum and I have no other way to get home at closing time.”

A TRUTHFUL AND CAREFULLY CONSIDERED ANSWER TO THIS QUESTION WOULDBE: “I understand that it is perfectly legal to drive after drinking so long as I have not had enough alcohol to impair my judgment or ability.”

Both answers might be equally true, but one answer would be devastating and the other harmless. Your client must be educated and given a fair opportunity to give a truthful answer that will not be harmful to his case,

Here are some other classical prosecution questions along with the poorly considered answer and the carefully considered answer which might be given in response.

QUESTION: “What is your definition of intoxicated?”

POORLY CONSIDERED ANSWER: “Intoxicated would mean you could not stand up or could not talk.”

CAREFULLY CONSIDERED ANSWER: “Intoxicated means that you have lost some of your normal abilities to drive safely or perform some activity properly.

QUESTION: “How much alcohol does it take to get you intoxicated?”

POORLY CONSIDERED ANSWER: “Oh, probably 9 or 10 beers.” CAREFULLY CONSIDERED ANSWER: “That would depend on what period of time the drinks were consumed in and how strong the drinks were.”

QUESTION: “Are you telling this Jury that you never been intoxicated?”

POORLY CONSIDERED ANSWER: “That’s right, I have never been intoxicated.”

CAREFULLY CONSIDERED ANSWER: “No, I am not saying that. There have been occasions when I am sure that I was intoxicated, but I have had a designated driver or I would call a cab rather than take a chance on driving while intoxicated.”

Many people are acquainted with a victim of an intoxicated driver. This presents an opportunity for a very effective answer to the question such as, “I lost a close friend in 1992 who was hit by a drunk driver. Since then I always make it a point to avoid drinking enough to cause me any problem”.

QUESTION: “What type of liquor do you normally drink?”

POORLY CONSIDERED ANSWER: “I like Schlitz beer and Canadian Club whiskey.”

CAREFULLY CONSIDERED ANSWER: “That depends on the social situation. I sometimes enjoy cold beer, and sometimes mixed drinks or wine if they are being served.” (By using brand names your client will sound like a habitual or regular drinker).

QUESTION: “You have told us that you had four drinks on the night you were arrested. Would you have four drinks just before you had to make an important business decision?”

POORLY CONSIDERED ANSWER: “No, I guess I would not”.

A CAREFULLY CONSIDERED ANSWER: “No, I would not plan to drink four drinks before making a decision. But if I had consumed four drinks in the same time period as the night in question and then was required to make an important decision, I am confident that the alcohol would not have affected me or my decision making capacity in any way.” (Once again, it is important that your client express his knowledge of the metabolism rate of alcohol so that he can explain that he was drinking at a rate which did not permit a buildup of alcohol in his system to point where he would be mentally affected.”

QUESTION: “Is it true that the alcohol you consumed that night caused you to weave out of your lane and attract the attention of the officer?”

POORLY CONSIDERED ANSWER: “Well, perhaps I would have been a bit more vigilant if I hadn’t been drinking”

CAREFULLY CONSIDERED ANSWER: “No, I weaved when I reached for my telephone and that would have happened even if I had not been drinking”

QUESTION: “Isn’t it true that you are the worst judge of whether or not you are intoxicated?”

POORLY CONSIDERED ANSWER: “Well, yes I suppose that may be true”

CAREFULLY CONSIDERED ANSWER: “No, I believe that I would notice the onset of intoxication in my mental processes and in my motor skills long before it would be noticeable to anyone else” Even though I think it is obvious that an individual who is drinking would notice the onset of intoxication, many defendants answer this questions without thinking and give away the credibility of their defense by conceding that another person would be a better judge of their sobriety. Do not let your client give the State this particular club to beat you over the head with.”

QUESTION: “Why were you unable to say the alphabet when the officer gave you the field sobriety test?”

A CAREFULLY CONSIDERED AND TRUTHFUL ANSWER: “Having never been arrested before, I was extremely nervous and scared. I did not know what would happen to me, or if I was about to be locked up. I was so scared that I am surprised I could say anything at all. You cannot believe how frightening it is to be stopped and arrested as I was.”

QUESTION: “What are your symptoms when you are intoxicated?”

POORLY CONSIDERED ANSWER: An answer which repeats the observations that the officer has earlier testified about such as blood shot eyes, unsteady balance, or slurred speech

A CAREFULLY CONSIDERED ANSWER: The Defendant should give a truthful answer without repeating the alleged symptoms which were observed by the officer. In fact, most intoxicated persons cannot observe their eyes and would not detect their own red. A reasonable answer would describe how the client believes his mood is altered, etc. Another truthful and reasonable answer might be, “I cannot tell you what I would look like since I am not on the outside looking in”. (If your client repeats the symptoms described by the officer, he is opening the door to the argument that it is more than just a coincidence that the officer observed the exact symptoms that the Defendant admits are visible when he is drinking).

QUESTION: “Isn’t it true that you have rehearsed your testimony with your attorney.”

A CAREFULLY CONSIDERED ANSWER: “No I won’t say that we have rehearsed it, but I told my attorney that I was nervous and scared and he tried to give me an idea of what would happen to me when I got on the witness stand. Obviously, we have discussed all of the facts of this case in great detail. How else to you think my attorney would prepare for trial?”

QUESTION: “You are the person with the most to gain by lying to this Jury, aren’t you?”

