2Defensive Tactics to OWI Trials/Cross Examination of Arresting Officer Patrick HarringtonTippecanoe County Prosecutor
33 Standard Field Sobriety Tests The Horizontal Gaze Nystagmus (HGN)The Walk and TurnThe One Leg Stand
4Standardization is Critical The tests are administered in the prescribed, standardized mannerThe standardized clues are used to assess the suspect’s performanceThe standardized criteria are employed to interpret the performance
5ATTACK 1According to NHTSA, “If any one of the standardized field sobriety test elements is changed, the validity is compromised.” (NHTSA, U.S. Department of Transportation, HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), p. Viii-3).
6PESKY WARNINGSNHTSA also warns that any variations from ideal conditions, and deviations from the methodology allow the defense to attack the weight that should be given to the results
7Attack on the HGN Can you explain HGN to the jury? Can you survive defense cross-examination of HGN?Are you aware of the other types of Nystagmus that can result in a clue?
8Types of NystagmusThere are several different types of nystagmus and several causes for nystagmus.
9Six Muscle Control/Movement of the Eye Superior obliqueRectus superiorMedial rectusLateral rectusRectus inferiorInferior oblique
10Vestibular Nystagmus Rotational Post rotational When the head/body is spinning or rotatingPost rotationalStopped spinning or rotatingCaloric and positional nystagmusInner ear fluid
11Positional Alcohol Nystagmus Pan IPan IIWhat we are testing for
12Neural Nystagmus Physiological Optokinetic Gaze Pathological nystagmus Occurs naturally in all individuals (though not readily seen with the naked eye) to keep the sensory cells of the eye from becoming fatigued.OptokineticOccurs when the eyes follow a stimulus/object out of sightGazeOccurs when the eyes move in a direction, generally side to side, when following stimulusPathological nystagmusCaused by diseases or some inner ear conditions
13Can such things as the flu, strep throat, vertigo, measles, syphilis, arteriosclerosis, muscular-dystrophy, create nystagmus?Yes
15Natural End-Point Nystagmus Horizontal jerks will occur when the eyes are at the lateral extreme; you must know where 45 degrees is50 to 60% of sober individuals who deviate their eyes more than 40 degrees to a side will exhibit nystagmus which is indistinguishable from alcohol induced nystagmus
16Congenital NystagmusA person who has defect in their motor system
17FatigueFatigue exacerbates one component of the Horizontal Gaze Nystagmus test, end-position nystagmus
18Alcohol Alcohol causes two types of nystagmus Alcohol gaze nystagmus, which includes Horizontal Gaze NystagmusPositional alcohol nystagmus (PANI, PANII)
24Door No. 1: Angle onset is not a reliable indicator BE sure you know where 45 degrees endsProtractor
25National Highway Traffic Safety Administration (NHTSA) research found that Horizontal Gaze Nystagmus (HGN) may be evident when a person’s BAC reaches approximately .06%Other studiesSmooth pursuit begins to break down at a 0.004% BACSome changes in HGN occur at a 0.003% BAC
26DANGER AHEADSo can you survive cross-examination where a defense attorney attacks HGN at .06% or more?
27Fatigue can induce nystagmus at maximum deviation of 50% of the people Nystagmus persists after BAC levels have fallen to zeroBooker JL
28HGN You must administer the test correctly You must know the test procedureYou must know the cluesKnow the order in which to give the test
29Scoring the Test Three clues of impairment: Lack of smooth pursuitDistinct nystagmus at maximum deviationOnset of nystagmus prior to 45 degreesThis test equals a total of 6 clues; 4 clues are necessary to fail the test
31One Leg StandRestrictions on test: Original research reveals the following:The subject being over 65 years of agePersons with back, leg, or middle ear problems or over 50 lbs. overweightIndividuals wearing heels more than 2 inches high
32Test Procedure:Tell suspect to stand with feet together and arms down at sidesTell suspect to maintain that position while you give the instructions; emphasize that they should not try to perform the test until you say “begin”Ask suspects if they understandTell suspects that when you say “begin” they must raise their leg in a stiff-leg manner, and hold the foot approximately six inches off the ground with the toe pointed forward so that the foot is parallel with the ground
335. Demonstrate the proper one-legged stance 6. Tell suspect that they must keep the arms at the sides and must keep looking directly at the elevated foot, while counting in the following fashion: “one thousand and one, one thousand and two, one thousand and three,” and so on until told to stop7. Ask the suspect if he or she understands8. Tell the suspect “begin”.
