By Donald J. Bartell
Excerpted from Attacking and Defending Drunk Driving Tests
- Tips for Cross-Examining Police Officers
- Five General Cross-Contamination Dynamics
- Sample Cross-Examination of a Police Officer re: Bloodshot Eyes
- Sample Cross-Examination of a Police Officer re: Odor of Alcohol
- Sample Cross-Examination of a Police Officer re: HGN Test
- Sample Cross-Examination of a Police Officer re: Romberg Test
- Sample Cross-Examination of a Police Officer re: One Leg Stand Test
- Sample Cross-Examination of a Police Officer re: Walk the Line Test
- Sample Cross-Examination of a Police Officer re: Alphabet Test
In a DUI trial, the cross-examination of the arresting officer is the first real confrontation in front of the jury.
The police officer is usually the first witness for the prosecution. Prior to the officer’s testimony all the jury will have heard is the voir dire and the attorneys’ opening statements. These are important, but they do not have the drama of that first bullfight with the arresting officer.
The officer is the one witness for the state who was present during the entire arrest. At the conclusion of the cross-examination, the compass is going to begin pointing in the direction of conviction or acquittal.
Know the case better than the police officer. This includes knowing the police officer’s report better than the officer. Police officers often do not know everything that is written in their own reports. They may know most of the report, but few officers know the particulars of everything in the report.
Do not cross-examine the officer in chronological order. Asking questions in chronological order allows the officer to see where the cross-examiner is headed. There are no surprises; it does not keep the witness off-balance, and it is not as interesting for the jury. However, this does not mean that you cannot ask about events that that are related to each other for purposes of cross-examination simply because they occurred next in time to each other. For example, the horizontal gaze nystagmus test and the Romberg test should be linked together in cross-examination even though they often occur chronologically next to each other during the actual administration of the field sobriety tests. [See §§8:50 & 8:51.]
Reduce damning field sobriety performance by contrasting it to something more negative that did not actually take place. The sixty-foot yacht does not look so big next to a battleship. For example, if the defendant stumbled during the walk the line test you might ask the officer the following questions: “Mr. Jones did not put his hand down?” “He did not grab you for support?” “He did not skin his knee?” “He did not fall down?” “He simply had a misstep?” This reduction technique at least allows you to do something with bad evidence.
Introduce the theme of your case in the early stages of your cross-examination.
If you have some impeachment evidence, introduce it in the early stages of your questioning. This lessens the officer’s credibility for the rest of the cross-examination. If the officer is embarrassed by any impeachment or mistake, check to see if the officer blushes. If the officer is blushing, this is a good time to ask the officer if a flushed face can be caused for reasons other than consuming alcohol.
Suggest possible police officer’s bias by asking the officer if he gets paid overtime for his courtroom testimony. If the officer is arresting DUI suspects in questionable cases, there is a greater likelihood that these cases will be questioned in court. This means more overtime for the arresting officer. However, you should only gently hint at this, unless you have strong evidence to the contrary. Let the jury ruminate about the possibility of police officer bias on their own. Selling such a notion is too hard. However, even if the jury does not come to the conclusion that the officer is possibly biased, asking the question about officer overtime pay will at least lessen some of the impact when your expert is asked the inevitable question about the expert’s fee.
If you find the officer is gaining the impetus in your cross-examination, ask about some minor point in his report that the officer may not readily recall. If the officer does not remember the information without reviewing his report, some of the officer’s momentum may be temporarily stemmed. For example, you might ask, “Officer, could you tell the jury what time the tow truck was called?” At the very least it will give you some time to gather yourself while the officer explores the report.
Ask leading questions.
Sometimes you are in doubt about how far to push the arresting officer on a particular matter. You would like to make the point a little more, but you fear that the officer may realize what you are accomplishing, and undo what you have done if you continue your questioning on the issue. How do you decide how far to drive the officer? This is a reoccurring problem in cross-examination. Fortunately, the rule is simple, effective and can easily be applied during the stress of cross-examination. Unfortunately, it took the author of this chapter seemingly forever to figure it out. In law school everyone is taught not to ask one question too many during cross-examination. How one is supposed to gage this cryptic moment somehow never gets covered. The rule as to when to terminate cross-examination, discovered by this author through trial and much error, is this: If the witness is smart, clever and experienced, end the cross-examination; if the witness does not possess these qualities, forge ahead.
Bury ugly evidence in the middle, if it must go in at all.
