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INSIDE THIS
ISSUE:
Legislative 2
Update
Sobriety
Checkpoints
Case Law
Update
Case Law
Update
SCRAM
Program
Field Sobriety
Testing
Ignition
Interlocks
Just Like
Marijuana?
K2/Spice in OK
DPS Set Aside
Orders
Understanding
0.08
3
4
5
6
7
7
8
8
9
14
A Missing Tool in DWITrials
ByW. Clay Abbott, TDCAA DWI Resource Prosecutor in Austin
Behold. the ubiquitousness of
PowerPoint.
If you have a fifth grader. he
will present his important re-ports
in school with PowerPoint.
If you attend a civic group lunch-eon.
the presentations are proba-bly
in PowerPoint. If you go to a
CLE seminar. there will be Pow-erPoint.
Anywhere you find edu-cation.
training. or group com-munication
you will see this tool.
Well. except for the stuff that
doesn't matter. like criminal tri-als.
This important means of
presenting a case is sorely miss-ing
from courtrooms, and I am
writing in the hopes of changing
that.
The message we send to
juries when we make presenta-tions
in trial without up-to-date
methods is that the subject of
the trials is not worthy of a good
presentation. When we lose any
chance to communicate with
juries, the result benefits the
defense.
The objections to Power-
Point
I know the objections are
already forming. Let's look at
them. I will refute them, then let
me provide some tips on how to
use PowerPoint.
I. PowerPoint and computer
equipment can break or mal-function.
Any trial attorney knows that the
Legislative Update
more complicated we make a
presentation. the more that can
go wrong. But the worst that can
happen, if we are honest with
ourselves. is that we will have to
do a trial just like we do now,
without PowerPoint. Secondly. in
using something new, attorneys
will have to leave their comfort
zones and actually touch technol-ogy.
Your fifth grader can do it;
it's time you learned too. Prac-tice
and planning are essential to
doing something new. You prac-tice
your close and you practice
with your witnesses-you will
have to practice using Power-
Point. (Speaking of witnesses: If
we eliminate things that go
wrong and don't work right. we
should get rid of witnesses long
before we get rid of Power-
Point.)
(Continued on page 10)
Traffic Safety Resource Prosecutor
SB 325 Defines the term "recreational off-highway vehicle" to mean. a vehicle manufactured and used exclu-sively
for off-highway use, traveling on four or more non-highway tires. having non-straddled seating and
which is steered by a steering wheel.
HB 2131 Recently signed by Gov. Fallin,this bill modifies the definition of "eligible offender" relating to the
Oklahoma Community Sentencing Act. to mean, one who is found to be in a range other than the low range
and convicted of at least one prior felony, but gives the district attorney the power to consent to one who
scores in the low range on an LSIunless otherwise prohibited by law.
(Continued on page 2)
If you have any questions, comments, or requests for assistance with research, writing, or trial preparation on the subject of impaired driving please
do not hesitate to contact me at: Leann.Paczkowski@dac.state.ok.us
P AGE 2 ",. ..•. -----_ •.. - ------------- ..•..
Legislative Update (Cont. from Page 1)
SB 324 This law, signed by Gov. Fallin, decreases the legal limit of blood or
breath alcohol concentration for someone operating a water vessel from 0.10 to'
O.OS. It goes on to state that a person operating such a vessel has given consent
to test blood or breath to determine alcohol concentration. It outlines the pa-rameters
on who may do the blood draw and how it must be done. The bill
states that if a conscious person under arrest refuses to submit, the test must not
be performed unless the officer has probable cause to believe that the person I
under arrest operated the vessel while intoxicated and was in an accident which I
could have caused serious injury or death of a person.
SB 529 Recently signed into law by Gov. Fallin, this bill requires those convicted of
DUI who refused to submit to the state's test, or those with a blood alcohol content
of 0.15 or higher to have an ignition interlock installed at the expense of the offender
for a year and a half following the mandatory period of revocation or until driving
privileges of the person are reinstated, whichever is longer. Second offense would
require installation for four years, and subsequent offenses would require five years.
The offender would also be required to have the words "Interlock Required" on I
their driver's license for the entire period. Additionally, if someone is under age 21 I
and convicted of a third or subsequent offense, their driving privileges may be can-'
celled. I
HB 1319 This new law modifies the DUI statute. It clarifies that additional penalties
can be applied to anyone who commits a subsequent offense within 10 years of the
date following completion of execution of the sentence or deferred judgment. It re-quires
that any person if previously convicted of second-degree murder or first-degree
manslaughter as a result of DUI violation, commits another DUI offense, they
may be punished from 5-20 years in DOC and a fine up to $10,000. The penalty for I
Aggravated DUI was modified, removing the 4S0 hours of community service and I
increasing the minimum amount of time an ignition interlock is required from 30 to I
90 days. It goes on to state that commission of a second aggravated DUI within 10 I
years of another conviction is a felony. It requires the offender to have an assess- I
ment and evaluation for treatment and successfully complete all recommendations.
Finally, it allows for witnesses who are qualified by experience and training to testify I
to impairment but not concentration level. I
~----------------------~IIIII
I
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S.
Department of Transportation, and/or Federal Highway Administration, U.S. Department of Transportation.
,\
II
""0LUME- 8:- ISSUE -2 - - -
F ----------------- ••••,\
PAG E 3
Sobriety Checkpoints
I
II
I
I
I
I
I
I
t
I
I
I
I,I
t
I
I\
,
Yes. Sobriety checkpoints are lawful in Oklahoma according to Lookingbill v. State, 157 P.3d 130,
2007 OK CR 7 . They are very effective in not only apprehending those who are driving im-paired,
but also act as a deterrent for those who may be considering driving while impaired. So
what are the legal requirements for an effective checkpoint?
