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Rethinking your approach to jury verdicts in OWI cases

By: WISCONSIN LAW JOURNAL STAFF//May 10, 2016//

Rethinking your approach to jury verdicts in OWI cases

By: WISCONSIN LAW JOURNAL STAFF//May 10, 2016//

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Drunk-Driving

By Dennis Melowski
Melowski & Associates

Dennis Melowski is an OWI defense attorney at Sheboygan-based Melowski & Associates.
Dennis Melowski is an OWI defense attorney at Sheboygan-based Melowski & Associates.

The last two drunken-driving cases I have taken to trial had the following fact patterns:

Case No. 1: The client was stopped by a veteran county sheriff’s deputy for repeated lane deviations. The client admitted to drinking, failed roadside-sobriety tests, and submitted to a blood test with a result of 0.22.

Case No. 2: The client stopped for running a stop sign. The client admitted to having five drinks, “stumbled” outside his vehicle, performed poorly on field sobriety tests, and submitted to a blood test with a result of 0.17.

As you can see, neither situation seemingly presented a likelihood of acquittal. In fact, most attorneys, even those experienced in defending people accused of OWI, would substantially temper their client’s expectations for a favorable outcome.

Yet in each of these cases mentioned above, the jury returned verdicts of not guilty in relatively short order. And to really send a message, the jury acquitted on the accompanying traffic citations. These verdicts were tantamount to a complete repudiation of the officer’s claims.

But why?

Any lawyer who has done a meaningful amount of OWI defense knows that such cases can be very difficult. In nearly every instance there are allegations of poor driving, poor coordination, and general intoxicated behavior. And all of this has usually been observed by an officer in a crisp uniform adorned with a shiny badge.

Even so, the sharpest arrow in the prosecutor’s quiver is generally a chemical breath or blood test. The general belief is that such scientific evidence is beyond reproach.

To better understand what an OWI lawyers must go through, think of this like having to defend a bank robber who was not only caught on video and positively identified by three different tellers, but who also left his driver’s license at the scene.

Such analogies go only so far, though.

What most practitioners ignore, or at least don’t fully appreciate, is the one big distinction between OWI cases and other types of criminal offenses. This is that many jurors have actually driven after drinking. It is precisely this self-awareness of “there but for the grace of God go I” that should be capitalized on.

Given that many jurors can plausibly see themselves sitting in the very chair immediately next to you, there is an expectation that your client’s case will have been investigated and in handled the way they would expect their case to be investigated and handled if they had the misfortune of facing such a charge. For example, jurors expect a police witness to be truthful and forthcoming.

They expect that something as overwhelmingly important as a blood sample will be responsibly handled and analyzed by a competent lab with competent personnel. They expect this lab will vigorously adhere to the highest standards in the processing and testing of the sample. In short, they expect the entire process to be objectively fair.

It is against this backdrop that defense counsel should frame the issues at trial. Think less of the traditional framework of guilt and innocence, or even “beyond a reasonable doubt,” for that matter. Draw up your presentations and arguments in terms of fairness.

The more instances of apparent unfairness you can expose during your trial, the greater your chance of getting a not-guilty verdict. For example, in scenario No. 2 above, the officer testified that my client “stumbled” upon exiting his truck.

However, the video did not bear this out, not even remotely.

Similarly, the angle at which the officer’s squad car was parked made it impossible to determine with any certainty that my client had failed to stop at the stop sign. All this meant that over the course of the trial, even the slightest embellishment by the officer (of which there were many) became yet another example of the officer’s dishonesty.

Case No. 1 unfolded in a similar matter. This time there was no video offered at trial, but the officer’s account of the events was riddled with inconsistencies and mistakes that severely hamstrung his credibility.

In each case, none of the many favorable points I scored pointed directly to actual innocence. Instead, the takeaway was that no objective person listening to the testimony would have described the officer as fairly portraying the facts.

Successfully undermining the credibility of the police witness can considerably stunt the remainder of the prosecutor’s case, namely the blood-test result. Jurors are more receptive to attacks on this evidence if they are already skeptical of untrustworthy law-enforcement testimony.

In sum, the jury doesn’t need proof the blood evidence was handled the same way a disgruntled UPS driver would a package on his last day at work. Jurors will concentrate on other inconsistencies if similar instances of unfairness can be shown. For that reason, it’s good to direct their attention to missteps in laboratory protocol, suspicious equipment performance, failure to scrupulously follow quality-control procedures, etc. All these things will take on added weight if they happen to be combined with acts of unfairness in other parts of the prosecution.

In neither of the cases mentioned above, for instance, was I able to offer the jury direct evidence of a flawed test result in my client’s case. What I was able to offer was a depiction of a laboratory process that would be mortifying to the jurors if it were used to test their own blood. In my experience, such depictions are often more powerful than evidence of faulty tests.

I am a big proponent of speaking to jurors after trials. I like to see what they were thinking of before reaching a verdict.

Rarely have I spoken to a juror who expressed concern that my client was factually innocent. What they have expressed, consistently is anger or disbelief that “an officer can just lie like that” or “is that really the lab responsible for all the blood tests in the state?”

Essentially, jurors will ultimately judge the case over whether they think it was brought in a fair way or not. Empower them to do so at every opportunity.

In the waning moments of my closing arguments, I try to avoid asking the jury to find my client “not guilty.” Instead, I tell them to “do the right thing.” And, more often than not, they do.

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