Law Tips: DUI Defense – Jury Selection In Blood Test Cases

The blood test machine is not a “guilty box.” The State must show the jury the “Carfax” – the evidence showing that the test is right. The jury must put on their “skeptic glasses” and review all the evidence and determine if it leaves no doubt as to its accuracy. The evidence of the test’s accuracy must be so clear that they would feel free to act upon it in a matter of the highest concern and importance to them.

In these few words Bart Betteau zeros in on the issues for a jury in a blood test case. I appreciate Bart bringing his DUI Defense expertise to Law Tips readers. Come along as he pointedly shares insights, questions and comments that clarify the jurors’ role in protecting our constitutional tenets during a DUI trial:  

Voir dire is the single most important part of an OWI jury trial – especially where a blood test is involved. As in any case, the main thrust is to ensure that jurors know their proper role. Jurors must thoroughly understand the constitutional precepts of “presumption of innocence”, “proof beyond a reasonable doubt” and ”burden of proof’.”

Your task:
In trying a blood test case, you have to make potential jurors aware that it is the State’s burden to show that the test is reliable and accurate – that it is right! It is not sufficient to introduce a piece of paper with the result and scream “here’s the result.”

Questions for Potential Jurors
– What will you require the Accused to do in order to show he is not guilty?
Comment: “Nothing!” The presumption of innocence requires only the government to prove things. If the government fails the verdict is “not guilty”.

– What if you believe the test is probably right – almost certainly right?
CommentNot guilty! The standard is beyond a reasonable doubt.

– If you voted right now – what would your verdict be?
Comment: Not Guilty! No evidence has been presented.

– When the blood test result is presented, do you understand your obligation is search the evidence for reasons it’s not right?
Comment:Jurors must attempt to fit the evidence to the presumption of innocence.

– What if, in the end, you are not sure the test is right – you can’t decide?
Comment: Not Guilty! We don’t convict innocent people. If you have a reasonable doubt, you cannot convict.

– Do you like the presumption of innocence, the fact that the evidence must be beyond a reasonable doubt and that the State has the burden?
Comment: You better. It is one of the constitutional rights that people have fought and died for. It is not here for Mr. _____ __, but for you, your brother, sister, mother, father and your children, to make sure innocent people are not convicted.

– What does beyond a reasonable doubt mean:?
Comment: Each juror will believe themselves to be reasonable. If they have a doubt, it is a reasonable one.

– What if, at the end of this case, you have not seen some evidence that you thought you needed to know whether the test result was accurate?
Comment: Not Guilty! A reasonable doubt may arise from the evidence or lack of evidence.

– What if I don’t do anything – don’t cross examine the lab tech – don’t say a word?
Comment: Does not matter. State has the burden of proof and must show proof that convinces the jury beyond a reasonable doubt.

– What are you here to decide – the possible verdicts?
Comment: The answer is “guilty” or “not guilty”. Jurors have NO authority to find the Accused innocent. Not guilty does not mean your client is innocent but means that there is a reasonable doubt. This is not a trivial point.

– Do I have to show the machine was wrong?
Comment: No. Such would be contrary to the presumption of innocence, the obligation for the State to prove the Accused guilty beyond a reasonable doubt and the fact that the State has the burden of proof. More importantly, it’s impossible. I was not there for the test; I don’t have a video of the test.

When you bake a cake and it does not come out right, you don’t know why. When a computer locks up (and this blood test machine has a computer) – anybody tell me why the computer locked up? No. Something happened but you don’t know what. That is why we have the presumption of innocence, the beyond a reasonable doubt standard and put the burden of proof on the State to show the test was right. Plain and simple – it’s impossible for me to show it was wrong.

– Does it matter if the State has a lab tech say: “I gave the test. I gave it right. The machine was working properly” – is that the whole ballgame?
Comment: No. The jury must consider all the evidence presented.

– Would you still weight that evidence against all the other evidence for you, yourself, to determine whether the test result is accurate?
– You understand that each and every one of you, independently, must be convinced that the machine is right.
Would it be wrong to surrender your own judgment, just to get a verdict?
Comment: The verdict must be that of each individual juror.

– Anyone know what a hung jury is?
Comment: Jurors must know that it would be wrong to vote any way other than the way they see it. They must also know that if they are “irretrievably deadlocked”, the State gets to try the case again. This again is how we protect against convicting the innocent.

– Who are you here for?
Comment: Jury is there not as a representative of the public- but to protect the Accused. The Sixth Amendment says the Accused shall enjoy a trial by jury. When the State says you committed a crime and you say you didn’t, you get to take it to a jury of your peers to argue your case.

It bears repeating:
Voir dire is the single most important part of an OWI jury trial – especially where a blood test is involved. You have to make potential jurors aware that it is the State’s burden to show that the test is reliable and accurate – that it is right!


I am grateful to Bart Betteau for providing his expertise for Law Tips. You can get the full impact of his CLE presentation during the Annual DUI Defense Update. Make your choice of locations for this popular CLE in September through December.  



About our Law Tips faculty participant:
Bart Betteau, Betteau Law Office, LLC, New Albany, Indiana, graduated Wabash College magna cum laude with a Bachelor of Arts in 1989. He earned a juris doctorate from Indiana University School of Law in 1992. Since then, he has received hundreds of hours of continuing legal education in the field of criminal defense attending seminars throughout the United States. He has also been sought to instruct other attorneys in the field of criminal law both inside and outside of the State of Indiana.


About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

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