Product Description
How the Best Lawyers Consistently Win DUI Cases
To win regularly, you need to capture both the hearts and the minds of jurors
The mind is simpler to persuade. You capture jurors’ minds through your cross examination, if the defense is one of prosecutorial problems … bad machine or bad procedures, or through your witnesses if the defense is something else … GERD, necessity, etc.
The heart is more difficult. To persuade the heart, you need to give jurors a simple answer to the question posed by family and friends, “How come you let the drunk go?” You need to make jurors want to let your client off.
Innovative DUI Trial Tools provides strategies and language for persuading both hearts and minds. These methods and arguments have succeeded in trial after trial, and can work for you.
Attention-getting openings
You can’t convince them if they aren’t listening to you. Here is how to grab jurors in the first sentence and get them thinking that a fellow citizen has been falsely charged:
- Providing a strong argument, not a trial road map. §3:04
- How to make it detailed and personal. §3:04
- Filling in the blanks with positive information. §3:07
- Pointing out the problems with the prosecution’s case. §3:08
- Boosting the officer and prosecution expert so you can knock them down on cross. §3:10
- How to use surprise to your advantage. §3:11
Nine pattern openings
- Deliberate refusal. §3:21
- Refusal due to confusion. §3:21
- Who was driving? §3:20
- Incorrect administration of field sobriety tests. §3:22
- So what? §3:22
- Rising blood alcohol. §3:23
- Keeping an open mind. §3:24
- It wasn’t my client. §3:25
- The missing element. §3:26
- And quick ideas for the crime, burdens, facts, law, and client testimony. §3:28
Intellectually-persuasive cross-examinations
Each discussion begins with an explanation of the why and how of the strategy, then lists the points to be made with that adverse witness, and finishes with the cross-examination questions to ask:
- Slipping in drinking receipts as past recollection refreshed. §5:14
- Unfair administration of field sobriety tests. §5:25
- Showing improper administration of one-leg stand, heel-to-toe, and horizontal gaze nystagmus. §5:26
- The 16 common attacks on breath tests. §5:41
- Using partition evidence to refute a charge of driving while impaired. §5:43
- Failure of the machine to measure breath temperature. §5:45
- Using a steepling example to criticize the lack of two tests. §5:47
- Failure of the machine to rule out interfering substances. §5:50
- Faulty slope detection test for mouth alcohol. §5:53
- False read in diabetes, hypoglycemia, and diet cases. §5:54
- Exaggerated score due to GERD. §5:55
- Presenting a rising alcohol defense. §5:60
- Destroying presumptions in a rising alcohol defense. §5:63
Closings which grab heart and mind
Of the two goals of DUI closings, the first — anticipating and countering prosecution arguments — is not difficult because DUI prosecutors are usually new and take a by-the-numbers approach. The second goal — convincing jurors your client is not guilty — is harder. The following strategies and language promote both goals.
- Neutralizing the prosecutor’s closing. §7:02
- Directly addressing the DUI defense stigma. §7:05
- How to use the story close. §7:20
- Using the here and now. §7:23
- Making an emotional appeal. §7:24
- The point-by-point rules closing. §7:30
- Picking apart with the field sobriety tests. §7:35
- Putting a list hook in your story close. §7:37
- The “piece of junk” closing. §7:50
Quick but memorable closing language for
- Bloodshot eyes. §7:21
- Machine reliability. §7:64
- Rising alcohol. §7:65
- Circumstantial evidence. §7:66
- Reasonable doubt. §7:67
- Missing element. §7:68
- Disagreement in deliberations. §7:70
- No testimony from State’s expert. §7:71
- Burden of proof. §7:80
Four complete closings
- Refusal. §7:100
- Breath test. §7:101
- High BAC. §7:102
- No test or other guy drove. §7:103
With this update, new author Jonathan Dichter shares some of his most successful DUI trial strategies.