In Lookingbill, the Court held:
I. Seizure of a defendant at a vehicle checkpoint on highways is reasonable under
the 4th Amendment (overruling Smith v. State).
II. In future cases,prosecution will be required to introduce into evidence the
agencyguidelines governing operation of checkpoints.
III. Vehicle checkpoints must meet three overreaching standards:
A. Operation must be rationally related to stated public purpose;
B. Operation must be carried out in accordance with agencyguidelines
limiting officer discretion and assuring all motorists are treated equally; and
C. Operation must be planned and carried out in a manner that minimizes in-vasion
of motorist privacy
IV. Six specific factors are used to determine
compliance with overarching standards:
A. Stated purpose of operation;
B. Approval of superior officers;
C. Degree of compliance with established
agency standards;
D. Time, location, and duration of checkpoint;
E.Steps taken to inform motorists of reason for
stop; and
F. Duration of individual stop.
"Don't forget
impoirment
storts with the
first drink and
driving impoired
is 0 crime"
-NHTSA rodio
script, July 2003
------------- .•.. -.._----_ ... _---
o-l••• -- ••
I
/
-;
Alle~ed Drunk Driver Ironically Drives Self to.
and Into. "Sober Livin~" House
When an "alleged" drunk driver crashed his car into the side of a house one
night in Los Angeles, it turned out to be "allegedly" ironic, as the building the man
hit was a sober living facility, injuring four residents. The driver was Charged with
. felony DUI, and if he returns to the facility, we all hope that next time, he does so a
bit slower.
To read full article see: http://www.trutv.com/dumb as a blog/gallery/20-dumbest-alleged-
drunks.html?curPhoto= 13
This materialwas preparedfor the HighwaySafety Office in cooperationwith the NationalHighwayTraffic SafetyAdministration,U.S.
Departmentof Transportation,and/or FederalHighwayAdministration,U.S. Departmentof Transportation.
---.~--~.---.--
Michigan v. B-,yant, No. 09-150, Decided February 28,2011
A deceased individual's statements to police are not testimonial and
does not violate the Confrontation Clause if their "primary purpose [is] ...to
enable police assistance to meet an on-going emergency." Davis v. Wash-ington,
547 U.S. 813. The opinion clarifies what the Davis court meant by
"the primary purpose of the interrogation is to enable police assistance to
meet an on-going emergency." Id., at 822. The/court held that in order to
determine the "prirnarv purpose", the court must consider the circum-stances
of the encounter between the police and the individual and the
parties' statements and actions. "The terms 'on-going emergency' focuses
not on prov[ingj past events potentially relevant to later criminal prosecution, but
on end[ingj a threatening situation."
Carrell v. State, M-2010-0646 (Unpublished) Decided April 4, 2011
After trial by jury, Carrell was sentenced to one year to serve and a $1,000
fine. He appealed his conviction based upon the State's admission of the deceased
witness' statement, alleging a violation of his right to confrontation. The State al-leged
that any error in admitting the oral statement was harmless and cumulative in
that Carrell admitted the deceased witness' written statement. The Court held that
the statement made by the deceased witness was testimonial hearsay. In Crawford
v. Washington, 541 U.S. 36, 68, the Court held that testimonial hearsay statements
may only be admitted at trial if the declarant is unable to testify and defendant had
a prior opportunity to cross-examine the declarant. In Hammon v. Indiana, 547 U.S.
813, 822, the Court held statements made during a police interview are testimonial
unless the circumstances objectively indicate that there is no on-going emergency
and the primary purpose is to gain information to be
used in later criminal prosecution. In this case, there was
no on-going emergency, and the statements offered
were testimonial. Therefore, the statements are subject
to Crawford. Due to Carrell's inability to cross-examine
the decedent, admission of the statements constituted a
violation of the Confrontation Clause. However, due to
the fact that Carrell offered written statements by the
decedent, and other evidence was present which suffi-ciently
supported the guilty verdict, the error was found
harmless beyond a reasonable doubt.
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S.
Department of Transportation, and/or Federal Highway Administration, U.S. Department of Transportation.
VOLUME 8, ISSUE 2 PA G E 5
Shelton v. State, RE-2010-20S (Unpublished), Decided March 14,2011
Revoked. The State filed an Appli-cation
to Revoke, alleging he violat-ed
his probation by committing
several new offenses and failing to
pay fines and costs. After a heari ng
on the Application, the court re-voked
his sentence in full.
voke a sentence in whole or in
part, and the decision to do so will
not be disturbed absent an abuse
thereof. Jones v. State, I988 OK CR
20. In this case, the decision of ther;=======:J.. trial court to believe police over
the defendant was not an abuse of
discretion. Tapia v. State, 1988 OK
CR 82. Further, the Court's deci-sion
to revoke in full did not shock
the conscience of the Court. Stigall
v. State, 1871 OK CR 270. Af-firmed.
Defendant appealed the revo- ~fAtree never
cation alleging the trial court
abused its discretion by not only
revoking his sentence, but revoking
it in its entirety.
Defendant was given a three
year suspended sentence for Driv-ing
Under the Influence, Transport-ing
an Open Container of Beer, and
_.Driving with License Cancelled!
hits an
automobile
The Court held it is at the
discretion of the trial court to re- - except in self .---~.... defense"
Byrd v. State, M-2010-1S8 (Unpublished), Decided May 12, 2011
Byrd was arrested for DUI after he almost collided with a police cruiser coming out of a bar in Tulsa, OK.