Conclude the cross-examination with an area emphasizing the theme of your case. End on an exclamation point.
§8:32 The Phrase “Field Sobriety Tests”
The phrase “field sobriety tests” suggests more than it deserves. The phrase itself gives these exercises some measure of credibility. However, field sobriety tests are not conducted in the manner that most people are familiar with in taking tests. That is, a person is not given an opportunity to prepare for the tests, and there usually is no score for the supposed tests.
The defense should call the field sobriety tests “coordination exercises” or “dexterity calisthenics.” If this is unworkable in your particular courtroom environment then address the field sobriety tests as “FST’s” instead of “field sobriety tests.” In this way the word “tests” is not constantly replayed to the jury.
Also, the word “sobriety” is somewhat inaccurate. Legally, we are not necessarily interested in testing for sobriety per se. What we really want to test for is driving impairment, and this is defined differently across the country.
For example, the following cases show different definition of driving impairment:
Georgia requires that the driver was “less safe” in driving due to alcohol consumption. [Stepic v. State, 226Ga. App. 734, 487 S.E.2d 643 (1997).]
Texas requires “intoxication,” and defines it as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substance, or any other substance into the body.” [Tex. Pen. Code §49.01(2)(A).]
California requires the person to be “under the influence” of an alcoholic beverage. This is defined as when the person’s “physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.” [Cal. Crim. Jury Inst. 16.831.]
Stage the attack on field sobriety tests so that points addressed with respect to one test can cross-contaminate the other tests.
An example is in the examination of the officer regarding the surface where the tests were given. Whether the particular test is the walk the line test, the Romberg test, or the one leg stand, it should be administered on a level surface. This is rarely the case because there is almost always a little gradient. It is not necessary or prudent to point out the less than level surface during your questioning on each field sobriety test. Make the point once, and then let the jurors seize on their own volition the fact that the same problem of a sloped surface exists with respect to the other field sobriety tests. Allow the cross-contamination to germinate. Mentioning the fact that the surface was sloped each time you talk about a different field sobriety test dulls the cross-examination and gives the appearance that you have no other points to make.
There are five general cross-contamination dynamics to employ in challenging a field sobriety test:
1. The testing area is sloped.
If the area was not level during the Romberg test, it did not suddenly become level during the one leg stand. Sometimes you will find that the testing area actually slopes in two different directions.
2. Lack of a baseline.
If the officer does not know how the defendant would have performed on the field sobriety tests without the consumption of alcohol, a claim cannot validly then be made that poor performance was due to alcohol impairment. Perhaps the defendant is not particularly coordinated. This point is best advanced during the cross-examination about a field sobriety test for which the defendant did especially poorly. Basically, it gives you something to talk about even with a bad field sobriety test.
3. The officer does not know the why of the test.
The prosecutor will tout the arresting officer’s knowledge, experience and training in administering and evaluating field sobriety tests because the state offers the police officer as an expert. One way to challenge this expertise is to query the officer as to why the test is administered in a certain manner. For example, few officers know the reasons why the head is tilted back and the eyes are closed in the Romberg test. For this reason the Romberg test is good place to use this cross-contamination dynamic.
4. Innocent reasons for poor performance.
Field sobriety tests are not easy for everyone. Fatigue, lack of coordination and stress are just of few of the many reasons to explain why someone did not perform well. The horizontal gaze nystagmus test is a good time to introduce the notion that there are many reasons why a person did not perform perfectly. The reason for this is that the horizontal gaze nystagmus test has a bevy of innocent reasons to explain a claim of failure on the test.
5. Complex instructions are given in a short period of time.
Most field sobriety tests have numerous requirements. Despite the complexity of many of the instructions, the tests are often explained and demonstrated only once, and in as little as ten to fifteen seconds. The defendant is then expected to have an instant retention of the instructions. Rather than a test, this process takes on the onus of a “pop quiz.”
Time how long the officer takes to give the instructions when the officer testifies about the instructions on direct examination. Then on cross-examination ask the officer if the officer gave the instructions to the defendant in the same manner as the officer just testified in court. The answer is almost always yes. Then have the officer confirm your reckoning that the instruction phase took all of fifteen seconds. In closing argument, remind the jury how well the defendant did on the field sobriety tests despite the brevity in which the complex instructions were given. Ask the jurors if they themselves can recall the exact instructions of all the field sobriety tests. Remind the jurors any difficulty they have in remembering the instructions is in spite of the fact that they have had the added advantage of being able to take notes. Also, the jurors have had the benefit of hours, not seconds, of time being spent in court discussing the field sobriety tests.