CHAPTER 1 PRE-TRIAL DISCOVERY AND MOTION PRACTICE
Three new motions to suppress FST evidence:
- Motion to Suppress FST Evidence – Lack of Relevance, §1:82
- Motion to Suppress FST Evidence – Lack of Strict Compliance with NHTSA Standardization, §1:83
- Motion to Suppress Refusal of FSTs, §1:84
NEW CHAPTER 2A JURY SELECTION: A STORYTELLER’S APPROACH
This method of “collaborative” jury selection offers a way to find the jurors who are on your side and inspire other jurors to move to your side, right from the start. With it, you can get jurors to:
- Internalize the presumption of innocence. §2A:21
- Agree to be unfair and partial. §2A:22
- Internalize proof beyond a reasonable doubt. §2A:23
- Understand the meaning of beyond a reasonable doubt. §2A:24
- Like you and willingly reveal their biases. §2A:25
- Understand why the Defendant is not testifying and not hold it against her. §2A:26
- Describe good driving so you can later connect their descriptions with your client’s driving. §2A:27
- Doubt breath/blood testing accuracy. §2A:28
CHAPTER 4 CROSS-EXAMINATION
- “Baby stepping” a cop into saying your client is sober. Here’s an outline with sample questions for tying an officer to the police report. The goal is to establish right away that if it happened, it’s in the report. If it’s not in there, it didn’t happen. §4:04
- A strategy for winning refusal cases without the defendant’s testimony. Common wisdom is that when your client refuses to provide a breath sample, the jury needs to hear from him. Instead, try this refusal strategy that has worked so well for the author that he has lost only two refusal trials in 10 years. §4:49
CHAPTER 7 CLOSING ARGUMENTS
- Seven slides for combining the “baby stepping” portion of the officer’s cross examination with burden of proof arguments, §7:114
- Eleven slides on burden of proof and reasonable doubt. §7:01
CHAPTER 9 DRIVING UNDER THE INFLUENCE OF DRUGS
- Marijuana DUIs. Focusing on the pre-arrest investigation portions of a marijuana DUI, the author shows you how to use the NHSTA manuals and the lack of quality studies correlating marijuana consumption with driving impairment to challenge the prosecutor’s case. §§9:60-9:64
Chapter 1 Pre-Trial Discovery and Motion Practice
Chapter 2A Jury Selection: A Storyteller’s Approach
Chapter 2 Jury Selection: The Juror Elimination Approach
Chapter 3 Opening Statements
Chapter 4 Cross-Examination
Chapter 5 Preparation of Defense Witnesses and Direct Examination
Chapter 6 The Client’s Testimony
Chapter 7 Closing Arguments
Chapter 8 Demonstrative Evidence
Chapter 9 Driving Under the Influence of Drugs
Appendix A The District Attorney’s Manual
Appendix B Deposition of Dr. Marceline Burns
Appendix C Arrest Video Analysis Form
Appendix D Comprehensive Discovery Request to Laboratory in Blood Case
Appendix E Framing Techniques
Appendix F Important Articles, Books and Other Writings for DUI Defense
Jonathan Dichter is the managing attorney and founder of Dichter Law Office, PLLC, a small firm north of Seattle, Washington practicing exclusively in DUI defense. He received a Bachelor of Arts in the American Political System from the University of Akron, Ohio. He received his juris doctorate from the Seattle University School of Law cum laude. After graduation from law school, Jonathan was hired by a contract public defender’s office to handle the public defense for a suburb of Seattle, where he handled hundreds of misdemeanors and gross misdemeanors solo and with part time support staff.
In 2009, after working as a private associate attorney for a few years, Jonathan opened Dichter Law Office, PLLC, which focused at the outset on low level criminal offenses, such as DUI and minor assaults. After a few years, Jonathan focused his practice exclusively on DUI defense and become a sought after resource and teacher for other attorneys and organizations. His skillset and background as a performer and storyteller bring a new and transformative spin into the courtroom during DUI trials, and the level of polish he applies to these cases in their presentation can rival the big budget week long felony trials you see on television. But he does it on a smaller scale, and in a day or two.
As a leader in the field of DUI defense, Jonathan has achieved many accolades. Jonathan is:
• A NHTSA qualified Instructor of Standardized Field Sobriety Tests (SFSTs) under the guidelines of the International Association of Chiefs of Police (IACP) and the National Highway Traffic Safety Administration.
• A NHTSA qualified graduate of both the basic SFSTs course and the Advanced Roadside Impaired Driving Enforcement (ARIDE) program.
• The author of “The DUI Survival Guide: For Good People Who Made Simple Mistakes.”