WELL CONSIDERED ANSWER: “I believe the penalty for perjury is worse than the penalty for DWI. Before I would commit perjury, I would just pay the fine and accept the probation.” (This answer also conveys to the Jury that the State has offered a plea


Sobriety witnesses must be prepared as carefully as your client was prepared. Always meet with all of the witnesses together so that when one of them recalls details the memories of the others may be jogged to remember the same fact; or in many cases in order to correct a mistake or lapse in the memory of one of them. We all know that the state prepares its case with the witnesses all in a room together, and we are sadly remiss if we do not do the same. The witnesses you bring will not be beneficial if they create discrepancies which will be used by the prosecutor to totally discredit them, You must cover all of the details and also anticipate a vigorous cross-examination by the prosecutor in order to create discrepancies and thereby discredit your sobriety witness. A defensive witness who is going to testify about the amount of alcohol consumed by your client must be totally prepared to give a believable explanation for why he was counting your client’s drinks. A possible explanation might range from (a) The witness was the host and mixed all of the drinks consumed on the occasion, (b) There was only one six pack or twelve pack which was shared by the Defendant and the witnesses, (c) The witness paid the bar tab and possibly still has the receipt to document what was consumed and by whom, or (d) The Defendant was the designated driver for the evening and everybody was observant of the amount that he or she consumed due to their responsibility as designated driver. Do not hope that your sobriety witness will make a favorable impression on the

Jury if he does not have a solid factual basis for testifying as to what the Defendant had to drink.

The oldest trap known to mankind is for the defensive witness to be asked, “How is it that you remember all of these details when you were not subpoenaed until 9 months after the Defendant was arrested?”

TRUTHFUL AND CAREFULLY CONSIDERED ANSWER: “I found out that Bob was arrested the next day and since I knew that he was not intoxicated I assumed from that day on that I would be called upon to testify or give a statement at some point. I talked to Bob the following day and we discussed the fact that he had consumed only 3 beers in four hours. It was fresh on my mind when we discussed it and I haven’t forgotten it.”

All defensive witnesses must be admonished that they are under oath and must tell the truth. If a defensive witness cannot help you without committing perjury, he should be left out of your case. You can only make a fair assessment of whether a witness will be helpful or harmful after an extensive and detailed interview with the witness. Just like your client, your defensive witness should be requested to give you a detailed written account of the facts as soon as you learn of their existence. The same type of argumentative and accusatory questions used by the prosecution against the Defendant will also be used against your sobriety witnesses. You cannot expect your witnesses to hold up under cross-examination unless you have worked with them and prepared them for the shocks and surprises of a vigorous cross-examination. You must consider the time that you will spend in properly educating and preparing your witnesses when you set a trial fee in a DWI case. Although it may be tempting to think you can prepare for a jury trial in a short period of time, you will find that a DWI trial may be just as difficult in preparation as a robbery or felony drug trial. Your fee should be determined accordingly. You must be willing to invest the time necessary to prepare defense witnesses who may have language or educational handicaps or who may be intimidated by the thought of getting on witness stand. The only way to overcome the fear and nervousness of an unprepared witness is to act out a mock trial and give them a taste of what it will be like to be subjected to a hostile cross-examination. Failure to do so will compromise your chance of winning as well as under-serve your client. I still sadly recall the termination of a long winning streak in DWI trials when my sobriety witness, an Asian immigrant, was tripped up by the prosecution in the nuances of the English language. It is your job to determine whether your potential witnesses are equipped to take on the battle and whether by your work and expenditure of time you will be able to adequately prepare them.


Although I depart from my topic, I cannot conclude without mentioning what I believe to be the most effective single thing you can say in your closing argument. Advise the Jury that they are going to hear from an impassioned prosecutor about all the carnage and damage caused by intoxicated drivers. Remind them that is not what this case is all about. Also remind them that they are not saying by a not guilty verdict that your client is innocent or that your client has done nothing wrong. By a not guilty verdict they are not saying that the police are wrong or that the prosecution is wrong. By a not guilty verdict they are not restoring your client to where he or she was prior to the arrest. They are not removing the shame and embarrassment of handcuffs and jail. They are not removing the stigma of having an arrest record. They are not restoring the money spent on bonds and attorney’s fees, not to mention lost time from work and family while preparing for trial. They are simply saying a by not guilty verdict that there is reasonable doubt; doubt which would cause any reasonable person to hesitate to act in the most important of their own personal affairs. Remind the Jury that a not guilty verdict will not be a cause for celebration by your client. But it will prevent your client from suffering the future consequences of a record of conviction and the possible loss of employment and mobility that may result. Remind the Jury that a not guilty verdict in a case such as this which is full of reasonable doubt is the best possible law enforcement they could hope for.

Prepare your cases, don’t try the dog losers, (that’s why we have plea bargaining) and you will win the majority of your jury trials. Bargain of probation and does not expect a jail sentence).

QUESTION: “Why do you think this officer is lying about what he saw out there?”

A POORLY CONSIDERED ANSWER: “I suppose that all cops lie in order to make their cases stand up.”

A CAREFULLY CONSIDERED ANSWER: “I have no way of knowing whether the officer is lying or is making honest mistakes. I suppose that after time passed his memory of my case faded. I would like to think that he is doing his best to tell the truth.”

ANOTHER POSSIBLE ANSWER IF THE FACTS JUSTIFY IT: “I cannot explain the officer’s motivation, any more than I can explain why he damaged the nerves in my wrist with the handcuffs. All I know is that the damage was done and now my left thumb is completely numb, ten months later.”

Prepare your client to utilize the photographic exhibits if you have them. For example, when a prosecutor asks your client to compare his motive for truthfulness with that of the arresting officer your client can respond by saying, “I recall that the officer said there was smooth pavement where he gave me the walk and turn test, but clearly the photograph shows that it was rough slanted dirt.” Be prepared in closing argument to hammer on the statements made by the officer which are contradicted by other witnesses or by physical evidence such as photographs. Your best argument is that if the officer was wrong about some of his testimony, how can any of it be taken at face value.