In one memorable case the defendant’s boyfriend testified that his girlfriend did not have bloodshot eyes the night she was arrested. Questioned if he had looked at her eyes during the night he replied “yes.” When asked why he was looking at her eyes, he paused, smiled and then replied, “Because, she has beautiful eyes.” The jury melted.
Hopefully the officer will not have seen the defendant before the night of the arrest. Therefore, the officer will not know what the defendant’s eyes normally look like. Some people naturally have bloodshot eyes. The officer does not have a baseline on how the defendant’s eyes typically appear.
Even if the person does not normally have bloodshot eyes, there are many factors that can cause eyes to redden. For example, fatigue, allergies, smog, and contact lenses can all contribute to bloodshot eyes. Smoke in bars can also act as an eye irritant. All of these factors, and particularly any factor peculiar to the defendant, should be raised during cross-examination of the arresting officer.
The following is a sample cross-examination of an officer on the issue of bloodshot eyes:
Q: Officer, prior to the night you arrested [the defendant] you had never met him?
Comment: Always use your client’s name in an actual case.
A: That is correct.
Q: And since you had never met him before, I take it you had never seen his eyes before?
A: That is also correct.
Q: You do not know how his eyes normally appear in the morning?
A: I do not.
Q: You do not know how his eyes appear in the afternoon?
A: I couldn’t tell you.
Q: You do not know how his eyes normally appear after working all day?
A: I haven’t the foggiest.
Comment: The witness is beginning to become a little cute. One way to help cure this is to grab the seemingly clever phraseology from the witness’s answer and turning it back around at the witness by incorporating it into the next series of questions.
Q: You haven’t the foggiest as to how long the defendant worked that day?
Q: You haven’t the foggiest whether the defendant’s work causes eye strain?
Q: You don’t even have the foggiest where the defendant works?
Q: Can you tell the jury how the defendant’s eyes appear normally at night?
A: I cannot.
Comment: The tonic appears to have worked. The witness is disengaging from the battle.
Q: Let me ask you, officer, there are a number of things that can cause bloodshot eyes?
Q: Smog can cause it?
Q: Fatigue can cause bloodshot eyes?
Q: Contact lenses can cause it?
A: Like I said, there are other reasons that can cause it.
Comment: Most DUI arrests take place late at night. This means the officers working the graveyard shift make the bulk of the arrests. Trials are usually conducted during the day. This is the time most graveyard shift officers are sleeping. Because of this, an unusual number of these officers come to court with remarkably bloodshot eyes. Make it a point to look at the police officer’s eyes. If the officer’s eyes are bloodshot, try the following examination.
Q: Officer I couldn’t help noticing your eyes are pretty bloodshot themselves?
A: Yes, they are.
Q: You haven’t been drinking by any chance, have you?
A: No, I have been up late.
Q: So being up late is can cause bloodshot eyes?
Comment: This is a good place to end the examination on bloodshot eyes.
The main goal in cross-examining the arresting officer about the odor of alcohol is to establish that the odor does not really mean much. Conveniently, this is not difficult because alcohol itself is virtually odorless. The aroma associated with alcohol is the flavoring that gives the beverage its taste. The best proof of this is “near beer.” It smells like beer, but has no effect like beer because it has little to no alcohol. Curiously, alcoholic beverages with the least amount of alcohol in the drink tend to the have the strongest odor. For example, beer has a more pervasive scent than vodka.
You can gain some insight about the officer’s experience in courtroom DUI practice from how the officer describes the odor of alcohol. The more experienced officer will state that he or she detected the odor of an “alcoholic beverage” coming from the person, and will avoid the claim that he or she detected the “odor of alcohol.”
An officer cannot determine how much alcohol the defendant consumed by the odor. Most officers will concede in court that based upon the odor of alcohol they cannot tell you how much the defendant had to drink. They will also generally testify that they cannot even tell you what type of drink the defendant had by the odor of alcohol. If an officer tries to argue the contrary then you can respond with a Daubert/Kumho Tire motion because there is no scientific backing that anyone can determine the amount of alcohol consumed by a person by the odor of alcohol emanating from them.