Byrd had difficulty getting out of his car, staggering and swaying back and forth, had a strong odor of alcohol on his
person, had bloodshot eyes and slurred speech. Byrd refused to take any SFST's or breath tests. Upon arrival at
the county jail, Byrd began to throw up. About halfway through his throwing up, Byrd stated he would like to take
the breath test. He again threw up. By the time he was done, there was not time left for a fifteen minute deprivation peri-od,
so law enforcement was unable to properly administer the test. Byrd was subsequently convicted by a jury of OWL
-American
Proverb
,
I
The Court of Criminal Appeals held police do not have a statutory or constitutional duty to perform particular tests
on evidence. Therefore, it is not a denial of due process, failure to preserve evidence, or destruction of evidence when
tests are not performed. The breath test could not have been accurately or properly administered due to the defendant's
vomiting, and he did not request a blood test. Affirmed.
Blountville Lawnmower Driver Arrested for DUI;Allegedly Drove
on Wrong Side of Road. Refused to Stop for Police
By Rain Smith
A Blountville [Tennessee] man has been arrested and
charged with DUI after allegedly riding his lawnmower
on the wrong side of the road -- ignoring police sirens
and loudspeakers for a half mile before stopping.
An arrest report at the Sullivan County Sheriffs Of-fice
says the incident occurred at about I I p.m. Friday,
on Harr Town Road. A deputy reports passing a man,
later identified as Martin Junior McMurray, 46, of 729
Harr Town Road, riding a mower down the roadway.
The deputy turned his squad car around to follow
the mower, with McMurray allegedly steering into the
opposite lane of traffic. The deputy activated his blue
lights, which McMurray reportedly ignored, before giving
commands on the squad car's loudspeaker to pull over.
The report says McMurray continued driving.
The deputy says that after following the lawnmower -
- which continued traveling on the wrong side of the
road -- for about a half mile, McMurray finally pulled
over. The report states McMurray was unsteady on his
feet, with police detecting a "strong odor" of alcoholic
beverage[ s].
When asked if he'd been drinking, McMurray alleg-edly
replied he'd, "had a few beers with dinner." While
searching McMurray police located an unopened 12-
ounce can of cold beer in his jacket pocket.
McMurray was given field sobriety tests, allegedly
performing poorly. A check of his driver's license status
revealed it had been revoked.
McMurray was arrested and charged with driving
under the influence, driving on a revoked license and
being a habitual motor offender. He was booked into the
Sullivan County jail, where a check of his blood alcohol
content allegedly came back as 0.15.
To read full article see: http://www.timesnews.net!
article.php?id=9022142
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S.
Department of Transportation, and!or Federal Highway Administration, U.S. Department of Transportation.
P AGE 6 NDAA Training Opportunity!
Lethal Weapon
Advanced Trial Advocacy Course
September 12-16,20II, Columbia, SC
* Learn how a crash reconstructionist determines speed from skid
marks and vehicle damage
* Determine how vehicle and occupant kinematics assist in cases involv-ing
driving identification
* Understand the prosecutor's role at the scene of a traffic fatality
* Calculate BAC by learning alcohol absorption and elimination and
making use of Widmark's formula
* Improve trial advocacy skills, particularly conducting direct and cross-examination
of expert witnesses
Who Should Apply:
* Prosecutors with an experience level of four or more years trying im-paired
driving cases preferred
* Prosecutors who currently handle vehicular fatality cases
* Experienced prosecutors who want to increase their understanding of the
technical evidence required to prove guilt in cases involving vehicular fatali-ties,
and improve their trial advocacy skills
For more information see: http://www.ndaa.org/ntlctraining.html#courses
In a ranking system
where I is having the
lowest percentage of
OUI related deaths
and 5I is the highest,
Oklahoma is rated 27
-2009 FARSINHTSA
SCRAM Program
Transdermal continuous alcohol monitoring devices, commonly referred
to as SCRAM ankle monitors, have become increasingly popular in the world
of prosecution. They are often used as a condition of pre-trial release as well
as used post-sentencing. So, how do they work?
"After a person ingests alcohol, the substance is then diffused through the
human body by urine, blood, breath and perspiration."* The device, when
attached to the ankle, collects a sample of the subject's perspiration, testing it
for ethyl alcohol. This testing process is generally repeated more than 50 times
in a 24 hour period. The unit is then plugged into a landline in the offender's
home, then all information including the presence of alcohol and tamper alerts
are uploaded and reported to law enforcement.
*Swift, R. (2000). Transdermal Alcohol Measurement for Estimation of Blood Alcohol Concentration. Alcoholism:
Clinical and Experimental Research 24 (4): 422-423.
**Zador, Paul, Sheila Krawchuk, and B. Moore, Drinking and Driving Trips, Stops by Police, and Arrests: Analy-sis
of the 1995 National Survey of Drinking and Driving Attitudes and Behavior, Rockville, MD: Estat, Inc, 1997.
This materialwas preparedfor the HighwaySafety Office in cooperationwith the NationalHighwayTraffic SafetyAdministration,U.S.
Departmentof Transportation,and/or FederalHighwayAdministration,U.S. Departmentof Transportation.
