DUI Trial Tactics: Evidence Rule 701 & 702

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On December 1, 2000 amendments to Rule 701 of the Federal Rules of Evidence were passed which may have significant impact on drunk driving representation in Ohio.  The amendment zeros in on the difference between lay opinion testimony (governed by Ev.R. 701) and expert opinion testimony (governed by Ev.R. 702).  Many who find themselves in the DUI motion practice have seen the lines between expert and lay person blurred.  Most often the trial court will allow in "lay expert" opinion of the arresting officer.  The amendment goes directly to that issue.  The new language reads:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, techincal or other specialized knowledge within the scope of Rule 702.

In State v. Schmitt, the Ohio Supreme Court held that officers that conducted field sobriety tests could testify as lay witnesses (presumably under 701) to their observations during the tests, even if they could not testify to the results of those tests. State v. Schmitt, 801 N.E.2d 446 (2004).  This opinion makes no incorporation of the "new" rules of interpreting 701.  This should be construed in conjunction with State v. James, 428 N.E.2d 876 (3rd Dist. Auglaize County 1980), which held that an arresting officer was not competent to offer an opinion as to how many beers would get a defendant to a certain alcohol level.

The practicing attorney should also be aware of the requirements when challenging an expert's qualifications.  According to OHIO DRIVING UNDER THE INFLUENCE LAW, J. Painter, 2008 ed., "the party should be allowed 'to conduct voir dire solely on that witness's training and experience...' The trial court's failure to allow a voir dire is harmless error if the objecting party has the opportunity to cross-examine the witness on his training and experience, the objecting party did not move to strike the expert's testimony, and the record demonstrates that the witness had sufficient training and experience to qualify as an expert witness." [citations omitted].

Any insight on the matter of inclusion of the federal amendments will be appreciated, appropriated and litigated.  This may be a ripe area for adjudication in the DUI field

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