Questioning on the topic of alcohol odor is a relatively safe line of inquiry. Therefore, you may want to place this area of inquiry before or after a more challenging topic. Placing a safe area before a difficult one allows you to build up some momentum before broaching the tougher topic. Similarly, inserting a safe area after a difficult one grants you a smoother exit from the thunderstorm.
The following is a sample cross-examination of an officer on the issue of the odor of alcohol:
Q: You 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?
Q: Could you tell us what time she finished having something to drink?
Q: Based upon the odor of alcohol could you per chance tell the jury and myself how much the defendant had to drink?
Comment: Make occasional efforts to align yourself with the jury by asking the witness to tell something to the jury and to you.
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 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.
Q: 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?
§8:43 Slurred Speech
During the trial the officer repeatedly acknowledged that slurred speech was an important factor in the officer’s decision to arrest the defendant. A friend of the client testified that the defendant’s nickname was “Mumbles.” The reason for the nickname became clear when the defendant testified—the soberest slurred speech you ever heard.
Cross-examining an officer on slurred speech is like being on a transatlantic voyage: once you are on the ship there is no easy way out. Because of this, it is often best not to start that journey in the first place. The arresting officer is not going to concede the defendant’s speech was normal if the officer described the speech as slurred. Therefore, if you can, avoid directly questioning the police officer on the area of slurred speech.
Instead, approach the problem from a different direction. Ask the officer throughout the cross-examination the responses the defendant gave to the many questions that were posed by the officer. Then during closing argument make the point that the defendant’s speech could not have been all that slurred because the officer apparently understood all of the defendant’s answers to the many questions that were asked.
Another approach is through friends who were with the defendant during the night of the arrest. Try to get as many witnesses as you can who spoke with the defendant just before the defendant drove. People in the car at the time of the driving make even better witnesses. They will have contemporaneous knowledge of how the defendant’s speech sounded while the accused was driving. Interview anyone who the defendant called from jail. If there is a telephone answering machine or voice mail recording of all or a part of the defendant’s call from jail, obtain it, and review it.
§8:44 Flushed Face
Discrediting the claim that a flushed face is a factor suggesting intoxication is not particularly difficult because there are many innocuous reasons for having a rosy complexion.
The most obvious situation is that the defendant normally presents a ruddy facial appearance. If you have such a client, underplay your hand. Let the jury come to this realization unaided by your input. Jurors love to point out facts that they believe the attorneys missed. When such a fact is “discovered” by a juror it can take on more significance than if the lawyer highlighted it because it becomes the juror’s vested finding.
If your client does not normally have a ruddy complexion there are still many other reasons for having a flushed face. For example:
Sunburn reddens skin.
Some women add blush as part of their makeup.
Many people who are embarrassed, angry, afraid or nervous may experience a flushed face. Nighttime contact with the police can easily produce one of these reactions.
During your questioning of the police officer be on the lookout to see if the officer becomes embarrassed about something. For example, maybe the officer misspells a word on a diagram, or perhaps forgets the prosecutor’s name. Whatever the instance, if the officer is embarrassed and experiences a flushed face due to the stress of the embarrassment, it is the perfect time to ask the officer about why perfectly sober people can experience a flushed face.
Field Sobriety Tests
The horizontal gaze nystagmus test (HGN) is often the first field sobriety test administered. Usually the officer does not need probable cause to arrest before requesting a driver to perform a field sobriety test. [Galimba v. Municipality of Anchorage,19 P.3d 609 (Alaska App. 2001).]
The first goal in the attack on the test is to assess if it was properly administered. Take verbatim notes during the direct examination by the prosecutor on the HGN test about how the officer administered the test. There are at least 25 different steps that need to be performed to properly conduct the HGN test. The NHTSA manual says that the procedures must be followed with precision and that failure to do so renders the results unreliable.
Make the jury aware that the tests are standardized field sobriety tests—not randomized field sobriety excursions. If the arresting officer is not willing to help in announcing this fact, make sure your expert is. Explain to the jury that an agency of the federal government (NHTSA) has established that the tests must be given in a particular manner or they are not reliable. No freelancing is permitted.
Even if the officer administered the HGN test flawlessly, the test is still subject to attack. Point out through your questioning that HGN can be caused by a number of reasons other than alcohol intoxication. HGN occurs naturally in some people. Also, fatigue, illness, hypertension, and common drugs like caffeine or aspirin may contribute to HGN. [For an exhaustive list of drugs that can cause nystagmus see Chapter 7, Field Sobriety Tests.]
