Developing a Case Theory in Colorado DUI Cases

The theory of the case should be considered from the moment the client finishes telling his lawyer what happened. It begins during the first interview and is refined as each bit of information is received. It encompasses what the DA must prove, what the lawyer can prove, what objections the lawyer can make, what motions he or she can argue. It considers the discovery the lawyer has, the discovery that is needed, and the way to go about obtaining it.

The theory will dictate how the lawyer dresses the client, what he says in opening statement, and what jurors he allows to serve on the jury. The theory of the case is the theme of the defense it sets the stage for what will be presented by the defendant and it must at least be considered before any meaningful progress is made on the file.

The first thing to do is to put together a proof chart. Very simply the lawyer should take a ‘‘yellow pad’’ and draw a line down the middle separating the 2 sides on a 40% / 60% ratio. He then gets a copy of the statute the client is alleged to have violated. Each element is then assigned a number and then they are recopied in elemental order onto the smaller half of the yellow sheet. Leaving enough space between each to allow the lawyer to copy on the larger part the different witnesses and exhibits that go toward proving that element.

• The Proofs
• Operation of the Motor Vehicle
• Under The Influence of Alcohol

Now a view of the available proof of each element followed by possible defenses gives our chart some shape:

1. witness saw defendant driving.
2. defendant is registered owner of vehicle.
3. defendant states ‘‘I was driving home from my surprise birthday party at the Dublin Pub’’.

Defenses: it was dark and the witness was driving in the opposite direction at a high rate of speed thereby hindering the witnesses; ability to observe; car registration is not relevant to operation and even if it is ‘‘some’’ proof it is at best circumstantial; co-occupant of defendant’s vehicle states she was driving; statement taken in opposition to defendant’s 5th Amendment rights; notice of statements received late.

Motor Vehicle: Defendant found inside his 1989 Dodge Stealth which had gone off the road and struck a tree.

Defense: the vehicle was inoperable at the time of defendant’s arrest. The defendant did not have control over the vehicle as there was no key in the ignition nor on the defendant’s person.

1. defendant refusal of a breath test provides a presumption that the test would have shown that the defendant was over the legal limit at the time of the test.
2. defendant is observed by both the arresting officer and the Breath technician with glassy eyes, odor of alcoholic beverages on his breath, unable to walk on straight line.
3. defendant was administered a Horizontal Gaze Nystagmus test by the Breath test at the time he refused the breath test and failed the test.

Defenses: the defendant was not offered the test within two hours of his arrest; the defendant was arrested in violation of his 5th and 6th amendment rights.

The defendant was injured in the accident; the gaze test was improperly given; the scientific proposition behind the gaze test is flawed; the defendant has a knee problem

A summary of the theory is then put into a short simple one paragraph statement that tells the jury why the defense should prevail at trial.

In the case above the prosecution statement might read something like this:

‘‘The defendant, after having consumed a number of alcoholic beverages at a surprise party given in his honor, drove his 1989 Dodge Stealth on Smith Road in Arapahoe County, Colorado at a high rate of speed, past Agnes DeRosa, and lost control of the vehicle leaving the roadway and having his forward progress halted by his running into a tree.

Officer Stephan J. O’Keefe upon arriving at the scene spoke to the defendant who admitted that upon arriving at the scene spoke to the defendant who admitted that he had been drinking before operating the car. He also had strong odor of alcoholic beverages on his breath.

Appearing to have no injuries from the accident the defendant was unable to walk a straight line, and his eyes were glassy. After telling the defendant that he was being placed under arrest for DUI the defendants’ companion Helen Hanson stated that she was driving the vehicle however the vehicle was registered to the defendant. At the central testing unit after being given the opportunity to submit to breath testing under Colorado’s Express Consent Law.

He failed a horizontal Gaze Nystagmus test administered by Sgt. Lawrence Wojohowitcz the Breath Technician.’’

A defense theory will be a bit longer if the evidence is readily available (i.e. your client remembers what happened or a witness comes forward). Now let us explore how to use this Theory and apply it to the rest of the DUI case.

There will be a Department of Motor Vehicles hearing on the refusal. And the lawyer should defend it and plan on attending it. Most prosecutors are not going to want to turn over testimony earlier than they have to. So the lawyer should be aggressive in the discovery search … the theory of the case will help.

The defense theory can also be developed to plan out the Defendant’s own investigation. For example an accident reconstruction expert could be retained to show that the road was not safe even if the vehicle was operated in a cautious manner.

A medical expert might be able to shed some light onto how our client’s medical condition affected the results of the horizontal gaze nystagmus test and the other field sobriety tests.

The defense theory can also be used to develop becomes very important as well. If the client when stopped said ‘‘I was not driving the car because I had 8 beers tonight’’. And the district attorney failed to give proper notice of their intent to use the statement against the defendant on the people’s direct case the defense attorney could successfully move for preclusion. If however counsel was going to put the defendant on the stand to say basically the same thing he told police at the scene of his arrest, counsel may decide that he would rather move to suppress and gain a hearing and it’s attendant discovery opportunity.

Thus counsel’s theory of the case would be particularly important in determining what motion’s he will make. Likewise a Deputy District Attorney, knowing that there is a witness that will say she was driving the vehicle instead of the defendant might want to deny the defendant the opportunity for discovery and voluntarily decide not to use the statement on her direct case.

The information the defense lawyer receives from personally speaking to investigators eye-witnesses, prosecutors and the lawyers own research will lead the lawyer to formulate and reformulate both the theory and the case statement.

The courts ruling in pre-trial hearings on Motions in Limine ( a motion to keep out evidence ) may also affect the theory of the case. After each revelation is made it will impact the theory of the case .. which should continually be revised even as the trial – if it happens – progresses to verdict.

The defense theory of the case will become the basic outline of the lawyers closing argument and a good theory of the case will also help the lawyer to organize his work, prepare for trial and can also be a road map to a hopefully successful verdict.