W. Clay Abbott
Recently I received a great e-mail from Corporal IV Mike Scheffler of Georgetown West DPS/Texas Highway Patrol. He wrote, “This defense question has come up several times in court, and I wonder how you would answer it: ‘Officer, did you observe any bad driving by my client?’”
Folks ask quite often what to do about a case without a “drunk car.” The worry is legitimate because judges and juries expect to hear: that the defendant’s driving was so bad that his intoxication was obvious. A lack of impaired driving in a DWI case is certainly a weakness but not an insurmountable one.
Corporal Scheffler notes that the vast majority of the DWI arrests he and his colleagues make start with stops for “low grade” speeding, malfunctioning equipment, and smaller violations of the Transportation Code. “In court, I have testified numerous times that the vast majority of DWI arrests are made with such probable cause for the initial stop and that the classic TV drunk car that we see on ‘COPS,’ ‘Real Stories,’ and all the other ‘entertainment’ cop shows are actually few and far between,” he says. “I further testify that waiting for bad driving behavior is the same as waiting for the vehicle to strike someone before we take action.
Corporal Scheffler often uses the analogy of a driver hitting a deer (because it is so common in his area). “In most such cases, the driver, who was totally sober at the time of the crash, never saw the deer coming—yet struck it anyway. With this in mind, I paint the picture of the defendant driving down a street and a small child running out to chase a ball and, guess what, the defendant’s impairment slows his reaction time and he too, never saw the kid coming. I have found that juries buy into this scenario nearly every time.”
Richard Alpert, the misdemeanor chief of the Tarrant County Criminal District Attorney’s Office, admits that the “no bad driving” cases are hard and therefore more likely to go to trial, but “the goal of a trained officer is to stop a car before the driving gets too out of hand.”
A stop without bad driving is problematic and will raise the aforementioned defense question every single time. Numerous prosecutors have lamented officers making stops “too early” and having “no bad driving” evidence, while officers appropriately ask, “Why can’t we just make a regular traffic stop?” and “Do we need to follow such drivers until they hurt someone?” While I can’t make this issue go away, my knowledgable colleagues and I have suggestions for voir dire, direct examination of the officer, and arguments that direct the focus on the defendant’s intoxication and danger on the road.
Questions for voir dire
“No bad driving” cases, like all DWIs, are won or lost during jury selection. Help the panel members see how a lack of bad driving does not hurt the case against the defendant. Warren Diepraam, an assistant DA at the Harris County District Attorney’s Office, suggests telling the jury, “‘Traffic stops are like lottery tickets: Every now and then you hit the jackpot with an impaired driver, a kilo of cocaine, a stolen vehicle, or, heaven forbid, a dead body in the car.’ Make sure the jury understands the importance of these types of stops in crime prevention.”
These questions will prompt the jury to think about DWI investigations with common sense and remove unrealistic, TV-created expectations:
• “As the State’s attorney, I must prove that the defendant operated the vehicle while intoxicated. Is there anyone here who would make me prove the police officer knew the defendant was intoxicated when he stopped the car for a traffic violation and before he had even begun his DWI investigation?”
• “How long do you think an officer needs to wait to pull someone over after he sees a traffic offense? How long do you think it should be between when an officer sees a traffic violation and the driver has come to a stop?”
• “What percentage of drivers are intoxicated at [whatever day and time this defendant was stopped]?” (This question obviously works best with late weekend nights and is excellent for holidays.)
• “How many impaired drivers do you think go undetected?”
• “Do you think it is important that drivers not be allowed to [do what the defendant did to catch the officer’s attention]? Why do you think that behavior is dangerous to other drivers?” (This line of questioning is especially effective with equipment violations.)
• “Who thinks officers should ignore [what the defendant did]?”
• “Does anyone think it is unfair that an impaired driver is caught and detected by a common traffic stop rather than observation of the bad driving behavior you might see on ‘COPS’ or reality TV police shows?”
• “Do you think impaired drivers who are stopped for [what the defendant did] should be released if the officer did not see him drive poorly?”
• If the stop was for speeding, not using turn signals, running a stop sign, not turning on headlights, or not using seatbelts, ask this question: “Alcohol lowers inhibitions; can anyone tell me why that might make an impaired driver more dangerous?”
