Common DUII Trial Objections

This wikilog article is a draft, it was not published yet.

by: Eder.ben • March 12, 2011 • no comments

When I first started with Thuemmel and Uhle in 2005, I was advised to make a trial notebook for issues that may arise during the course of a trial. One of the best things you can have in your trial notebook is a list of cases to cite when the prosecutor makes an improper argument or the police officer offers inadmissible evidence. After you object, it is important to be able to point the Judge to the authority for your objection. The objections need to come immediately when the inadmissible evidence is offered and you need to ask for a mistrial at that time if that is the remedy you are seeking. Here are some of the issues that have arisen during my DUII trials.

• Neither the police officer nor the prosecutor are allowed to correlate defendant's actions with the Blood Alcohol Level. In Ross, the prosecutor asked the police officer if the defendant s actions corroborated the .08 breath test result. The court reversed because a police officer is not qualified to give that opinion no matter how many DUII arrests he/she has made. State v. Ross, 147 Or App 634 (1997)
• The police officer is not allowed to speculate as to BAC at the time of driving. In Johnson, the police officer testified that it appeared Mr. Johnson was sobering up at the time of the breath test therefore the .07 breath test translated to .08 or .09 at the time of driving. The Court of Appeals relied on Ross and affirmed that blood alcohol levels must be proven by a chemical test. State v. Johnson, 219 Or App 200 (2008).
• The police officer is not allowed to testify as to what defendant's BAC would have been had the defendant taken the breath test. Similar to Ross and Jacobs, the only way the state can prove a blood alcohol level over the legal limit is with a chemical test, not based on a police officer's observation and experience. State v. Jacobs, 109 Or App 444 (1991)
• A police officer is not allowed to testify that your client was over the legal limit or likely over the legal limit because there were 4 or more clues observed on the Horizontal Gaze Nystagmus test. This is reversible error - so ask for a mistrial if the state offers evidence of blood alcohol over the legal limit with HGN clues. State v. Fisken, 138 Or App 396 (1996)
• The prosecutor is not allowed to ask any witness whether he or she agrees or disagrees with another witness's testimony. This is not a DUII case but this is an important case to know for all trials where the prosecutor asks your witness if she agrees or disagrees with another witness. Commonly the DA asks if the witness thinks the arresting police officer is lying. Citing Middleton, the Court in Milbradt expressly held that in Oregon a witness, expert or otherwise, may not give an opinion on whether he believes another witness is telling the truth. An opinion that a person is not deceptive, could not lie without being tripped up, and would not betray a friend (to wit: the defendant) is tantamount to the same thing. State v. Milbradt, 305 Or 621 (1988)
• The prosecutor may not ask the jury to substitute its desire for risk avoidance for finding the elements of the crime. In this case the prosecutor rhetorically asked the jury to let its verdict answer the question whether it would drive on the same road as the defendant on the evening in question. The conviction was reversed. Although this was not an Oregon case, I think it has persuasive authority for arguing that the state is not using the legal standard set forth by the legislature. The prosecutor can't use the instinctive need to do what is necessary to survive danger as a means for convicting someone. State v. Pineau, 463 A2d 779 (Me 1983).
• It is reversible error for the prosecutor to infer that the state has other evidence that is inadmissible. State v. Newburn, 178 Or 238, 241 (1946).
• A prosecutor may not state that "90% of those indicted plead guilty". I would ask for a mistrial. If the judge gives a curative instruction rather than a mistrial, I would ask the Judge to state the prosecutor s comment was improper disregards the presumption of innocence and that innocent people have to plead not guilty to have their day in court too. State v. Flores, 31 Or App 187 (1977)
• A comment on any exercise of a Constitutional Right is usually reversible error. You can ask for a mistrial or curative instruction if the prosecution elicits testimony of defendant asserting a constitutional right if there is any likelihood an adverse inference can be drawn by the reference. The most common comments on constitutional rights address defendant's silence or request for an attorney. State v. McCartney, 65 Or App 766 (1983)
• It is improper for the prosecutor to tell the jury that the defendant wanted to make a phone call because the inference is that he would have been calling for legal advice. State v. Veatch, 223 Or App 444 (2008)
• It is reversible error for the prosecutor to comment on defendant s silence in the state's case in chief. In Marple, the defendant said, "I'd rather not say" when the police officer asked what a small bag of drugs was. The right to remain silent applies pre-miranda so the state should not have been able to offer Mr. Marple s refusal to say what was in the baggy. State v. Marple, 98 Or App 662 (1989)
• It is improper for the prosecutor to state that the defendant never explained or can't explain some fact or situation. This happens in closing argument when the prosecutor doesn t understand that the defense has no burden to present evidence or testify. State v. Macomber, 18 Or App 163 (1974)
• It is improper for the prosecutor to tell the jury that the states evidence is uncontradicted or unimpeached if the defendant himself is the only possible witness who could contradict the evidence. State v. Buck, 239 Or 577 (1965)