34The officer is also given the following instructions: It is important that this test last for 30 seconds. You must keep track of the time. IF the suspect counts slowly, you will tell him or her to stop when thirty actual seconds have gone by, even if, for example, the suspect has only counted to “one thousand and twenty.”
35Scoring the Test The One Leg Stand has four clues of impairment: Sways while balancing (side to side or back to front).Uses arms to balance (i.e. more than 6 inches).HoppingPuts foot down
36Two or more clues classifies the subject as a 65% chance of being over a 0.10% BAC (NHTSA, U.S. Department of Transportation, HS 18 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), p. VIII-14).
37Lack of Establishment of Normal Performance Standard Studies found the false positive rate as high as 54% for alcohol-free drivers at sobriety checkpoints (Compton, R., Pilot Test).
42Make Sure Your Police Report is Accurate Do not duplicate your police reportsDefense attorneys will get copies of other arrests you’ve made and compare the language and mannerisms in which you write your reportSimilarities may be open to the attack in front of the jury to show that you are mass producing reports
44COUNTER-ATTACKKnow your training and the amount of time spent during training for each area of field sobriety test and OWI investigationPrepare and bring with you a list of your training and the amount of time spent. When questioned, inform the defense attorney “I have an exhibit with me that shows my experience and training if you would like to look at it”.
45Document the Physical Abilities of the Defendant Note large thigh syndrome as a defense to field sobriety test results. Large thigh syndrome pertains to individuals who have large thighs either due to being overweight, weight lifting, or heredity.Large thighs makes it difficult for those persons to perform the walk and turn test because their thighs prevent them from placing one foot directly in front of the otherWhen you appear in Court look at the jury and make an evaluation of them; a juror who has large thighs may be very sympathetic to the defendant
46WARNINGWhen field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable. In an extensive study, the NHTSA evaluated field sobriety tests in terms of their utility in determining whether a subject’s blood-alcohol tests are an effective means of detecting legal intoxication “only when:The tests are administered in the prescribed, standardized mannerThe standardized clues are used to assess the suspect’s performanceThe standardized criteria are employed to interpret that performance”
47NHTSA WARNSNational Highway Traffic Safety Adm., U.S. Dept. of Transp., HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), at VIII-3. According to the NHSTA, “if any one of the standardized field sobriety test elements is changed, the validity is comprised.”
48IT STARTS HEREExperts in the area of drunk driving apprehension, prosecution, and defense all appear to agree that the reliability of field sobriety test results does indeed turn upon the degree to which police comply with standardized testing procedures
49Tips for Cross-Examining Police Officers Know your report. You can expect that the defense attorney will know your report better than you.Don’t look at the report 10 minutes prior to testifying.Remember testifying is your time to show the jury that you are a professional, have special training, that you have been fair and accurate.
50TIMING IS EVERYTHINGDefense attorneys will not cross-examine you in chronological order. Be prepared for this. This is done to keep you off balance.Be polite and answer the defense attorney in the same mannerisms as when answering the prosecuting attorneyDo not become combativeDo not lose your temper
51LET’S BE FRIENDLYAnswer questions in the same demeanor as when the prosecutor asked them (did you look at the prosecutor or the jury when you answered questions?)Do you remember the area in which you tested the individual?SlopedWeather conditionsTraffic near byBest location is your headquarters or the county jail
52YES IS A GOOD ANSWERDo not over-exaggerate your knowledge or experience in regards to field sobriety testingDefense attorney will attack that you do not understand the reason(s) behind the testWill attack possible other reasons for poor performanceAllergiesIllnessesPhysical conditionsBlood shot eyesAlcohol consumptionSmoky barFatigueMedical reasons
53Odor of AlcoholA more experienced officer will state that he detected an odor of alcoholic beverage coming from the person and will avoid that he/she detected the odor of alcoholAlcohol itself is virtually odorless. The aroma associated with alcohol is the flavoring that gives the beverage its taste (near beer vs. real beer).The odor of alcohol does not provide any information as to the amount of alcohol or to the level of intoxication
54Cross Examination of an Officer Q: You have indicated that the defendant had an odor of alcohol about her?A: Yes, a strong odor of alcohol.Q: Could you tell us by the odor of alcohol what time the defendant started to have something to drink?A: No.Q: Could you tell us what time he/she finished having something to drink?
55Q: Based upon the odor of alcohol, could you per chance tell the jury and myself how much the defendant had to drink?A: No.Q: Well, since you stated that there was a strong odor of alcohol, you can at least tell us what type of drink the defendant had been drinking, can’t you?A: Probably not.Q: So based upon the odor of alcohol about him/her you cannot even tell if she had some wine, a beer, or a mixed drink?A: True. But I still detected the odor of alcohol.