• (Warning: This one is bold!) “Who here has been stopped for a traffic violation? Did you get a warning or a ticket? Did you get arrested?”
Direct examination of the officer
Deal with the lack of bad driving during direct examination—never leave it for the defense to note for the first time during cross. Prosecutors know the defense is going to bring up this issue, so don’t be shy or apologetic. The officer made a perfectly legitimate and common stop, and he got lucky to take an intoxicated driver off the road. Embrace it, and that will take all of the sting out.
Here are some questions to present through the arresting officer on direct:
• Carefully describe the very short amount of driving time the officer observed the defendant, which makes it clear the defendant did not visibly drive poorly in the 30 seconds the officer watched the defendant, noted the violation, and pulled him over.
• Detail all the other things the officer did as he pulled over the vehicle. Because it was not a DWI investigation yet, the officer may have missed something, and that is OK. Have the officer describe what he did such as activating lights, contacting dispatch by radio, making a U-turn, and observing other traffic.
• Explain what the officer typically does during a shift. For example: He might observe 100 vehicles, make 20 traffic stops, assist one or two drivers in distress, chase a cow off the road, pick up street debris, perform one or two DWI investigations, and make one DWI arrest. Put the whole case in context.
• Discuss why broken headlights, outdated registration, and similar violations are a safety issue and why the officer stopped the driver for one. Make sure the jury knows the officer makes many such stops and gives citations or warnings for these infractions. Let them know DWI investigation is just one of the many responsibilities the officer has while on patrol.
• Go over in great detail how the mundane traffic stop turned into a DWI investigation. This discussion helps explain why the officer didn’t follow the violator before pulling him over to gather DWI evidence. Put special time into having the officer explain his first contact with the driver. Ask what he saw, heard, and smelled.
• Remember that speeding is always bad driving. It may very well indicate a loss of normal, safe inhibitions. Recognize, too, that alcohol reduces inhibitions. Drinking makes a driver brave, and bravery makes drivers speed. (Stupidity also makes a driver brave and speedy, so the defendant may be alcohol-induced brave or just plain stupid. Either way, he is a danger on the road.) This axiom applies not only to speeding but also to the use of signals, headlights, and even seatbelts.
Remember that good closing arguments must be seeded during jury selection and nurtured during direct. Use the closing argument to dare the defense to criticize the officer for doing his job and for raising the burden beyond the elements required by law. Stress that while there is evidence we might like, it is not up to the officer to make it up or report the case in any way except how it actually happened. Come back on close and remind the jury that defense counsel’s standards are purely hypothetical and don’t match the elements in the charge.
Touch on these points too:
• Discuss the fact that sometimes the public and the police get lucky by pulling over a driver with a busted brake light and discovering an intoxicated driver. This is a good thing! We want lots of cops on the road when it is most dangerous, and we want them to find impaired drivers.
• Stress that the officer’s testimony is credible and that he did not make up any “bad driving.” Rather he brought you, the prosecutor, the case as is.
• Stress that just because the officer did not witness the defendant’s bad driving (during a brief window of less-than-totally-focused observation) does not mean that the defendant was driving safely before his encounter with police or that he was OK to drive had the officer let him continue on his way.
• Emphasize that during that particular shift, the officer made lots of traffic stops and only a few DWI arrests—that means that the defendant’s impairment stood out.
• Where appropriate, remind the jury that certain violations, while not classic “COPS” material, are evidence of the defendant’s lowered inhibitions. If the defendant testifies, remember to cross him on whether he commits this type of violation every single time he drives. Most will say that breaking the law is not their normal driving behavior.
In conclusion, the “drunk car” is great evidence when we have it, but when we don’t, nothing can be done to keep the defense from harping on the issue. Just don’t forget that weaknesses in our cases hurt much less when we address them confidently, unapologetically, and with common sense. Don’t let the defense increase the State’s burden of proof or impose silly requirements on an officer in the field who is doing all he can to keep our roads safe. Prepare officers to address the issue during direct examination, and make sure they know to concede the issue on cross without fighting or getting into counterproductive spats with defense counsel. Like most DWI defenses, the lack of bad driving evaporates with a well-prepared jury, effective presentation on direct, and a confident, fair argument on close.✤