• '-Oft! - Voice For The Defense Online

com mit the crime?
Y a reasonable doubt?
Normal Mental and Physical Abilities
Comment: “Normal v. Average and Normal Range”—the
definition of intoxication in Texas for DWI purposes is
where, because of alcohol, a drug, or a controlled substance,
a person drives while she has lost the normal use of her
men tal or physical abilities. The normal abilities you are
go ing to examine will be those of Mr. Defendant.
1. Mr. Juror No. _____, supposing we take this row of jurors
and we make believe you all have a normal shoe size 8. We
will do the same with the next row except we will give them
all a size 10.
Y what would the average shoe size for the jury?
Y would it be normal for juror ___ to wear a size 9?
Y would it be fair, comfortable, or even safe to require all
of you to wear a size 9 shoe?
Y can we agree that normal does not mean average?
2. When it comes to what is normal for a person in regard to
their mental or physical abilities, are they always the same
for that person?
Y Does an older person generally have the same strength
and coordination he had in his youth? Explain.
Y Does a person have the same mental and physical snap
at all times of just one day?
Y Waking up vs. midday vs. the end of the day?
Y Why do athletes warm up?
Comment: Normal is not some static point on a 1-ft ruler
like the 6-inch mark. Rather, normal is a range, for example,
from the 4- to 8-inch mark.
3. With the presumption of innocence in mind, are you allowed
to presume that Mr. Defendant’s normal abilities are
those of the average person? Explain.
Comment: No. The presumption of innocence requires
that you presume he had and displayed his normal mental
and physical abilities.
4. Some people say the exercise of good judgment is proof of
no loss of normal mental abilities while others say not it is
not. What do you think?
Breath Test Voir Dire and Refusal
1. What do you know about the accuracy and reliability of
the breath test machine?
Comment: In Texas, a driver is generally allowed to decline
to take blood, breath, and urine tests. Three exceptions exist
for compelling a blood test: where a judicial warrant is ob‐
tained or where a person is seriously injured or dies as a
result of the driver’s intoxication. No law requires you to assume/presume
guilt or says that a license will be suspended
because a driver refused to submit to a breath or blood
test.
2. Would your opinion on the breath test machine be changed if
you learned that it was never warranted by its manufacturer
to be fit for breath testing on humans, but rather was only
warranted for parts and labor? Explain.
3. Would you allow your children to have lasik eye surgery
on a machine that was warranted just for parts and labor?
Explain.
4. Would you allow your children to have lasik surgery on an
unwarranted machine where, in addition to the possibility
your child’s vision might be harmed, if a problem arose,
you could be punished with 6 months in jail, a $2,000 fine,
and a year loss of your license? Explain.
Comment: The punishment for DWI can be as much
as 6 months in jail, a $2,000 fine, and a year loss of your
license.
5. As an innocent person, what would be your biggest fear of
taking a breath test you knew nothing about?
6. As an innocent person, how could you best protect your
in no cence when asked to take a breath test?
7. Assume with me the following hypothetical facts are true.
The IRS, to save space, has instituted a new tax procedure
wherein they seize all your records, compute your tax, destroy
your records, and then send you your tax bill. Explain
your thoughts on the fairness of this procedure.
8. What are your thoughts on a police practice or policy
wherein written statements are made by citizen defendants
explaining their actions, after which an officer reads the
state ment, destroys it, and then writes what he thought it
said in his report?
9. What possible reasonable justification could the police have
for not preserving the written statement of a citizen/de fendant?
10. Assume with me that it cost about one dollar to preserve a
breath test specimen for retesting. What possible reasonable
justification could the police have for not offering a citizen/
de fendant the choice of preserving his breath sample if the
citizen pays the dollar?
11. Can you tell me some innocent reasons why an innocent
per son might not take a breath test?
12. Having talked about machine mistakes, lack of breath sample
preservation, lack of warranty, maximum punishments,
would it be an exercise of good or bad judgment to not
take a breath test? Explain.