The DWI Case Cross Examination Checklist



Purpose: to get the cop in the corral. You don’t want miraculous on-the-spot recollec-tion of harmful facts not in the report.

  • You wrote up a report of the incident immediately afterwards
  • Purpose of report is to make record of details
  • Included everything important
  • Reviewed prior to trial
  • Still had to refer to it many times on direct
  • Couldn’t recall specific facts without it
  • Don’t now recall any significant fact not in report
  • Memory certainly better then than now
  • Have ticketed many people before/ since
  • Have written many reports before/ since
  • Can’t name person ticketed before client
  • Can’t name person after client
  • In fact, have sometimes mixed up facts of one case with another.

You have now restricted the officer to the facts in the report, pointed out the problems of memory, and set the stage for challenging the cop’s “opinion” of the client’s condition.


Purpose: to use the cop’s experience and confidence against her or him. Is it fair com-parison to your disadvantaged, nervous client who’s never testified before?

  • You appear quite comfortable testifying
  • Have done so many times
  • Trained how to testify persuasively at academy
  • Told to look at jury
  • How to hold hands, dress, etc.
  • Lots of practice.

You’ve minimized the advantage of the cop’s “professional” presentation with “ama-teur” defense witness.


Purpose: to point out the cop’s bias, that his/ her mind was made up from the beginning of the investigation, that he/she is never wrong.

  • Do you drink
  • Ever drive after drinking
  • Agree not to inherently unsafe
  • No quarrel/legal to drive after drinking
  • Any problems w/alcohol-personal/family/friends.
  • Ever in accident involving drunk driver
  • In middle of night – you look for drunk drivers
  • When first noticed client, thought might be drunk driver
  • People often drive (like client drove) who had zero to drink.
  • When smelled intoxicants = increased suspicion
  • Started looking for signs/symptoms of intoxications
  • No medical degree
  • Based “opinion” on observations of defendant that night only
  • Never testified DWI defendant not under influence
  • Never testified for a defendant in a DWI case.
  • Concluded every person arrested for DWI was positively guilty
  • Have never been wrong.

You’ve set the stage for argument that the officer’s conclusion was inevitable, based on his/ her understandable bias- not that the cop is “bad”, merely human.


Purpose: to establish that the client’s driving wasn’t inherently dangerous (where appli-cable) and to list all of the things the client did properly.

  • Cop’s driving:
  • Sped up to catch client
  • How fast did you go
  • No traffic had to swerve or brake
  • Your speed not necessarily dangerous (then neither was the client’s)
  • Client’s driving/ actions:
  • Client’s speed constant
  • Lane travel correct
  • Signaled lane changes/turn
  • Responded properly to emergency lights
  • Parked safely
  • No problem placing car in park, setting brake, opening window.
  • No problem with

    a. understanding your questions

    b. getting license out

    c. getting wallet out

    d. putting wallet away

    e. opening door

    f. stepping out of the car

    g. closing door

    h. walking to shoulder

  • Didn’t appear unsteady on feet
  • Did everything you asked/ cooperated


Purpose: to point out the inherent unfairness of field sobriety rest and to create a mental image for the jury of the true conditions.

  • Cop’s experience with FSTs:
  • First performed at academy
  • Hundreds of times since
  • First time in middle of the day
  • In well lit room
  • When well-arrested
  • Like a “game”
  • When relaxed-not stressed out
  • No traffic whizzing by
  • No police radio chatter
  • Comfortable temperature
  • Comfortable clothing
  • Didn’t do as well first time as now
  • Did better with practice
  • Middle of your work day
  • Well after defendant’s normal bedtime
  • Setting the scene of client’s tests:
  • Parked your car at angle behind client’s; why (for safety due to passing cars/trucks)
  • Had client move to shoulder because traffic dangerous.
  • How wide was shoulder
  • Gravel/ guard rail at shoulder’s edge.
  • Traffic continued to pass
  • Left emergency lights on
  • Left headlights on/ brights
  • Did client face towards or away from traffic (if toward: blinded by headlights; if away: no warning of approaching cars/ trucks)
  • Dark/erratic lighting
  • Numerous moving shadows (passing headlights)
  • Cold/wind/rain/snow
  • At least some slope (for runoff0
  • Gravel/debris collects on shoulder.
  • Don’t know how long since last swept
  • Onlookers
  • Chatter from police radio
  • Distraction from other officers/passing cars
  • Buffeting from passing cars/ trucks/semis/motor homes
  • What FST’s actually measure:
  • Intended to measure general balance, coordination and ability to follow instruc-tions
  • Use same tests for everyone
  • The tests do not vary depending on differences in:

    a. Age

    b. Physical condition

    c. Illness

    d. Fatigue

    e. Suitability of the FST site

    f. Nervousness

    g. Whether overweight

    h. Type of shoes

    i. Type of clothing

  • Most people nervous when stopped
  • Normal for people to make physical and mental mistakes when nervous
  • Don’t know what was going through clients mind during these tests
  • No objective way to measure level of nervousness of client
  • No way to measure client’s ability to handle stress.