Among other techniques, use voir dire to help tell your story and underscore the defendant's constitutional right to refuse testing and other requests.
Defending a DUI case? West suburban lawyer Donald J. Ramsell provides practical tips for defending DUI refusals in jury trial cases in the March 2011 issue of ISBA's Traffic Laws and Courts section newsletter.
"Declined," not "refused"
Ramsell focuses on defense strategies in cases in which the driver has refused to cooperate with requests from law enforcement. His first tip: frame your argument with a positive tone before the jury by choosing your words carefully, including replacing the term "refused" with "declined" as frequently as possible.
A refusal to participate in, for example, pre-arrest field sobriety tests or post-arrest chemical testing of blood, breath, or urine is generally admissible, Ramsell writes. But a prosecutor's remarks suggesting shifting the burden of proof of sobriety to the defendant are improper. To forestall such remarks, Ramsell recommends obtaining a ruling from the judge before trial.
Ramsell recommends taking advantage of jury voir dire to begin diminishing the impact of a client's refusal. Illinois law, he says, requires all jurors to acknowledge individually that they understand that the prosecution must prove every element of the charges beyond a reasonable doubt, that the defendant need not present any evidence, and that the defendant is presumed innocent at all times. Ramsell recommends asking the judge to inform the jurors as well that drinking and then driving, in itself, is not illegal, unless the defendant has become intoxicated within the meaning of the DUI statute.
After the judge asks each juror to affirm their understanding of those matters, the defense lawyer will have the opportunity to ask questions of the potential jurors. Ramsell says he prefers to begin by referring to those judicial admonishments, asking the individual jurors whether they heard them.
He then asks questions that emphasize the history behind those principles and the importance of the individual juror's upholding them in the trial about to begin, and that require the jurors to agree individually that they will do so. In a refusal case, his questions focus on the principles that a defendant need never provide evidence of any kind, including evidence of his innocence, and that jurors may never hold refusing or failing to provide evidence against the defendant. Finally, he frames a question that explains to the jurors that they can be proud of delivering a verdict of not guilty.
"Say it loud and proud"
Having already prepared the groundwork for addressing his client's refusal in his voir dire questions, Ramsell says telling the jury up front, in your opening argument, that your client said "No" is the best strategy for taking the wind out of the prosecution's sails. "Say it loud and proud," Ramsell says. After all, he points out, it's every citizen's right to refuse to provide evidence against himself.
"Tell them that there was no reason for the defendant to have to prove his own innocence, or to risk that by doing so, some police officer could or would misinterpret the facts."
Ramsell also suggests some questions for cross-examination of the arresting officer that continue his reinforcement of the defendant's right of refusal. "A line of questioning in these areas helps build your theme into your closing argument," he says. Those instructional voir dire questions are good for double duty, too, Ramsell says. Plug them into your closing argument for extra impact, he advises.
In the remainder of his article, Ramsell provides additional questions that he's found effective in jury trials in which the defendants refused law enforcement requests. He also expands on effective components of closing arguments that he himself has used successfully in such cases.
The same newsletter contains other useful articles for DUI practitioners, including Erica Nichols's "Driving under the influence: Not just for alcohol anymore" and M. Christine Heins's, "Your client has been denied driving privileges by the Secretary of State. Now what?"
As a bonus, other ISBA members have posted comments after each of these articles, taking advantage of ISBA's website revamp that turns every article in every publication into a vehicle for discussion. To join the conversation, scroll down to the bottom of an article to read other members' comments and post your own.