56Q: Actually officer, ethyl alcohol has little odor? A: I believe that is right.Q: It is the flavoring that gives off the odor, not the alcohol?A: I think that is right.Q: Indeed, it is a curious fact that the beverages that give off the most odor tend to have the least alcohol in them?A: Yes.
57Slurred Speech Was your onboard camera working? Audio? Defense attorneys will question as to prior contact with the defendant and any knowledge of his speaking pattern.Was the defendant able to answer your questions AND follow instructions during the FST investigation?
58Drugs/Flushed FaceThis factor is an open door for defense attorneys in regards to following: sunburn, normal redness when people become nervous, angry, or afraid and also fatigue.
59Walk the LineThis test is the best of the 3 for the jury: the reason is jurors presume the test is valid as they understand it and have seen it many times on TV
60Defense TacticsCross-contamination dynamic method of cross-examination (i.e. focus on what the defendant did right and not wrong)Merely means the defense attorney will focus on all the positive or correct things the defendant was able to achieve during this test.
61Example:Q: The first thing you had the defendant do is put her left foot on the line?A: Yes.Q: And then you had her put her right foot on the line?Q: You told her to put her arms at her side?A: Yes, and to maintain this position until I tell her to begin walking.Q: She has to stay in this position?Q: How long did you keep her standing in this position?A: I kept her there for only about 5 to 10 seconds.Q: And this was the time period during which you gave her the instructions for the rest of the exercise?
62Q: Did she keep her feet in the correct position while you gave her the instructions? A: Yes.Q: She maintained her hands at her side? A: She did.Q: Other instructions for the exercise required her to take nine heel-to-toe steps around by using a series of small steps to get around?Q: Does she get to take notes like the jurors are doing when she is being given the instructions?A: No.Q: She was cooperative with you?A: She was cooperative with me during my entire investigation.
63Q: There are still more instructions for this exercise aren’t there? A: Yes, there are more instructions.Q: You also told her to count out loud for each step she took?A: Yes, that’s correct.Q: And she didn’t forget to do that during the test, did she?A: No, she did not.Q: The only thing she did not do correctly, in your opinion, is that on four occasions' she stepped off the line a couple of inches, in three instances she didn’t touch her heel to toe, and once she raised her hands up?A: Yes
64These questions and answers show that the defense attorney is trying to minimize or to reduce the harmful results of the test. This minimization focus is on what the defendant was able to perform correctly as opposed to your testimony of the clues and the final opinion of a failure to perform the test.
65If you don’t like the test results change the grading system
66Final GradeYou say a failure is 4 clues; the defense attorney says 4 clues is a grade of an A.
68How to Defend Field Sobriety Tests Investigate the scenePromote NHTSA information research that went into developing the field sobriety testsUse the word clues instead of mistakes; this sounds more scientific. It gives a clue as to what the evidence is for this crime. Jurors love clues.Promote the officer’s trainingMake sure the jury knows the officer did not just receive training at the law enforcement academy but also in the fieldThe number of personal investigations of intoxicated individuals including public intoxication and OWI investigation
69Pre-Trial PrepReview instructions on field sobriety tests with the officerMake sure he/she follows the proper training and procedure for using FSTIs there a second officer testifying? Did the second officer observe this?If the second officer didn’t-- make sure the jury is informed and understands the officer is present only for safety and not necessary to supervise or observe the actual testingControl trafficAssist with search of vehicleArrange for the vehicle to be towed
70Depersonalize the Case Do not personalize the defendant by calling the defendant by his or her actual name. Use the term defendant as this helps the jury think of this case as a file more than as a real person standing trial in front of them.
71Other Tricks for Defense Attorneys One legged standOnce again if I don’t like the testimony of the officer I’ll change the way it’s scored
72What do you have when you take one leg away from a person? A handicapped person; the defense attorney should have attempted to persuade jurors that the one legged stand test is handicapping the defendant.
73No one has to walk the line or do a one legged stand to get a drivers license FST are meant to require a person to perform physical duties while following instructions
74Valuable Field Sobriety Tests Enable an officer to develop probable cause for the stop of the arrestAssist in establishing possible physical and mental impairmentEstablish the general causal relationship between alcohol and driving behavior (i.e. probable cause for the stop)Emphasize FST’s are a tool that the officers use to form a total opinion of probable cause in order to request further testing and the implied consent