Another goal is to have the officer commit to the fact that the defendant’s head remained still during the HGN test. Most officers will readily concede this fact because the test cannot be administered unless the defendant keeps his or her head still. The fact that the defendant kept his or her head still will become important later when you link the HGN test to the Romberg test.
The following is a sample cross-examination of an officer on the issue of the horizontal gaze test:
Q: Officer which direction was [the defendant] facing when you looked at her for horizontal gaze nystagmus?
Comment: Always use the person’s real name not the moniker “the defendant.”
A: I think she was facing north, but I am not exactly sure.
Comment: The officer has problems with the first question. If the officer is not sure which way the defendant was facing the officer cannot tell you if the defendant was facing the lights of oncoming traffic. Such a position should be avoided as it can create distractions that invalidate the test. [SFST Student Manual, p. V111-16.] Instead of allowing the officer’s memory to suddenly improve, move on and bring out the problem with oncoming traffic with your expert.
Q: You told the defendant to put her feet together?
Q: You told her to place her hands at her side?
Q: And she did as you asked?
A: She did.
Q: She was cooperative with you?
Comment: If the defendant was cooperative make sure the jury knows about it. Likeability is a huge factor in acquittals.
A: Yes she was.
Q: You told her to keep her head still?
Q: And she did keep her head still?
A: Yes, her head was still.
Comment: One goal (that the defendant was cooperative) is already accomplished.
Comment: When cross-examining the police officer regarding the HGN test try and add to the mystic feel the test inherently has by occasionally using what may be called “sorcerer verbs and words” in your questioning. Two examples of these types of questions follow.
Q: Officer as you eyeballed the defendant’s eyes how far away were you?
A: I was probably two feet away.
Q: When you were peering into the defendant’s eyes did you wave a pencil or wand back and forth in front of her eyes?
A: I moved a pencil.
Q: Which way did you go first?
A: I went toward her left eye.
Comment: The officer had a 50/50 chance and either knew the proper procedure or guessed correctly.
Q: How far away did you hold the pencil?
A: About 8 to 10 inches.
Comment: This answer makes it look like the previous answer was a guess. The stimulus should be held 12 to 15 inches away.
Q: That is not the proper distance is it?
A: It is about where I usually place it.
Q: How long did it take you to move to the side of the defendant’s left eye?
A: I do not really keep track, probably a couple of seconds.
Q: How many passes did you make?
A: I do one pass to each eye.
Comment: As your expert will explain the proper procedure is two times for each eye.
Q: You said you observed the onset of nystagmus prior to 45 degrees?
Q: Did you do that at the same time you were checking for smooth pursuit?
A: I did.
Comment: Checking for lack of smooth pursuit should be done separately in a different stage of the test. The officer has already testified to at least three errors in the testing process. You can continue to probe for more errors, but you risk losing the jury’s interest. Your expert can easily testify now that the test is meaningless because it was not administered properly. Another one of your goals has been accomplished.
Q: Nystagmus occurs naturally in people?
A: In some people.
Q: Disease causes it as well?
A: It can.
Q: Well, Wernicke’s encephalopathy causes it, doesn’t it?
Comment: Letting the witness know that the examiner is the expert not the witness.
A: I am not sure.
Q: Do you know if influenza can cause nystagmus?
A: I am not sure.
Q: Well how about hypertension, vertigo, arteriosclerosis or even sunstroke, can’t they also cause it?
Comment: The prosecutor does not dare object to the question as being compound lest the witness’ lack of knowledge be drawn out with a series of questions.
A: Again, I do not know about diseases.
Q: Well how about non-diseases. The consumption of caffeine can cause nystagmus?
A: That I have heard.
Comment: One wonders if the witness is now telling the truth.
A: I do not know.
Q: What about nicotine? Doesn’t that cause nystagmus?
A: I am not sure.
Q: Well do you know if my client had a cigarette before you stopped her?
A: I do not.
Q: Do you know if she was around other people who were smoking?
Comment: This takes advantage of many people’s fear of second hand smoke.
A: I do not know.
Q: Do you know if she had any coffee earlier?
A: I did not ask her.
Q: Did you ask her if she had consumed any soft drink beverages that contained caffeine in them, like diet Coke or Pepsi?
Q: Eyestrain will cause nystagmus too?
Q: Eye muscle fatigue will also present itself as nystagmus?
A: It can.
