San Diego DUI Legal Guide

Slurred Speech

There are few DUI police reports that do not indicate that the suspect's speech was slurred. Often the officer will have written a variation on a theme by describing the speech as "thick and slurred," "slurred and stuttering," or perhaps even "unintelligible."

This can prove a critical aspect of the DUI case: If the jury believes that the client was so intoxicated that his speech mannerisms were affected significantly, they will also conclude that he was so intoxicated that he could not safely operate a motor vehicle. But, again, there are a number of techniques that may be used in cross-examining the arresting officer on this issue.

First is the possibility that what the officer considered to be slurred, thick, or stuttering speech may, in fact, be the defendant's normal manner of speaking. As with other observations, a San Diego DUI lawyer defending a DUI client should establish in his questioning that the officer was unfamiliar with how he sounded on other occasions. Of course, the jury will then be expecting to hear exactly how the defendant does talk, and counsel should expect to produce him for direct testimony or possibly lose credibility with the jury.

It should be noted that, as with police observations of flushed face, bloodshot eyes, etc., counsel should ask defense witnesses their opinion about the defendant's appearance and behavior. Although in the majority of cases the defendant will be alone at the time of his DUI arrest, it will be a rare situation in which he cannot produce at least one friend or associate with whom he spent some time during the hour preceding the arrest. Even a spouse or friend who posts bail for him may help, if he or she was able to observe him within an hour or so after the arrest.

In preparing for cross-examination of the officer, counsel should examine carefully the DUI arrest report for errors or inconsistencies. But it should also be studied for the possible effect its form may have on the officer's recorded observations. Many DUI police reports will not permit the officer to report simply in the narrative what he observed. Rather, specific questions will be posed by the form, and answers will be given with boxes next to them to be checked. The suggestiveness and limitation of this common police approach should be brought out to the jury.

For example, one large police department has a DUI form that has a section designated "Speech," followed by boxes next to the terms "no impairment," "slurred," and "incoherent." There is no room in the form for any other possibilities; the officer must choose one. Consider the effect of such a form questionnaire. Obviously, the officer is not going to check off the box entitled "no impairment"; in effect, this would be to invite criticism of his decision to arrest and would certainly be used as evidence of sobriety in court. "Incoherent" will probably not be checked, for this would be overdoing it; how would an officer explain being able to understand the defendant's answers to his questions? And this leaves only one box remaining to check: "slurred."

Perhaps the most effective line of interrogation in DUI trials involves the situation in which the officer has testified that the defendant's speech was "incoherent," "confused," or so "slurred" as to be incomprehensible. Certainly, counsel should attempt to lead the officer into characterizing the speech as being so slurred as to be nearly impossible to understand. After this preparation, counsel should lay another foundation, preferably removed in time in order not to disclose the tactic, by asking the officer a long series of questions concerning the questions asked of the defendant during the DUI investigation and at the police station. There will be no shortage of such questions; the client will probably have been asked dozens of questions concerning his drinking, his physical condition, who he is, where he lives and works, etc. After asking a few such questions committing the officer, the inquiries should be followed by a question to the effect of "And you understood that his telephone number was 482-5713?" Obviously, the officer will have to confirm this: He recorded the information accurately in the report. After a long, even exaggerated, series of such questions, counsel should ask the officer just what was confused or difficult to understand about his client's speech.