DWI video has D talking about having insurance, but being confused and unable to locate the right paperwork at the scene. Third party witness(who was hit by D's car)continues to ask for insurance at the scene and D continues to say she has it, but can never locate the proper documentation.

Her inability to provide insurance, despite her claims that she has it, along with the accident report verifying that she has insurance, is evidence of loss of normal mental faculties - BUT, is it improper and am I setting myself up for a mistrial?

Look at the very language of 404(b). Are you offering her failure to lay hands on insurance as proof that she's a bad person, and that bad people drive while intoxicated? No. You're offering it as evidence of state of mind, something explicitly recognized by 404(b)- "intent, preparation, plan, knowledge..."

For that matter, I'm not sure you've even described a predicate "bad act" sufficient to invoke 404(b). She couldn't locate her insurance. So what? That's not illegal. It's probative evidence of the loss of normal use of mental faculties, but it's not illegal. Only if she didn't actually have insurance would it be a 404(b) act.

So, did she? If she DID have insurance, but couldn't lay hands on it, that's a really helpful fact. Have your officer check the database and see if she had active insurance at the time. Then at trial offer testimony that makes it clear that she did have it, but wasn't thinking clearly enough to find it. That should short circuit any possible appellate issue.

If she did NOT have insurance, you can avoid that final question. Your officer can still talk about how she insisted that she had it, but was unable to locate it. The bad act is not having coverage, not being intoxicated.

This message has been edited. Last edited by: Brody V. Burks,

Officer will testify that she DID have insurance. He notes that she does within his offense report.

We are offering the evidence as an illustration of loss of mental faculties.

The lay witness will only testify that she couldn't provide the proper documentation and that he gave up trying to get her to locate it.

Thanks for the great response.