• A frequent contributor to the Washington Association of Criminal Defense Lawyers (WACDL) DUI Newsletter.
• A lecturer and teacher to:
• Defense lawyer organizations.
• Public Defense Agencies.
• County Bar Associations.
• State Certified Treatment Agencies.
• Forensic Sobriety Assessment Certified.
• A contributor to the WACDL Defense magazine.
• The author of an article about client respect and care that is required reading in some public defense agencies in Washington.
• Frequently the highest rated speaker at conferences he teaches at.
When he is not defending clients or teaching attorneys how to more effectively advocate, Jonathan is an accomplished speaker, actor, improviser, comedian, singer, magician, author, and more. His passion and skills with storytelling led him to the personal revelation that dramatic presentation and thematic storytelling were not only possible in DUI (and indeed criminal) defense, but in fact, necessary to bring those skills to the next level. He’s also the proudest Dad on Earth.
Bruce Steven Kapsack is the senior partner of Kapsack & Bair, LLP, an AV rated firm practicing exclusively in DUI/ DWI defense. He received his Bachelor of Arts in Interdisciplinary Studies from Plymouth State College and his Juris Doctorate from American University. After graduation from law school, Mr. Kapsack was hired by the Bronx Public Defender where he rapidly rose to the position of Senior Trial Attorney. During the five years he was there, he became one of the top trial attorneys in that office. After moving to California and opening his own practice, Mr. Kapsack became the Senior Attorney for the Office of Citizen Complaints, the San Francisco Police Department’s Internal Affairs Office. His success there resulted in a Commendation from the Board of Supervisors upon his departure. As a pioneer in the field of DUI/DWI defense, Mr. Kapsack has accomplished many firsts. He is:
• The first attorney in California to take and pass the American Bar Association’s Board Certification exam for DUI Specialization.
• The first attorney in California to become an Instructor of Standardized Field Sobriety Tests (SFSTs) under the guidelines of the International Association of Chiefs of Police (IACP) and the National Highway Traffic Safety Administration.
• The first attorney in California to qualify as a DRE under Drug Ensic Systems.
• The first and only attorney in California to own and operate the Draeger 7410 and 7110 breath machines.
• The first attorney in California to own, operate and use in court an Intoxilyzer 5000 breath machine.
• The first and only attorney in California to depose Dr. Marceline Burns, the person responsible for the establishment of standardized field sobriety tests.
• One of the first attorneys to be trained as a user and maintenance technician of the Alco-Sensor IV handheld roadside breath machine.
In addition to these milestones, Mr. Kapsack has been a consultant on a number of seminal cases throughout California and the United States, including State v. Dahood (New Hampshire) and People v. Chun (New Jersey). He has worked or lectured with virtually every major expert in the DWI/DUI arena, such as:
• Dr. A.W. Jones – the foremost expert in DUI. • Dr. Kurt Dubowksi – the foremost prosecution breath expert.
• Dr. Richard Jensen – the foremost defense breath expert.
• Dr. Michael Hlastalla – the foremost pulmonary expert.
• Dr. Fran Gengo – a noted pharmacologist.
• Dr. Al Staubus – a noted pharmacologist.
• Dr. John Churchill – New Zealand’s top breath expert.
• John Fusto – owner of the Datamaster Corporation.
• Hansulei Ryser – inventor of the Draeger breath machine.
• Norm Forte – California’s top roadside breath expert.
• Dr. Marceline Burns – developer of standardized field sobriety tests.
Mr. Kapsack has written extensively about DUI/DWI defense. He contributed to California Drunk Driving Laws by Ed Kuwatch (James Publishing) and wrote the yearly supplements from 2003 to 2007 for California Drunk Driv- ing Defense by Lawrence Taylor (Thomson-West Publishing), the two seminal works in the field in California. He writes a regular update on California DUI for the Public Defenders and has written for DUI/DWI publications in other states including New York, Nebraska, Ohio and nationally for The Champion magazine. When he is not defending clients, Mr. Kapsack teaches other attorneys the keys to successful DUI/DWI defense. His lectures for the State Bar of California and for the California Public Defenders are among the best-attended programs offered by those organizations and they are videotaped and used for continuing education and training.