VOLUME 8, ISSUE 2
Field Sobriety Testing
There are three field so-briety
tests that are com-monly
used by law enforce-ment
to determine if proba-ble
cause exists to arrest
someone on a charge of
driving under the influence
of alcohol or drugs. The first
is the Horizontal Gaze Nys-tagmus
test. In this field test
an officer takes either his
..,----------
finger or a pen and asks the offender
to, without moving his head, follow
the implement with his eyes. General-ly,
a sober driver's eyes will follow
smoothly. However, an impaired driv-er
will demonstrate a horizontal
"jerking" of the eye. This is referred
to as Nystagmus.
The second field test is walk and
turn. This test is again administered
by an officer, who will ask a driver to
stand with his arms to his sides, and
walk in a straight line, heel to toe sev-en
to nine paces. The driver is then
asked to turn taking three to four
small steps, and return down the
same line in the same manner. An
inebriated driver will likely be unable
to maintain balance or struggle fol-lowing
those basic instructions.
-' - Ignition Interlock Devices
PAG E 7
The third is the one leg stand test,
where the driver is asked to stand
with one foot about six inches off the
ground, keeping his eyes fixed on his
raised foot and count until instructed
to stop. The intoxicated driver will
likely demonstrate poor balance, ei-ther
hopping to stay'-;:=====::I .•
in one spot, using
his arms to keep "Alcohol-balance,
or putting impaired driving
his foot down be-fore
instructed to.
-- - -,
takes an
An officer should enormous toll in
still always offer the
State's test to the
driver.
the US, Idlling
approximately
one person every
40 minutes."
-NHTSA200B
I Any person convicted of a second or subsequent felony offense for driving under the influence will
likely be using an ignition interlock device. There is also a new law that would require an ignition inter-lock
for every aggravated DUI conviction. So, what is an ignition interlock? It is a device, similar to a
breath analyzer that is installed in a motor vehicle. Before the vehicle can be started, the offender must
blow into the device. If the device detects alcohol, the engine will not start. The NHTSA model speci-fications,
adopted in 1992 provide that an ignition interlock must prevent a car from starting 90 per-cent
of the time if the BAC is .0 I g1dLgreater than the preset limit.* Many interlocks have a "running
test", which at random, require repeated breath tests once the vehicle has been started. According to
NHTSA, this reduces the likelihood that an "alcohol-free" bystander will provide the breath test. If a
driver fails to provide a retest an alarm will be activated and authorities will be alerted.
Studies (Beirness, 200 I; Jones, 1993; Popkin et al., 1993; Coben & Larkin, 1999;
Marques et al., 200 I ; DeYoung, 2002; Raub et al., 2003) have shown ignition interlocks re-duce
recidivism from 50 to 90 percent while installed on vehicles. After removal of the de-vice,
recidivism rates return to pre-ignition interlock levels.**
*Mothers Against Drunk Driving [MADD], 2009
**MADD, 2009; NHTSA, 2007; NTHSA 2009
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S.
Department of Transportation, and/or Federal Highway Administration, U.S. Department of Transportation.
Just Lilce Marijuana?
ByJenniJer Messick -.1SBP lor City of Anchorage, Alaska
Sp~, also known asK2, :Is agr~en leafy plant ma'terial that compounds: JWH-018, HU~210, CP 47-497, JWH-073 and JWH-has
been sprayed with acombination of research theuiical failures 21'0.1 This wort<was verified bY'a DEAJab in the USA. Some sam-
~hatbehave like THe. Packaged in psychedelic-colored foil packets, 'pfe!icqntained all .5while some only had one or two. However, at 3
it is marketed. as "incense' and can be bought at' head shops, .- 800 times lhe potency of m<!rijuana. a trace amount of just one of
smo~e shops and the intemet. It can ..also be botJght at some con- these compounds can have adverse effects. Since 2008. manufac-
\lenience stores, right flexqo the.S-hour E!ner,gydrinks tha~ arecur~ turers ryavecOntimied to make additional compounds which have
rently popular among t~nagers. While itmay look like cheap man- .been identifi~ in.Spice products.
juana. its effects are rl]ore .IikeRCP or the drug evaluation and (:1;3S-sifiCation
category of {jissocii,ltive ane~thetiC$~ . .
'a /~\s·a result. users of thiS dfl.Jgpose a safety
risk to. offi~ers.paramettics, parents and <lny-one
elsearoend mem. > •
. Uke PCP or LSD. the effects are cyclic and vary
from user to user and even the same user can have very
different effects the next' time. Based on information pro-videct
by law entorcemerit, EMS, poison control centers
and user blogs. the most common effects are very high
very high blood pressure (200+/100+). hallucinations,
delusions of death, numbness and tingling, low body temp
(9~.6), so~pletelygarbled, incoherenf speech, uncon-sciousness,
menlOryloss and seizures. The same user
.11I11II--11I-11I-". may cycfethrough symptoms several times during the
high so you can expe.ct that things like HGN may be present at one
pOin.t.~aild then disappear, onh: to fetul'l1 later. The higl'l can last
anywhere f(om 20 miAutes to over.30 hours. Some effects are per-
(l1anel1tAt least twouserskiUed themselves while high on Spice
and severaltraffic fatalities haw~ resulted frgm.high drivers.*
K2/Spice in Oklahoma
The Oklahoma Legislature was relatively quick to address K2 and Spice, and their potentially devastat-ing
effects as noted in the above article. House Bill 3241 was passed in 2010, legally defining them as Sched-ule
I Controlled Dangerous Substances. The law became effective November 1, 2010. If you are attempting
to locate them in your statute book, see Title 63 O.S. 2-204(A), they may be properly referred to as one of the
following:
• 1-Butyl-3-(1-naphthoyl)indole
1-Pentyl-3-(1-naphthoyl)indole
(6aR,1 OaR)-9-(hydroxymethyl)-6. 6-dimethyl-3-(2-methyloctan-2-yl)-6a. 7,10,1 Oa-tetrahydrobenzo[c]
chrornen-t-ol
It is important to note that not all states have passed such laws. While these are now controlled sub-stances
in Oklahoma, they still find their way onto the streets and can be found online.