Comment: The cross-contamination of the other field sobriety tests is being developed here as well. Clearly, there are reasons for a given performance on a field sobriety test that is not necessarily attributable to alcohol consumption.
Q: Prior to you arresting her, do you know if the defendant was doing any work that could create eyestrain, for example working at a computer?
A: I do not know.
If the officer used both the horizontal gaze nystagmus test and the Romberg test then the cross-examination sequence should generally be to cross-examine on the Romberg test immediately after cross-examining on the horizontal gaze nystagmus.
The two should particularly be grouped together if the officer conceded that the defendant kept his or her head still during the nystagmus examination. The reason for this is that the officer almost never instructs the subject to remain still during the Romberg test. However, the officer marks off for any sway that occurs during the test. If the defendant remained still during the nystagmus test when instructed to do so, presumably the defendant could have done the same if he or she had been given a similar instruction on the Romberg test.
The fact that the defendant is marked down on the Romberg test for swaying, even though he or she was not told to remain still is not the way people (jurors) normally perceive a fair test should be given. Remind the jurors of this through your cross-examination.
Another cross-contamination dynamic that can frequently be used for the Romberg test is when the officer does not know the purpose of the test. Use this failure to your advantage. It will diminish the officer’s perceived expertise in the Romberg test, and infect his perceived expertise with respect to the other field sobriety tests.
The following is a sample cross-examination of an officer on the issue of the Romberg test:
Q: Officer you administered the Romberg test to [the defendant]?
Comment: Watch how the word “test” will slowly be replaced by the word “exercise” during the cross-examination. Also, do not to use the word “defendant” in a real case. Always use your client’s name.
Q: This is also known as the modified position of attention test?
Q: And the reason it is called modified position of attention test is because nobody normally stands this way?
Comment: The question reminds the jurors that these tests put people in abnormal positions.
A: I suppose.
Q: As I understand it, this coordination exercise requires the person to put their feet together, their hands at their side, tilt the head back, close their eyes, and estimate 30 seconds?
A: That’s correct.
Q: Why do you have the person put their feet together?
A: I am not sure.
Comment: The officer seems a little lazy here. The officer could have figured this answer out with some effort. Nonetheless, the cross-examiner preliminarily obtains some information about the witness. Already, the witness does not seem particularly well informed, and at least right now does not seem terribly interested in competing in the cross-examination clash. Remember the rule about how to determine whether or not to push an officer on a point: if the police officer is bright, cagey and resourceful, do not push the point. However, if the officer does not have these dangerous witness qualities, then press the point. At first look, it appears we have an officer in the latter category. We will continuously monitor this evaluation as the examination develops.
Q: The reason is to narrow the base? Make it more difficult to balance?
Q: An athlete would not stand this way for balance?
A: Probably not.
Q: Well, a football player would not get in a three point stance with their feet together would they?
The Prosecutor: Objection. Beyond the witness’ expertise as to what a football player does.
The Court: Well, I think it is probably within his common experience. Overruled, you may answer if you know.
A: I do not think football players crouch or stand that way.
Q: Not just football players. No athlete stands this way for balance, be they football players, basketball players, tennis players, track athletes, golfers, or soccer players?
Comment: Since the prosecutor did not like the question, repeat the question with a larger dose of what the prosecutor did not like. This sometimes has the effect of quelling objections.
A: That is correct.
Q: And for the same reason you have the person keep their hands at their side?
A: It makes it more difficult to balance, people want to put their hands out for balance. People who are intoxicated often want to put their hands out. Your client kept her hands at her side, but I have seen lots of people who were under the influence keep their hands at their side.
Comment: The officer has decided to enter the fight and reengages the examiner. If possible, attack now, to help subdue this new enthusiasm.
Q: Not just people who are under the influence want to put their hands out; your hands were extended when you walked up and took the witness stand?
A: I suppose.
Q: Even a child walking on a curb instinctively puts their hands out for balance?
A: Yes, but they were not instructed to keep them at their side.
Q: My question officer, is that the reason you have the person keep their hands at their side is that it makes it more difficult for the person to balance, because that is not the way people normally stand?
Comment: Reintroducing the fact the position is not a normal one for people.
A: And I told you yes, but it is part of the test.
Q: Why do you have the person tilt their head back?
A: I do not know.
Q: Isn’t the reason, that tilting the head back alters the fluid in the inner ear, again making it more difficult to balance?
A: I do not know.
Q: Please tell the jury why you have the person close their eyes?
