The attorneys of the Marc Lopez Law Firm recently headed west for an enormous legal convention put on by the National College for DUI Defense and the National Association of Criminal Defense Lawyers. The 2019 DWI Means Defend With Ingenuity conference was held at the Planet Hollywood Las Vegas Resort & Casino, and while the setting suggested glitz and glamour, the substance of the seminars made this three-day conference a must-attend for lawyers who are serious about defending clients accused of DUI / OVWI.
The action started early on Thursday, September 19, with opening remarks and a brief session reminding those in attendance about the power of language. The gist: As defense attorneys, we tend to be preoccupied with the task of shielding our clients from unjust laws and questionable science, but we’d all do well to remember that the way we use words to express ourselves will necessarily color the way clients and jurors feel about us.
In the next talk, Attorney Joseph St. Louis of Arizona jumped right into the science of retrograde extrapolation. In the context of DUI / OVWI, this refers to an attempt by the State to use a broad assumption—a standard human elimination of alcohol rate—to determine a defendant’s blood alcohol concentration (BAC) at an earlier point in time. Let’s say, for example, that at 9:00 p.m., you’re pulled over by police. By 10:30 p.m., the State has obtained a sample of your blood, and this sample ultimately reveals a BAC of 0.08. In this type of scenario, the State will commonly present an “expert” witness at trial to testify that if your BAC was 0.08 at 10:30 p.m., then it was likely as high as 0.1025 when you were driving at 9:00 p.m.
Attorney St. Louis, a nationally renowned DUI / OVWI lawyer, carefully explained how the entire concept of retrograde extrapolation has been debunked by two undisputed titans in the field of forensic toxicology, Dr. Alan Wayne Jones and the late Dr. Kurt Dubowski. The inevitable conclusion is that retrograde extrapolation has no honest place in the prosecution of DUI / OVWI charges.
Our chemistry lesson was followed by a lecture on international travel by Canadian attorney Marisa Feil, who wanted to remind everyone that a DUI / OVWI conviction—or even just pending charges—can complicate matters when it comes to crossing our northern border. Did you know that Canada considers DUI / OVWI to be a crime of moral turpitude? Turpitude, of course, means depravity or wickedness, so crimes of moral turpitude are meant to refer to those actions that are not simply illegal, but also tend to reveal a person’s indecent or malignant character. In the U.S., this category includes things like murder, rape, abuse, kidnapping and theft. In Canada, it also includes DUI / OVWI. While this isn’t the end of the world for someone with a checkered driving history, it does mean that an impulsive weekend trip to Vancouver is probably out of the question. Folks with a DUI / OVWI in their past can still visit our neighbors to the north, but they need to plan ahead. This is a seemingly narrow topic that comes up surprisingly often in the practice of Midwestern criminal law.
The first day wrapped with a session on the cross-examination of experts from Texas attorney and DUI / OVWI-defense trailblazer Troy McKinney. Focusing on ways to attack the honesty and credibility of the prosecutor’s most common witnesses—police officers and State-employed science personnel—this lecture was incredible. The quantity and quality of information presented by Attorney McKinney was overwhelming in the best possible sense, and some of his tips are sure to make appearances in future jury trial appearances by attorneys from the Marc Lopez Law Firm.
Friday returned to the topic of cross-examination for a day-long workshop led by Attorney Larry Pozner, the man who literally wrote the book on the subject. Attorney Pozner isn’t someone who’s content to coast on reputation, reciting pieties and rehashing his greatest hits—he’s a legitimate trial attorney who’s as entertaining as he is educational. While this wasn’t the first time the lawyers of the Marc Lopez Law Firm had the chance to hear Atty. Pozner speak, this presentation was notable for being specifically tailored to DUI / OVWI defense.
The Saturday schedule was arranged into a number of small group sessions, allowing attendees to select subjects that were interesting or otherwise relevant to their respective practice areas, including Blood Testing: From Test Tube to Print-Out, Dealing With Substance-Abusing Clients, and many others. Between the four of them, the attorneys of the Marc Lopez Law Firm were able to attend Case Law Update, Cross-Examination of the Breath Test Operator, Field Sobriety Test Cross-Examination and Storytelling: Enhancing Your Persuasive Talents During Opening and Closing.
The Case Law Update session, led by Attorney Donald J. Ramsell out of Illinois, made a point of highlighting new and interesting DUI / OVWI-related appellate cases throughout the nation. This may sound a little dry, but Attorney Ramsell is one of those gifted speakers who could read you the dictionary and make it sound like a polished comedy performance, enlivening his material with charm and wit. Of course, not all of the national case law updates are going to be applicable in the Hoosier State, but any serious attorney will want to keep up with the latest trends and developments in their chosen area of practice. What arguments are being made in other jurisdictions, and how are those arguments being received by the courts? Change comes eventually, even in Indiana.
Cross-Examination of the Breath Test Operator was led by Texas attorney Doug Murphy, and as you might’ve guessed, it concerned the most efficient means of cross-examining the operator of a breath test. As is so often the case, it seems that the foundation for this approach is actually laid during jury selection. Much of this session was devoted to how to question and identify jurors who’ll be receptive to a breath test-oriented defense. This session placed a heavy emphasis on practicality and offered a ton of useful tips.
Nebraska attorney Bell Island considered a similar question in Field Sobriety Test Cross-Examination, which focused on countering and complementing the testimony offered by the State, specifically by officers on the scene. Field sobriety tests are what these officers use to make a preliminary determination of intoxication, and while they aren’t the final word, prosecutors tend to lean on them heavily at trial. Attorney Bell’s presentation pointed to the fact that while it’s very easy for a suspect to do something in the moment that might be interpreted as a sign of intoxication, the results of the field sobriety tests often contain a treasure trove of tasks the person performed correctly. It’s well worth reminding the judge or jury of these facts when a client’s future is on the line. This session also stressed how important it is for DUI / OVWI attorneys to be familiar with the standardized field sobriety tests and the way they’re taught in the academy, because without this knowledge, it’s much harder to spot when the officers have done something incorrectly.
Finally, Wisconsin attorney Andrew Mishlove emphasized the importance of narrative in Storytelling: Enhancing Your Persuasive Talents During Opening and Closing. Attorney Mishlove has made it his business to understand the science of DUI / OVWI defense, and he’s been regularly recognized for his efforts. His workshop was a refreshing instructional on how to present hard science to a jury in an understandable and relatable way. Here’s a point to consider: In a DUI / OVWI case, simply showing that your client is a good person will never be enough to prevail over good science that demonstrates intoxication. If the State is using bad science, however, this is the perfect opportunity to explain how a good person (your client) has come to be charged with a crime. Even the most cynical jury can grasp the concept of a blameless person being mistakenly accused.
All in all, the 2019 DWI Means Defend With Ingenuity conference was a great success, and it certainly didn’t hurt that it was held in Las Vegas, where life is luxurious, the weather is beautiful, and it’s always cocktail hour. For the record, the gentlemen pictured below would like to note that they developed a particular affinity for the Planet Hollywood pool and the Gordon Ramsay Steak.
The attorneys of the Marc Lopez Law Firm take DUI / OVWI defense as seriously as they take anything. They’ve spent their time, resources and energy learning everything possible about DUI / OVWI defense in order to provide the best possible service to their clients. If you have a question about DUI / OVWI charges in central Indiana, give us a call at 317-632-3642, or send us an email.