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S.
Department of Transportation, and/or Federal Highway Administration, U.S. Department of Transportation.
DPS Set Aside Orders
BJBrian K. _~lorto~ Assistanf General Counsel, and Joanne Horn, ,tssistallt Gelleral Counse~ Oklahoma
Dept. Of Public Safety
One day a defense attorney comes to your office to persuade you to dlsmlss your DUIIAPC case against his/her cli-ent,
or at least come off your initial plea bargain recommendation. To support his/her position, the defense attorney
advises you that the Department of Public Safety (DPS) has set aside the driver's license revocation that resulted from
the DUIIAPC arrest, and returned their clfenfs driver's license. The defense attorney may even produce an order from
DPS to that effect. However, be sure to read the order closely, things may not be as they seem.
At a DPS implied consent administrative hearing a driver's license revocation may be set aside for any number of
reasons: if an officer does not appear at the administrative hearing; if the arresting officer is not sufficiently prepared to
testify; or if an essential witness was not listed by the arresting officer and thus not present to testify. All of these condi-tions,
and more, would result in the revocation being set aside. The DPS order generally states the reason why a revo-cation
is being set aside.
In some instances a revocation order is set aside because of a problem in the case. Even then, DPS' basis for
setting aside the revocation order may have no effect on the viability of the criminal case. DPS may set aside the rev-ocation
on the issues where: 1) the wrong officer signed the Officer's Affidavit and Notice of Revocation; 2) the officer
failed to read the Oklahoma Implied Consent Advisory, or misadvised the defendant as to the advisory; or 3) the breath or
blood alcohol testing was not done In accordance with Board of Test. rules.
Under Title 47 O.S. §753 and §754, a sworn report from the arresting officer submitted to DPS confers jurisdiction
to take action against a person's driver's license. If it is determined that a person other than the arresting officer signed
the sworn report, such as the breath analysis operator, then the affidavit is facially insufficient. See, Chase v. State,
ex rel., Dept. of Public Safety, 199 OK 78, 795 P.2d 1048. This situation, however, should not affect a prosecutor's
case because the requirement under Sections 753 and 754 only apply to DPS. Section 754 also requires the officer
advise the arrested person their driver's license is subject to revocation if they test over 0.08 if over 21 years of age, or
O.O<~if under 21 years of age, or jf they refuse to take the State's test. Officers accomplish this by reading the Oklahoma
Implied Consent Advisory. Failure to read the advisory would result in the revocation being set aside, but this only ap-plies
to license revocations at DPS. The failure of the officer to read the advisory does not affect a prosecution
.£!R:.
If the State's test was not done in accordance with Board of Test rules, the prosecution's case could be substantial-
Iy hampered, but it's not necessarily destroyed. If the evidence at the DPS hearing shows an invalid test due to failure
to substantially comply with the Board of Test rules, the prosecution will not be able to rely on the test in the crim-inal
case. However, issues in the administrative hearing are not the same as the prosecution's elements in a criminal
case. DPS makes a finding the person either tested over the legClllimit or refused to take the State's test. Prosecutors,
on the other hand, must prove the person actually operated a vehicle under the influence. Pursuant to Title 47 O.S.
§757, other competent evidence can be admitted to show that the person was under the influence. Thus, the prose-cutor
can still have a good case using an officer's observations, just as if the person refused to test.
The next time a defense attorney attempts to use the DPS administrative hearing order to persuade you to
dismiss or come off your plea bargain recommendation, remember to read the order carefully and determine whether
the issues at the administrative hearing represents actual problems in the criminal case.
1..--> FAQ: <....-----I
Does it violate a defendant's 5th Amendment right against self-incrimination to have
to choose whether to take the State's test?
-No. The Court of Criminal Appeals has held in State v. Neasbitt, 1987 OK CR
55, a defendant's refusal to take the state's test is not coerced and does not violate the 5th
Amendment. The Court has reasoned that breath/blood test results are physical evidence,
not testimonial, and therefore is analogous to taking fingerprints after arrest.
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S.
Department of Transportation, and/or Federal Highway Administration, U.S. Department of Transportation.
A Missing Tool in DWITrials (continued from page 1)
2. New things are hard and judges don't like new things.
Sure, new things are hard. Get over it. Sure, new things scare judges. Get them over
it. The defense will object that "PowerPoint is more prejudicial than probative." Take a careful
look at Rule 403. Does PowerPoint create an unfair prejudice or confusion or mislead the jury?
No-as long as you make sure that everything that goes into your presentation is not objectiona-ble
to talk about. Most of what goes in it will be presented to the jury, just not as well. And
while it will have an impact of prejudice, it is not an unfair impact; PowerPoint actually clarifies
points and does not obfuscate (that's what talking lawyers do).
Secondly, does it create "needless presentation of cumulative evidence?" At first
blush PowerPoint seems cumulative, but actually it allows simultaneous presentation of lots of
____________ .l-_--, different facts and massively speeds things up. My experience in Lubbock County was
that one judge used it. the remainder demanded it within weeks if not months.
wtll) .,C\I \:....ow ""L- ••+
+l..tj So ••• ,... '" ,)P€"'G,
,\ •••#• •••~ ',OZY •.•c.•/ch
Prepare the court for the shock. Ask the bailiffto work with you in setting it
up in the courtroom; call on his expertise and then implicit ratification. Consult with
your judge and make sure she can see your presentation from the bench. Make
handouts for the court reporter, .the bench, and defense counsel. Make it smooth, and
you'll overcome any objections (officialor otherwise).
