How to Cross Examine a Police Officer in a DWI Trial (New York State)

Four Parts:Incorporating Key Buzzwords Into Your Cross ExaminationAdverse Impeachment of an Embellishing Police WitnessFinishing The Buzzword Cross ExaminationSummation

Your client is accused of violating section 1192(3) of the NY Vehicle and Traffic Law known in some places as a: DWI refusal" or a "usual Law DWI"; albeit there is no chemical test, and the proof will come down to police observations to prove intoxication.


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    Assume for purposes of this post that your client has a prior (usually the case in refusals), so there is no offer. Presume further that your judge seems unsympathetic to your customer's cause and the possibility of an 1192(1) judgement after a bench trial are slim. So, onward we march to a jury trial of the matter.
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    Consult The NYS Criminal Pattern Jury Guideline (PJI) Handbook. The first and essential step in attempting this case is to get in touch with the NYS PJI 1192 (3) VTL. In particular, look at the pertinent PJI definition of "intoxication".
    • A person is in a drunk condition when such person has consumed liquor to the extent that she or he is incapable, to a substantial degree, of utilizing the physical and mental abilities which she or he is anticipated to have in order to operate a car as a reasonable and sensible motorist. (Emphasis added.)

Part 1
Incorporating Key Buzzwords Into Your Cross Examination

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    Focus on the the term "physical and mental abilities ..." These are the principal buzzwords you will be incorporating into your cross examination of the detaining officer.
  2. 2
    Assume the typical direct testament from the apprehending officer, wherein he or she offers all the basic indications of intoxication: swerving, bloodshot eyes, alcohol on the breath, unstable on his/her feet, failed all the FSTs badly. Here is an example cross-examination:
    • You: Sir you observed Johnny drive past you, yes?
    • Cop: Yes.
    • You: You took out after him, true?
    • Police officer: Yes.
    • You: You activated your overheads, fix?
    • Cop: Yes.
    • You: And Johnny drew over, yes?
    • Cop: Yes.
    • You: So at that point he had the brainpower to recognize you were stopping him, correct Sir?
    • Cop; Yes.
    • You: And the physical ability to draw the vehicle over, yes?
    • Police officer: Yes.
    • You: You approached Johnny's vehicle?
    • Cop: Yes.
    • You: And requested him to produce license and registration, correct?
    • Cop: Yes.
    • You: So he had the mental ability to understand that demand, correct Sir?
    • Police officer: I think ...
    • You: That's a yes?
    • Police officer: Yes.
    • You: And he had the physical capability to find produce and hand you those documents, Isn't that also true?
    • Police officer: Well no, it took him a long period of time to discover them and he kept dropping his license...
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    Consider what just happened. 'And it was going so well!' you tell yourself. Now exactly what do I do? Do not worry. What just took place is that your arresting officer just differed your script and is heading down the dark and lonesome roadway of decorating his/her observations of intoxication. It is a dark and lonely road because you constantly follow the cardinal guideline of cross examination: "Never ever ask a concern you have no idea the answer to". In truth, that rule needs to be "never ever ask a concern you don't know exactly what the answer to needs to be".

Part 2
Adverse Impeachment of an Embellishing Police Witness

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    Continue with your sample cross examination:
    • You: So your testament now is that it took 'a long time' for him to find his documents?
    • Cop: Yes.
    • You: Which he 'kept dropping his license'?
    • Cop: Yes, Ma'am, he did.
    • You: I see.
    • You: Sir, you have training in the best ways to complete the essential documents pursuant to a DWI arrest fix?
    • Cop: Yes I do.
    • You: In reality you were trained at the police academy on exactly how full the necessary documents need to be. Yes?
    • Police officer: Yes.
    • You: Did they train you to be accurate?
    • Cop: Yes.
    • You Did they train you to be total?
    • Police officer: Yes.
    • You: Did they train you to be truthful?
    • Police officer: They did.
    • You: I'm handing you what has been marked State Exhibition A for ID functions. Do you acknowledge it, Sir?
    • Police officer: Yes.
    • You: Exactly what is it?
    • Cop: It is the arrest report I got ready for this case.
    • You: And you completed that over a year and a half ago, yes?
    • Police officer: Yes.
    • You: Contemporaneously with the occasions of the night in concern remedy?
    • Cop: Yes.
    • You: And at the time you prepared it you were trying to be exact?
    • Cop: Yes.
    • You: You were attempting to be complete?
    • Police officer: Yes.
    • You: And You were trying to be honest?
    • Cop: Of course.
    • You: So that's a yes?
    • Cop: Yes.
    • You: Can you please tell the jury where in that arrest report it states that Johnny took a long period of time to produce his license and registration?
    • Cop: It doesn't state it anywhere.
    • You: I see. And would you please show where in the arrest report it states he kept dropping his license.
    • Police officer: It does not state that either.
    You can repeat this procedure once again with his/her field notes, the misdemeanor information itself or his/her marvelous jury statement (if the case is a felony) to really pound your point home.

Part 3
Finishing The Buzzword Cross Examination

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    Finalize the cross examination. When you return to your physical and mental capability line of questioning, the officer is not likely to decorate again, but if he/she does, be grateful, and simply repeat your unfavorable impeachment steps.
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    Explain further with your cross examination the physical ability to run at a safe speed, safely park the automobile, exit the vehicle, stand in the street, walk without support, and walk while handcuffed behind his (or her) back. Naturally you will include each physical task into your cross examination as the realities of the case allow.
  3. 3
    Mention through your cross examination the mental ability to follow instructions, abide by orders, provide pedigree information, dial a phone, and carry on a chat. Once again, take a look at the facts and take what they offer you.

Part 4

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    Provide a summation. In your summation, remind the jury that the law is not 'fuel and liquor do not blend'. (Initially talked about in voir dire and opening.) The law is whether Johnny had the physical and psychological abilities to safely operate the motor automobile on the night in concern. Then reiterate all of the evidence to support that he did.
  2. 2
    Expect good results. If you follow these methods of integrating the crucial buzzwords of the PJI into your case with cross examination of the apprehending officer, and using unfavorable impeachment to struggle embellishment, you ought to be returning Not Guilty verdicts regularly with these kinds of cases.

Things You'll Need

  • The NYS Criminal Pattern Jury Guideline (PJI) Handbook

Article Info

Categories: Fines and Road Offenses