In almost every OUI case, the police officer claims that the defendant had
bloodshot & watery eyes. This line of cross examination is designed to show that
bloodshot and watery eyes are no indication of impairment, and may be explained
by any number of factors.
I'd like to ask you about the condition of the defendants eyes.
Your report indicates that the defendant had bloodshot and watery eyes?
Did you arrest him at that time?
You felt that there was insufficient evidence at this point to arrest
him?
You stopped the defendant at 11:30pm?
You had never seen Mr. ______ before?
You had never seen the normal color of his eyes?
People often get red and watery eyes after having been awake for 15 or 16
hours, don't they?
People are often suffering from fatigue after having been awake for 15 or
16 hours, don't they?
People who are deprived of sleep have a slower reaction time, don't they?
People who are deprived of sleep don't do as well on attention based
tasks, do they?
Your roadside exercises are attention based tasks, aren't they?
Based on your training and experience, you would agree that signs and
symptoms of fatigue often mimic the signs and symptoms of intoxication,
don't they?
On many, many occasions you have had to work all night and then come to
court and testify?
Sometimes your eyes might have been red and watery in court?
But you weren't impaired by alcohol in court, were you?
And based on the condition of the defendants eyes, you didn't conclude
that he was impaired by alcohol, did you?
