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Sample NJ DWI Cross Examination

EXCERPTS OF CROSS EXAMINATION OF ARRESTING POLICE OFFICER
BY GREGGORY M. MAROOTIAN, ESQ. FROM AN ACTUAL NEW JERSEY DWI TRIAL.

The following excerpts from a cross examination are from a real DWI Trial in an Essex County, New Jersey Municipal Court, defended by Mr. Marootian. These are simply small clips from the Trial that lasted a full day (approximately 8 hours – with three defense expert witnesses, and three State witnesses). The Court found the Defendant Not Guilty of DWI.

It should also be noted that just as there are no “cookie cutter” defenses to a DWI charge, there are no standard or routine formats for cross examining any witness, including a police officer. Effective cross examination is a skilled art – it requires (1) a mastery of the factual allegations, (2) experience, and (3) being able to glean a “feel” for the witness, the court and all of the participants.

PORTIONS OF CROSS EXAMINATION OF ARRESTING OFFICER

  1. When you activated your overhead lights, Mr. * stopped?
  2. A.

 

  1. He didn’t disregard your lights?
  2. Correct.

 

  1. He pulled over immediately?
  2. Yes.

 

  1. He didn’t strike any vehicles?
  2. No.

 

  1. He shut his car off and exited the vehicle?
  2. Yes.

 

  1. He didn’t stumble out of his vehicle?
  2. I don’t recall.

 

  1. He didn’t fall, did he?
  2. No, he didn’t fall.

 

  1. You requested his license?
  2. Yes.

 

  1. And at that point he produced his wallet?
  2. Yes.

 

  1. Was his wallet in his back pocket?
  2. I remember him retrieving it.

 

  1. He retrieved his wallet. He didn’t drop it, did he?
  2. I don’t believe so, no.

 

  1. Okay, was is license in his wallet?
  2. Yes sir.

 

  1. And he showed you his license in his wallet, didn’t he?
  2. Yes.

 

  1. And he asked you whether or not you needed it out of his wallet?
  2. Yes.

 

  1. Right – you made a point when you testified on direct examination that Mr. * asked whether or not you really needed it out of his wallet, right?
  2. Yes.

 

  1. Is that a very uncommon question for somebody to ask? If they have their license secured in their wallet whether or not you need him to physically take it out of his wallet and give it to you?
  2. No, it’s not uncommon.

 

  1. He was able to display the wallet to you, wasn’t he?
  2. Yes.

 

  1. Now you said he was fumbling. Now, officer it is common in your experience when someone is pulled over by the police, to be nervous? It’s not uncommon?
  2. No.

 

  1. In fact, it’s usually a very stressful even for somebody, and not uncommon at all for somebody to fumble and be nervous – isn’t that true?
  2. There’s a certain area of nervousness, yes.

 

  1. That has absolutely nothing to do with the consumption of alcohol?
  2. Correct.

 

  1. And in fact, you testified that in your opinion, Mr. * was nervous, wasn’t he?
  2. Yes.

 

  1. Now, at some point, you requested Mr. * registration and his insurance, true?
  2. Yes, I did.

 

  1. And he had to retrieve that documentation from the car, true?
  2. A. Yes.

 

  1. And specifically, he had to retrieve the documentation from the passenger side glove box of his car?
  2. Yes.

 

  1. And he walked around the driver’s side of his car to the passenger side of the car, didn’t he?
  2. I believe so, yes.

 

  1. He didn’t fall, did he?
  2. No, he didn’t.

 

  1. Now, he was able to open the glove box?
  2. Yes he was.

 

  1. You testified that Mr. * was holding on to the car with one had for stability as he was retrieving the documents, right?
  2. That’s correct.

 

  1. And the other hand was reaching into the car?
  2. Yes.

 

  1. Now can you describe the car officer?
  2. It’s a Jaguar, a sport type vehicle, I believe two front seats.

 

  1. Are the seats low to the ground in comparison to other vehicles?
  2. I would say yes.

 

  1. Now have you ever attempted to get into a Jaguar?
  2. No I haven’t.

 

  1. Do you own a Jaguar?
  2. No I don’t.

 

  1. So you don’t know whether or not someone typically has to anchor himself onto the car to get – to reach into the car, do you – because of the structure of the car?
  2. Correct.

 

  1. When Mr. * got out of his car you testified that you smelled the odor of alcoholic beverage on his breath.
  2. Yes.

 

  1. And you indicated in the narrative report that it was a strong odor of alcoholic beverage?
  2. Yes, I did.

 

  1. Now, is the fact that one has a strong odor of alcoholic beverage on one’s breath a strong indication that they’re under the influence of alcohol in your opinion?
  2. It’s a stepping stone.

 

  1. It’s a stepping stone – what if the smell of alcoholic beverage wasn’t strong? What if it was light?
  2. It’s still considered a stepping stone.

 

  1. It’s still considered a stepping stone – is there a difference between whether somebody has a strong smell of alcoholic beverage, or not so strong odor of alcoholic beverage on his breath?
  2. Yes.

 

  1. So, somebody that has a strong odor of alcoholic beverage on their breath is more likely to be intoxicated?
  2. Not necessarily.

 

  1. Based on the smell of alcoholic beverage on someone’s breath, can you determine how much they had to drink?
  2. No sir.

 

  1. So, the fact that somebody had a strong odor of alcoholic beverage on one’s breath may be an indication that they had a sip of an alcoholic beverage, true?
  2. It’s possible.

 

  1. It’s possible. So you can’t tell whether or not someone had one drink, a tenth of a drink, a quarter of a drink or 20 drinks based on the smell of alcoholic beverage on their breath, can you?
  2. That’s correct

 

  1. You had Mr. * perform the one leg stand test?
  2. Yes.

 

  1. Do you recall what kind of shoes he was wearing?
  2. I believe in the report it does say cowboy boots.

 

  1. Now, did you allow him an opportunity to take his cowboy boots off?
  2. No, I didn’t.

 

  1. Were you ever instructed at the academy that when asking a suspect to perform a one leg stand test, if they have boots on such as the boots Mr. * had on that he should be allowed an opportunity to take those boots off?
  2. I recall something similar to that. Whether it was specifically towards boots I always – with high heels that’s when I ask them if they’d like to take them off they could.

 

  1. The alphabet test was the first test you requested of Mr. *, wasn’t it?
  2. Yes.

 

  1. And at that point, would you say Mr. * was still nervous?
  2. He could have still been nervous, yes.

 

  1. He could have been?
  2. Could have been yes.

 

  1. Well, didn’t you testify on direct examination that Mr. * was nervous – his demeanor appeared to be very nervous?
  2. Yes, but I don’t know where nervous stopped.

 

  1. You don’t know where nervous stopped? Well, where did it start?
  2. I don’t know.

 

  1. You don’t know where it started, and you don’t know where it stopped but you testified on direct examination that he was nervous.
  2. Yes.

 

  1. Well, is it possible that during the recitation of the alphabet that Mr. * was nervous?
  2. Yes, it is possible.