3. I am a good enough speaker that I don't need PowerPoint.
Vanity, thy name is Old Prosecutor. Oh I know, the greats didn't use Power-
Point. That is not what made them great. It was an obstacle they overcame, not an ob- ---'--:----------or----' stacle they avoided. If they practiced now, they would have both PowerPoint and lap-tops
with Wi-Fi in the courtroom. They would also no longer smoke cigars in front of
the jury. Things change. Great speakers are aided by the subtle and minimal use of visual
prompts. The media uses it. politicians use it. entertainers use it. even preachers use it. Bad
speakers overuse it. and that's because they are bad speakers.
itA picture is worth a
thousand words. "
-Frederick R. Barnard 4. If I use it, so will the defense.
Communicating clearly and accurately is the realm of prosecution. If, during trial, a
jury is lost. inattentive, or confused, it rarely if ever helps the State. Clear communication helps
the side relying on truth and facts, not misunderstanding, conjecture, or doubt. If a tool" clears
things up," it is not for the defense-if they beat you with PowerPoint, they were beating you
anyway. Never plan your trial around what the defense will do.
Finally,my experience has been that defense counsel adapts more slowly than we do.
Tips
*.!:!ll.t2.lL
robinadel-son.
blogspot.com/2011/01/
picture"is-worth-thousand-words.
html
Far brighter folks than I have discussed the "how tos" of creating visual trial presenta-tions.
The one thing they all agree on, and I do too, is that less is better. The first time you use
PowerPoint in trial, shoot for just three or four slides-and make them count. Myoid trial
partner, George Leal, was a fanatic for visual presentations, long before PowerPoint. Every trial
he prepared for he made sure he had flip charts for voir dire, maps and charts for direct, and
posters for close. He rarely had more than four or five. like every trial tactic and every new
thing, follow the K.I.S.S.rule: Keep it simple, stupid. In addition to simplicity:
I, Use cover slides to keep track of your presentations.
Your document will automatically be named what you put on a cover slide, so
(Continued on page II)
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S.
Department of Transportation, and/or Federal Highway Administration, U.S. Department of Transportation.
A Missing Tool in DWITrials (continued from page lO)
Editor's Note: To view the slides referenced in this article go to www.tdcaa.com/sites/
defaultlfiles/newsletter/DWI%20T emplate%20slides.ppt.
2. Element charts were made for PowerPoint.
In LOne.Star County, Texas
J The defendant, Otis T Drunk
) On or about April 25i11, 2009
) Operated
)" Motor V.ahie'.
)In a P"bllc Place
While httoxicatN
put the case name and cause number on the cover slide of your PowerPoint. Make a brand new
presentation for every trial. I'm telling y'all this as someone who once introduced photos of the
wrong burglary in trial. Create it new every time: don't work off an old file. Now this does not
mean you can't cut and paste. Just remember the "carefully" part. It is also never a bad Idea to
keep a copy of everything you do in a trial. (Slide I.) '--S-.-a-te-o-'r'-T-e:-xa-· s-"-v.-O"-"(·i-s-T---D-r-u-n-k-
The element chart is a basic staple of the State's voir dire. Covering the ele-ments
says we are thorough, prepared, fair, and knowledgeable. Showing it as well as
talking about it demonstrates that we care that the jury understands it. An example of a
OWl element chart is DIRECTIONAL. (Slide 2.) When the jury sees and hears what the
issues are in trial, these issues are set in stone in their memories. Never pass up the
chance to reinforce such parts verbally and visually. '-------:----------
Use this slide to emphasize elements that will be in contest. Here the word
"intoxicated" is set out in red (I know it's gray in the photo, but trust me that in real life it is
fire-engine red). The bright color helps me explain that this element will likely be an issue in
trial. Reveal each element one at a time with a "text animation." I suggest simply using "appear"
rather than anything fancier-remember that less is more.
Slide 2
"/ consider trial
by jury as the
only anchor ever
yet imagined by
man, by which a
government can
be held to the
principles of its
constitution. "
-Thomas Jefferson
3. Don't read a statute without letting the jury read along.
Remember I told my OWl jury the issue was intoxication? Well, now I better tell
them what intoxication means under the law in Texas. They need to read the law. And while it
is good to hear it, it is much better to hear and see it at the same time. (Slide 3.) In OWls we
have to explain the unexplainable: implied consent. Read them the law, but more importantly
let them read along in PowerPoint. As you become more comfortable in PowerPoint, animate
the test as you go to help your explanation. (Slide 4.) Almost every trial will include a legal defi-nition
or explanation so let the jury read along. Creating this slide is easy. Find the statute ...
select the part you want. copy it, and then paste it on your slide. Couldn't be easer.
4. When you have a great story, the book should have pictures.
Imagine this from a State's attorney at trial: "Ladies and gentlemen, 'beyond a reason-able
doubt' is not beyond all doubt. When you work a jigsaw puzzle, at first you don't know
what the picture looks like. But as you go, it becomes clearer, and sometime before you put
that last piece in you know what the picture is. You know beyond a reasonable doubt. Sure, a
couple of pieces fell on the floor or were hidden by the family jokester, but you know. Trials
are like that too. Sure, some minor pieces may be left out. and some small details may be un-clear-
that's unavoidable. But you know without a doubt what the picture is."
