Preparing for Trial – CDAC Member Portal

Charging

Offices differ in their approaches to charging, but regardless of policies, perspective, or local politics, all prosecutors must ensure:

- - There is probable cause to support each charge,
  - Each charge is or will be, with sufficient preparation, provable beyond a reasonable doubt,
  - Each charge and the charges when taken together appropriately frame the case for the jury without overreaching, and
  - The charges are charged correctly.

In misdemeanor and traffic cases, the official charging document is the traffic ticket written by the police officer. Police officers may enforce the law and issue tickets, but they are not attorneys and sometimes get the specific charge wrong. These errors in the charging document can be fatal to your case. If you do not check the traffic ticket, you may be in for an ugly surprise at trial. Always check the charging document to make sure each part is exactly how you want it to be for trial. If you want to make any changes, those changes should be made by motion prior to trial.

In impaired driving cases, the most common issues that arise in charging include:

1. 1. A second or subsequent offense being charged as a first offense;
  2. Failing to charge the >.2 BAC aggravator;
  3. Overcharging (charging a multitude of offenses when only a few would suffice);
  4. Errors in the other charges, such as charging “Hit and Run—Unattended Vehicle” when the vehicle was, in fact, attended.

Reviewing Evidence

One of the keys to trial in a DUI case is to carefully review the evidence you have to prove your charges, especially in light of the potential defenses. DUI defenses tend to fall into three types:

1. 1. Not impaired,
  2. Didn’t drive, or
  3. Drove but drank afterward.

“Not impaired” defenses focus on:

1. 1. Minimizing any “bad driving,”
  2. Undermining or emphasizing the SFSTs,
  3. The chemical test procedure and results,
  4. Explaining reasons for refusing a test, or
  5. Providing alternative explanations for any indicia of impairment, such as disabilities or other physical conditions like temperature or road grade.

“Didn’t drive” defenses focus on:

1. 1. Alternate suspects,
  2. Weak evidence the defendant was the driver, or
  3. Lack of movement of the vehicle.

“Drove but drank afterward defenses” focus on:

1. 1. Lack of evidence around impairment at time of driving,
  2. Drinking outside vehicle,
  3. Presence of alcohol in vehicle or absence of evidence excluding alcohol from the vehicle, or
  4. Gaps in witnesses and issues with sequencing events.

Try to identify which of these defenses is most likely and then identify which evidence best proves your case and disproves that defense. If you aren’t confident that you can disprove a defense, you either need to further develop your evidence or consider dismissal of the case.

Discovery

In addition to police reports, the discovery most commonly at issue in DUI cases includes:

- - Video recordings, including body-worn camera, surveillance, and any civilian videos;
  - Intoxilzyer 9000 documents and expert disclosures;
  - Blood test reports and expert disclosures;
  - 911 calls;
  - Dispatch reports (sometimes called “CAD” reports); and
  - Impound inventory reports and associated policies

Failing to timely obtain and discover any of this evidence could scuttle your case. Conversely, timely obtaining and providing this evidence will usually help you to more quickly resolve your case.

Filing and Responding to Motions

The most common motions issues in DUI cases include:

1. 1. Search and seizure,
  2. Reasonable suspicion and probable cause,
  3. Voluntariness,
  4. Miranda,
  5. Expressed Consent, and
  6. Shreck (challenging SFSTs, for example)

Although you will most likely respond to defense motions in impaired driving cases, you do not typically need to file motions in most DUI cases.

Meeting with Witnesses

In impaired driving cases, your law enforcement officer might be your only witness. If, by chance, you have a lay witness, be sure to prepare them for trial. Not only might they be your only non-law-enforcement witness, but they likely have also never had any experience with the justice system and probably never anticipated being commanded by subpoena to testify in a criminal case. Ideally, meet with them early and ask questions that help you prove your case and defeat any anticipated defenses. When you ask them questions, have an investigator present so you can ask for details the officers didn’t ask, document the witness’s answers, and then discover any new inculpatory or exculpatory information to the defense.

Be sure to subpoena all witnesses you may call at trial, including law enforcement. Failure to do so may result in the exclusion of key evidence at trial if your witness fails to show for trial for any reason, including completely legitimate reasons like illness.

Resources

CDAC Videos

Evaluation and Preparation of the DUI Case

Miranda and Other Roadside Issues

Colorado Resources

Preparing for a Shreck Hearing

Motions Database

National Resources

Constitutional Law Issues in Impaired Driving Cases