The Voir Dire Process: Educating Future Jurors
You should keep in mind that all drivers are either potential jurors or potential clients. All drivers see billboards or advertisements with the message, “Drink, Drive, Go to jail”; “Buzzed Driving is Drunk Driving”; and “Over the Limit, Under Arrest.” It is important to reeducate clients and jurors with respect to the impression they may have about DWI cases. Example, if you have a drink then drive, you will automatically go to jail. We have to expose government misinformation at every chance we get, at parties, with family, with friends, with co-workers, and even during encounters with members of your communities.
Fortunately, you are often able to educate potential jurors regarding these issues during the voir dire process. If, as is typically the case, almost all potential jurors believe that your client is automatically guilty if they were driving and the officer could smell beer on their breath; I have to undo those impressions in voir dire. Simply put, voir dire is often the most important part of the trial, because that is your opportunity to identify those people who would definitely convict anyone who drinks and drives. You need to explain why a breath test result may or may not be accurate—i.e., just like you have to install virus protection and updates on a computer; if you do not maintain and upgrade a breath testing machine it will not be reliable. Also, most jurors do not know how much drinking you would have to do over a three-hour or one-hour period to blow a 0.08 test result.
With respect to the field sobriety testing process, many jurors think that anybody who is sober can pass those tests. However, when I am finished explaining what goes into the testing process, jurors will often conclude that nobody could pass those tests, sober or drunk. You have to get the jurors to honestly discuss how these tests are designed in a manner that causes people to lose their balance, that most people cannot pass those tests even when they have not been drinking and that most people have never practiced those tests. Jurors should hear many other factors that can influence our balance capabilities other than alcohol.
It is also important for jurors, and your client, to understand what the no-refusal program really means in relation to blood testing. Even if a “no refusal weekend” is in effect, that simply means that if you invoke your constitutional rights and refuse to cooperate, the police will obtain a blood search warrant; only then can they force you to submit to blood testing. Police cannot do that type of roadside blood draw against your will in Texas, but they can in Arizona and many other states in our nation. I like to ask people why refusing to give evidence against yourself can be used to obtain a search warrant to get that same evidence.
We do not have cops drawing blood on the top of the patrol car trunks, but as of September 1, 2013, any EMT in Texas is authorized to draw blood, even fire department EMTs who have no additional training or certification. That decision is probably going to open up a new line of defenses for us; if an EMT does not do the blood draw correctly it may change the blood alcohol content (BAC) result they obtain, or simply make that test unreliable.