This is a great voir dire story. But it works better with pictures. (slides 5 and 6) Every
great analogy or bit you do on voir dire or on close works better with pictures. Think about it:
Even adults will gather up for a reading of "The Cat in the Hat," but you lose even the most
dedicated book clubbers while reading "Atlas Shrugged" out loud for more than a minute or
two. Ayn Rand may be more literary than Dr. Suess, but his pictures help tell a story. (Special
thanks to Todd Smith, a CDA investigator in Lubbock County, for these great pictures.)
(Continued on page 12)
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S.
Department of Transportation, and/or Federal Highway Administration, U.S. Department of Transportation.
AMissing Tool in DWITrials (continued from page 11)
S. Comparisons, maps, and timelines work better in PowerPoint.
If you want the jury to see something, PowerPoint is your tool. Want
them to see and compare the book-in photos? (slide 7). How about signatures on
the OL (sober), booking in (intoxicated), and booking out (hungover but not intoxi-cated)?
(Slide 8).
Maps work far better and easier on PowerPoint that on chalkboards or
flip charts. Are you tired of officers not knowing scale or that "north is always up!"
Well, PowerPoint is your answer. (Slide 9) Timelines of your crime or punishment
priors are easy and visually persuasive. All of these demonstrative exhibits are easi-er,
faster, and cleaner when they are created and displayed on the computer.
6. A visual trial, like all other parts of trial work, is a work in progress.
Start simple and work up. Drop stuff that doesn't work. Steal great ideas
from other prosecutors. Refine your presentation. One of the nice things about
being a prosecutor is that we are a team. Scared of animation? Do it the first time
without and then add a little slowly. Soon you will find dozens more applications
than I have discussed here. When you do. share them with the rest of us!
While we are talking about sharing. if you have a great slide (or four) for
OWl trials, send them to me, one slide at a time, at abbott@tdcaa.com. I will start
compiling them and adding them to the slides in this article on the OWl Resource
page at www.TOCAA.com.
7. Just because you CAN do something doesn't mean you should.
OK here we are again. As my friend Todd Smith says at our Train the
Trainer program, "Power corrupts and PowerPoint corrupts absolutely." Avoid
fancy animations. colors, fonts. and clip art. Avoid like a contagiOUS disease
SOUNDS in your animations. Keep it simple, keep it short, and keep the number of
words on a screen to an absolute minimum. Show your PowerPoint around and be
ready to take advice.
In closing, each lawyer is charged with being competent in a matter they
undertake for a client. Prosecutors are no different. The need to make our trials
visual is profound. The ease of doing so using modern presentation software is
astounding. The fact we are not using this technology in criminal trials. the most
important communications taking place in our communities. is unacceptable. Take a
cue from the country's fifth graders and give PowerPoint a whirl.
Reprinted from The Texas Prosecutor journal with permission from the Texas
District and County Attorneys Association.
NHTSA 4th OF JULY PLANNER
NHTSA has provided free promotional materials available at the link below. It includes marketing
tools, such as press releases and animated banners for e-marketing, posters. Please feel free to share
this info. with law enforcement in your community!
http://www.stopimpaireddriving.org/planners/July4th2011/index.cfm
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S.
Department of Transportation, and/or Federal Highway Administration, U.S. Department of Transportation.
CROSSWORD!
w y K J Y J N K M N
Y R U J N F B Q 0 G
C B y y I Z G I I Y
K 0 y y L F T D Y L • File
Y B U B B A E Y E J • Judge
F D K R L E G D U J
M G E S T C Z I S N • Jury
0 U I D R R P E Z D
J G Q M I N 0 X X I
E y W P Z R P 0 E A
X 0 J B T Z Y X M E
Man arrives to Sullivan court for OWl hearinB drunk. carryinB beer
-by Victor Whitman, Times-Herald Record
MONTICELLO· A Swan Lake man facing a felony driving while
intoxicated charge showed up to Sullivan County Court on Monday
with a bag full of beer and was promptly thrown in jail without bail.
been represented by the Greenwald law firm but hadn't cooperated
with them.
Keith Gruber, 49, had a scheduled 10:30 a.m. pretrial hearing.
laBuda asked Gruber if he enjoyed his "liquid lunch."
Gruber indicated he did and said he was sorry.
Gruber came to court about an hour and a half late carrying a black
bag that contained four cans
of Busch beer. He also was carrying an open can of Busch beer and
was drunk, authorities say.
"It was obvious he was intoxicated," LaBuda said.
Gruber, who has prior DWI convictions, was arrested on Dec. 27 in
the town of liberty and was out on $30,000 cash bail.
He tried to throwaway the can. laBuda put Gruber in jail on no bail.
The bag was confiscated by court officers at the security check and
was produced to Judge Frank laBuda. Before Gruber arrived in
court, laBuda relieved Gruber's attorney from the case. Gruber has
To see full article: http://www.recordonline.comlapps/pbcs.dllfartide1
AID=%2F20110321%2FNEWS%2FII0329956
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S.
Department of Transportation, and/or Federal Highway Administration, U.S. Department of Transportation.
IU~derstanding 0.08 PAGE
"Promoting
'responsible drinl<ing
and driving' is like
promoting
'responsible drive-by
shootings'. ,.
-MAOO's Oriven
Magazine, Fall, 1997
(MADD}-Alcohol decreases a person's ability to drive a motor vehicle safely. The more
you drink, the greater the effect. The amount of alcohol required to become impaired dif-fers
according to how fast you drink, your weight, your gender, and how much food you
have in your stomach. Because of these variables, the safest choice is always not to drink
and drive.
