How a defense lawyer should prepare for a drunk driving trial.

1. How to Prepare for an OUI Trial By Russell J. Matson, Esq. http://madrunkdrivingdefense.com

2. Why is Preparation Important? Client Control Credibility (ADA, police officer, judge) Memorize the facts of the case Use of client questionare Site visit Trial analysis letter

3. Organization is Key: The Trial Notebook Sectionalize Running Sheet Police Report Breath Test Documents Medical Records Discovery Motions Evidentiary Motions Motions in Limine Opening Statement Cross-Examination Closing Argument Sentencing Post Trial Motions

4. Running Sheet First page of the trial file Client contact information Court information Next court date Explanation of what was done on last date Judge(s) present at next court date

5. Breath Test Documents Police report will be the main source of information on the arrest and will be reviewed by arresting officer before trial Look for breath test information in the police report: BAC level and paperwork from the machine Refusal Chemical Test Refusal Hearing – 15 days from date of refusal at the Registry of Motor Vehicles Limited to 3 issues: 1) reasonable grounds to arrest; 2) there was no arrest; 3) there was no breath test refusal (most common)

6. Medical Records If applicable, medical records can be very helpful to a case Get HIPPA release signed ASAP so you can evaluate the records Records can help challenge reliability of field sobriety tests

7. Motions Discovery Motions Evidentiary Motions Motions to Suppress Statements Motions to Suppress Stop Motions in Limine

8. Cross-Examination Cross-Examination Start with standard cross-examination issues/methods Before trial, cut out the parts that do not apply Helps you go over how to question each witness

9. Opening and Closing Statements Prior to trial, make bullet point outlines of openings and closings Helps familiarize with facts/theme of the case Gives you a reference guide during trial Even if you don’t use them at trial, they will help you stay organized before and during the trial Writing out outlines can encourage you to use canned openings/closings/metaphors that you normally would not use

10. Sentencing and Prior Offenses Prior offenses: Run the clients RMV record to check for prior offenses Client information needed: SS #, DOB, License # $6.00 to run a record In pretrial conference, request copy of the prior(s) Ways to challenge prior offenses Non-compliance with pretrial conference report/discovery Biological information: “It’s not my client” Certified copies Motion To Reinstate License

11. The Site Visit When? ASAP to make clients happy Closer in time= more reliable Why? Doesn’t take a long time More productive talk with the client while conducting site visit Record and Transcribe Take photographs of the scene

12. Site Visit Photographs Take Photos while on the visit Photos can challenge FST conditions Make you appear to know the case inside and out Use the photos at trial Give 4’ X 6’ photo to ADA as part of reciprocal discovery Submit 8’ X 10’ into evidence at trial Use Shutterfly.com Small photos very cheap - $0.25 Larger are $4.00

13. Field Sobriety Tests Testing Manual Can request at: Massachusetts State Police Training, 31 Macarthur Ave, Devens MA, 01434-4443 Motion required for state police Motion not required for municipal police Conditions of roadway Reliability No valid comparison point Driver disqualifying conditions

14. Booking Video Find out ASAP if there is a booking video Can request it from ADA at arraignment or pretrial conference Watch and discuss it with the client Formulate your own opinion regarding the client’s behavior Have someone else in the office watch and evaluate the client’s behavior Allow opportunity for the client to watch the video Transcribe it Helps you analyze the strength of the case Familiarizes you with everything that was said/done during booking Seek to admit certain portions of the video

15. How Much Time Does it Take to Prepare? Once you have the process down, the preparation doesn’t take a ton of time (if you do it right) Bar Advocates…

16. Trial Analysis Letter Why write a trial analysis letter? Client confidence Facts of the case General trial procedure Send to client 2 weeks before trial Reaffirms theory of the case Organizes the facts Helps commit facts to memory Analysis of sentencing issues/ license loss issues

17. Witness Preparation Meet with potential witnesses prior to trial Mock direct examination Mock cross-examination Use other attorneys in the office to play the mean prosecutor (this can lead to fun office battles and the opportunity to beat on people!) Helps you determine if they will be a good witness at trial Helps ease the anxiety of the witness before taking the stand Answer their questions Go over the trial procedure and the trial strategy Shows the client you are working on/preparing for their case

18. Trial versus Plea You should have an idea about which way you may go by knowing your clients record Running the RMV record before the pretrial date is good policy Avoids rush of having to do so at the courthouse, or being unsure when discussing the case with the ADA Discuss both options with the client well before the trial date Deciding factor tends to be the license loss consequences Consider differences between 1st, 2nd, 3rd, etc. offenses and the corresponding license loss consequences Avoid guilty verdicts on ancillary charges Ex: Negligent Operation, Leaving the Scene Convictions on these carry mandatory license losses

19. The Trial Organization and preparation are key Be pleasant – to witnesses, ADA, judge Don’t be afraid to work outside your prepared opening, closing, cross-examination Opening/closing strategies won’t be used unless you write them out/practice them Good to have opening and closing notes at the trial even if you don’t use them

20. Creating and Maintaining Positive Rapport Continuous client contact If responsive to client calls, there ends up being less contact in the long run and the conversations you have are more productive Modern-Day contact Phone Email Text Taking calls, discussing the case and other life hardships, makes happy clients!