I have a felony total refusal case--just wanted to see if anyone had creative (or any) ideas for effective methods, hypo's, questions, etc. for voir dire and arguments for closings...

thanks!

You'll want to voir dire the jury to find out who thinks officers should have the authority to ask for the tests. When you explain the implied consent law, look for jurors who think it is a good or bad law.

Ask how many of the jurors have been in the presence of an intoxicated person. Ask how many of them formed that opinion without watching field sobriety tests or doing alcohol concentration tests beforehand. Look for the jurors who are unwilling to admit that a person can be identified as intoxicated simply by standing near and conversing with the person.

Ask the panel to provide reasons why a person might refuse the test. Use this as an opportunity to discuss what they would do in those incidents where they offer reasons other than being intoxicated. Don't try to convince them that the only reasonable conclusion is guilt at this point: let them come to that conclusion themselves. Instead let one of the jurors suggest it. Then when another juror follows up with something like, "My lawyer told me never to take the test," follow up with "Why do you think that is?" Most of the reasons people refuse the test are either borne out of an attempt to avoid providing evidence, or will not apply to your defendant.

In closing argument in those cases, I would typically argue that the defendant has chosen the evidence upon which he wants the case decided. He knew the officer would testify to the officer's opinion. He knew the officer would tell us that he refused to do the tests. He knew that he was on tape and doing the tests could therefore be shown to a judge or jury later. He knew his BTR could be used against him, or that the result of the test would be made known to the judge or jury. He decided that the only thing he wanted the jury to have was the officer's opinion. So be it.

Plead it for a misdemeanor and support an amendment to the law, requiring breath/blood samples upon felony DWI arrest. Coming to the 81st Leg.

Thoughts that may help:

I try to add the circumstantial evidence discussion in with the implied consent laws--the State has tried to make it possible for us to get direct evidence and the defendant refused (and of course I do a hypo about circumstantial evidence sometimes being better than direct, anyway). Most of my juries seem surprised that they are supposed to blow--they have never even heard of "implied consent", so when I have explained it to them, they start nodding their heads, as though it makes sense but they have never thought of it.

For the SFST refusal, I do a hypo where they are the officer and are investigating a driver hitting garbage cans or mailboxes at night (this makes every one of them picture their own neighborhood, of course). Then list some obvious observational clues of intoxication (which they have already listed to me in talking about the meaning of intoxication). Then ask them what they would do....arrest the person or hand them back their keys "and send them back onto the roads" because they refused to cooperate. EVERY juror has always said they would arrest. I also ask them would they put their child in the car with that person who refused the test--EVERY juror says no way.

It's important to pull them away from their fears of them being the ones taking the tests and into the fear of being on the road with people who are so drunk they can't walk heel to toe and count to nine.

My officers also usually tell me that for every 10 people that they give the tests to, only about 3 get arrested. That's just an estimate, and different officers will estimate different numbers, but they all say that at least half the people who take the tests pass.--Not voir dire, but good to calm fears that the tests are foregone conclusions.