Blood Alcohol Concentra-tion
(g/dL) I
.02
Typical Effects Predictable Effects on Driving
• Some loss of judgment
• Relaxation
• Slight body warmth
• Altered mood
• Decline in visual functions (rapid
tracking of a moving target)
• Decline in ability to perform two
tasks at the sametime (divided
attention)
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S.
Department of Transportation, and/or Federal Highway Administration, U.S. Department of Transportation.
,05 • Exaggeratedbehavior • Reducedcoordination
• May haveloss of small-muscle' Reduced ability to track moving
control (e.g.,focusing your objects
eyes) • Difficulty steering
• Impaired judgment • Reducedresponse to emergency
• Usuallygood feeling driving situations
• Lowered alertness
• Releaseof inhibition
• Muscle coordination becomes' Concentration
poor (e.g.,balance,speech, • Short-term memory loss
vision, reaction time, and hear- • Speedcontrol
ing) • Reduced information processing
• Harder to detect danger capability (e.g.,signaldetection,
• Judgment,self-control, rea- visual search)
soning, andmemory are im- • Impaired perception
paired
• Clear deterioration of reac-tion
time and control
.08
.10 • Reducedability to maintain lane
position and brake appropriately
.15
• Slurred speech,poor coordi-nation,
and slowed thinking
• Far less musclecontrol than • Substantialimpairment in vehicle
normal control, attention to driving task,
• Vomiting may occur (unless and visual and auditory information
this level is reached slowly or a processing
person hasdeveloped a toler-ance
for alcohol)
• Major loss of balance
I Information in this table shows the BAC level at which the effect usually is first observed,
and has been gathered from a variety of sources including the National Highway Traffic
Safety Administration, the National Institute on Alcohol Abuse and Alcoholism, the Ameri-can
Medical Association, the National Commission Against Drunk Driving, and
www.webMD.com.
*To see full article: http://www.madd.org/drunk-drivinglunderstanding-08.html
Admissin~Te~J
By Phillip Rosenbaum
(CNN) -- A blind Michigan man, rejected by three
law schools after scoring poorly on the LawSchool Admis-sion
Test, is suing the American Bar Association, arguing
that the group's exam requirements discriminate against the
visually impaired.
In a suit filed Tuesday in the U.S. District Court
for the Eastern District of Michigan,Angelo Binno alleges
the Chicago-based ABA prevents law schools from waiving
the admission test, known as the LSAT,for blindapplicants.
The suit alleges that visually impaired students face consider-able
difficulties with visually-oriented parts of the exam.
The association's rules require students to take a
"valid and reliable" test. Binno's lawsuit counters that the
LSAT is the only widely used, commercially available exam
for assessing law school applicants, leaving, in effect, no al-ternative.
The suit says according to ABA policy, schools
could face sanctions, be put on probation, or lose accredita-tion
if they fail to comply. Binno says this violates protec-tions
for the disabled provided by the Americans with Disa-bilities
Act of 1990.
"I want to help disabled and disadvantaged people
who otherwise would s~ruggle to have their voices be
heard," Binno said.
A spokesperson for the ABA said its lawyers have
not yet seen the lawsuit, nor been served with documenta-tion,
and the association could not comment at this time.
The Law School Admissions Council, a private not-for-profit
group based in Newtown, Pennsylvania, administers more
than 100,000 LSATsannually, according to its website.
Before 1997, law schools could decide whether blind people
must take the exam, according to Binno's lawyer, Richard
Bernstein, who is also blind. The LSATwas waived for Bern-stein
in 1995. He graduated from Northwestern University
School of law in 1999.
The litigation focuses on the analytical reasoning
or so-called logic games section of the test, which requires
"spatial reasoning and diagramming of visual concepts for
successful completion by most applicants," according to the
suit.
The complaint includes a copy of logic games from
an LSATgiven in 2007.
The directions atop the section of the test say "it may be
useful to draw a rough diagram" in figuring out the answers
to some questions.
"It's a situation where blind or visually impaired
people can't interpret a diagram since they don't have spatial
perceptions," Bernstein said.
"So how is it fair to require that type of question
to get into law school? At the end of the day, blind people
can't draw."
According to Binno's lawsuit, "being unable to
competitively answer questions on a quarter of the exam
causes plaintiff substantial embarrassment, emotional dis-tress,
and mental anguish during the exam, which adversely
impacts his overall performance."
Binno, who is not suing for monetary damages but
retains the right to do so, wants the ABAto change its poli-cies
on blind applicants and the LSAT.
"I want the American Bar Association to stop
telling blind people that they have to draw pictures in order
to go to law school," Binno said.
Binno, 28, is fluent in three languages, finished high
school in three years, graduated from Wayne State Universi-ty
in Detroit and worked with a unit of the U.S. Department
of Homeland Security with a high-level security clearance
handling.applications and credentials of immigrants, accord-ing
to the lawsuit.
He was laid off in 2008 and has focused on getting
into law school for the past three years. Binno is blind from
birth with a condition called retinitis pigmentosa.
"We're fighting so we can have more disabled
attorneys who are going to create more disabled rights,"
said Bernstein, who teaches social justice at the University
of Michigan,and said he runs marathons and has completed
an Iron Man triathlon.
*To see full article: htt~:lIwww.cnn.com/201I/US/OS/241
This material was prepared for the Highway Safety Office in cooperation with the National Highway Traffic Safety Administration, U.S.
Department of Transportation, and/or Federal Highway Administration, U.S. Department of Transportation.
I