November 20, 2007, 14:08A. Klement
Defendant stopped and subsequently arrested for DWI. During the course of the Officer's investigation, Defendant says he has had two beers, then later says three beers. After arrest and during an inventory of the Defendant's person, Officer finds a bar receipt in Defendant's pocket that says he's had nine drinks. The receipt (signed by the Defendant) is taken into evidence by the Officer. Admissible during the Officer's testimony?
November 20, 2007, 14:30KWatkins
November 20, 2007, 14:35A. Klement
Yes, but is it hearsay? Do you have to have someone from the bar to come testify? My gut says it's admissible but I don't know the "why" part.
November 20, 2007, 14:55Steve Greene
I would suggest that you have someone from the bar not only to ensure admissibility of the receipt but also to possibly testify that the guy was buying drinks for himself as opposed to several others at the bar.
November 20, 2007, 15:02Richard Alpert
Get a business records affidavit from the Bar and file notice of your intent to use it. With or without the recollection of the bar employees the receipt should be offered.
November 20, 2007, 15:08A. Klement
Too late to do a business records affidavit, trial is next week. Any other way to get it in?
November 20, 2007, 15:25Richard Alpert
Subpoena the Bar manager or book keeper to lay the predicate for business record
November 20, 2007, 15:37GG
Agree with Richard and it will work really well. I'm sure he will claim he was buying drinks for others. The one case I had long ago when I was lucky enough to have such evidence, well, it pleaded during jury selection.
November 21, 2007, 08:06Jeff Swain
About a year ago, I had a case where we had the bottle of Jack Daniels and the receipt to go with it, which gave us the time (2 hours ago) that the defendant bought the 3/4 gone bottle. That guy decided to go to prison without the necessity of a trial.
November 21, 2007, 09:35suzannewest
Yes, subpoena bar manager--not the bartender on duty. We had a DWI where our defendant brought in her own receipt that showed 2 drinks on her card at that bar a week after her arrest and she tried to testify that it just took that long to show up on her account (she was allowed to testify that that's what the "guy at the bank told her" even though I argued against it strenuously!). But we brought in the manager who said there cards are posted nightly, show up on the card in a day or two and there was no purchases by that card on the night in question. So our defendant basically proved that she was back in the same bar less than a week after being arrested (but she only had two drinks THAT time around!!) and that whatever she drank when she was arrested was cash purchases. It's great to have an unbiased witness....