Solving DUI Mysteries In Las Vegas

How to improve litigation skills which lead to more acquittals (not guilty verdicts) in DUI/OVI cases can be a mystery. That’s why there are organizations like the National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL). Those organizations co-host an annual DUI defense seminar in Las Vegas, and the theme of this year’s seminar was “Solving The Mystery of DUI Acquittals”. I attended the seminar, as I have for over 15 years, and took away valuable insights.

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Day One: Retrograde Extrapolation & Cross Examination
On the first day of the seminar, there were two presentations which stood out to me. The first was Joseph St. Louis’ discussion of retrograde extrapolation. St. Louis is a DUI lawyer in Tuscon and a regent for the NCDD. After teaching how alcohol is absorbed, distributed and eliminated, he explained retrograde extrapolation. Retrograde extrapolation is the act of calculating a person’s blood alcohol concentration (BAC) at a previous time based on the BAC at a later time. St. Louis highlighted articles from scientific journals concluding retrograde extrapolation is a dubious practice due to all of the possible variables in the calculation, most of which are unknown to the person completing the calculation.

Retrograde extrapolation is important in Ohio because our OVI law prohibits operating a vehicle if, at the time of operation, the driver is under the influence or ‘over the limit’. In an OVI trial, the prosecution introduces the result of a blood/breath/urine test, and that test may be done up to three hours after operation of the vehicle. That test result is circumstantial evidence of the BAC at the time the defendant operated the vehicle. However, an expert witness can testify the BAC at the time of operation cannot be calculated with certainty: there is, in fact, a wide range of possible BACs, including BACs ‘under the limit’.

In the second outstanding presentation, Troy McKinney addressed cross-examination of expert witnesses. McKinney is a DUI lawyer in Houston and former dean of NCDD. McKinney gave an overview of the law regarding expert witness testimony and provided a step-by-step method for preparing and presenting an effective cross-examination of an expert. His presentation was a good reminder that cross exams begin with thorough investigation, planning and preparation. His presentation was also a good segway to day two of the seminar.

Day Two: Advanced Cross-Examination
There are typically four or five speakers per day, but on the second day this year, there was one speaker: Larry Pozner. Pozner is the co-author of what many consider the Bible of cross-examination: Cross Examination Science And Techniques, now in its third edition. I purchased that book early in my career, have employed the techniques for two decades, and have seen Larry Pozner speak about cross examination before. Nevertheless, I was compelled to listen to everything he said.

Pozner is a proponent of cross-examinations which are thoroughly prepared and have an overarching goal. He recommends organizing the cross in chapters with one theme or topic per chapter. According to Pozner (and I agree), the examination should be a constructive cross which builds our theory of the case, and it should follow three main rules: (1) use only leading questions, (2) introduce only one new fact per question; and (3) break cross into a series of logical progressions to a specific factual goal. Utilizing these three main rules, the cross-examiner leads the jury to the desired conclusion.  The desired conclusion for lawyers who litigate DUI/OVI cases is an acquittal.

Litigating a DUI/OVI case has some similarities with solving a mystery: each is an art which requires dedicated practice, and both are intellectually stimulating. DUI defense has the added reward of helping a client through a difficult experience.