A: I don’t know, it is part of the test.
Q: You do not know the reason?
A: I do not know the reason.
Comment: This is the common answer to this question and to the question about why the head is tilted back. The officer looks less like an expert now because the officer does not know the why of the test. Hopefully, this will cross-contaminate the officer’s perceived expertise in administering and assessing the other field sobriety tests.
Q: The reason is to eliminate a reference point, again make it harder to balance?
A: I don’t know, it’s possible.
Q: The whole exercise is comprised of things that people do not normally do—no one normally stands this way?
Q: What score did the defendant get on the Romberg exercise?
A: I do not score them. I just note that the person failed to perform as demonstrated.
Q: There is no score?
Q: Well, let us give her a score? You asked her to put her feet together?
Q: And she did that.
Q: You asked her to keep her hands at her sides, and you already told us that she did this as well?
Q: She estimated 30 seconds as 25 seconds, and this is in the normal range?
A: She passed that part.
Q: You asked her to tilt her head back and she did this?
Q: You told her to keep her eyes shut and she did this too?
Q: So for the things that you asked her to do she did them all—100%?
A: No, like I testified when the D.A. was questioning me, she failed because she was swaying noticeably from side to side 2 to 3 inches.
Q: But, officer everything you asked her to do she did. 100% is passing in most schools isn’t?
A: She swayed.
Q: But, you did not tell her to remain still?
A: No, I did not.
Q: You were marking her off on something you did not tell her to do?
Comment: Most people think such an evaluation is unfair. In closing argument ask jurors the rhetorical question of how they think someone would feel if they were given a poor job evaluation because they did not do a task that was not part of their job.
Q: When you had her perform the nystagmus exercise you told her to keep her head still?
Q: And when you asked to her to keep her head still she did so?
Comment: Your nystagmus work is now paying dividends.
Q: So we know that if you tell her to keep still, she can?
A: She did it on the one exercise.
Comment: If you are subtle and persistent sometimes the witness will actually start to adopt your word usage (changing “test” to “exercise”).
Q: You just didn’t ask her to do it on the modified position of attention exercise?
A: I did not ask her.
Q: Everything you asked her she did?
The officer testified he instructed the client to lift his leg up, tilt his head back and then to close his eyes. I knew this test could not be done by an Olympic gymnast. Knowing my good fortune, I decided to end my cross-exam of the officer by having the officer demonstrate the test in court. Watching the officer fall down in court seemed a nice way to end the examination. The out of shape officer stepped down from the stand, and began the test. As time began to pass with his foot merrily stuck perfectly in the air, my face became more and more flushed.
—From The DUI Wars
Despite the creation of the NHTSA standardized field sobriety tests, you are unlikely to run across officers who administer the tests in the manner required by the NHTSA standards. This is particularly common with the one leg stand. You will see every possible variant of the test given:
Some officers will have the subject count out loud to 15 while holding their foot up.
Other officers will tell the subject to count silently to 30 in the same pose.
Still others will tell the person taking the test to keep their foot up until the officer tells them to put it down.
Some officers want the hands held at the side during the test, others want the hands held parallel to the shoulders.
Despite the varying standards the test may still come into evidence because many courts feel the tests are well established. [Smith v. City of Tuscaloosa, (1995 Alabama Crim. App.) 666 So.2d 101(Field sobriety test are not novel scientific tests).]
If the officer is NHTSA trained make sure the test is administered exactly as specified by the NHTSA protocol. NHTSA acknowledges that people over 65, people overweight by more than 50 pounds, or people with leg injuries may have difficulty with the test.
If the officer is not trained pursuant to the NHTSA standards, have your expert testify as to the importance of following the standardized procedures developed by NHTSA.
The following is a sample cross-examination of an officer on the issue of the one-leg stand test:
Comment: This sample assumes a poor performance on the test. The cross-examination uses the cross-contamination dynamic of a lack of baseline as to how the defendant would do on the test without alcohol consumption. Also, the dynamic of illustrating how field sobriety test instructions are often given in a matter of seconds is highlighted. Finally, the technique of reduction is demonstrated to try and take some of the edge off of the poor performance. All of these techniques allow the cross-examiner to have something to discuss even when the defendant performs in a lackluster manner on a field sobriety test.
Q: Officer as I understand it you told the defendant to stand with her feet together, put her arms at her sides, raise her foot off the ground six inches, look at her toe, and count to thirty seconds in the following fashion, one thousand and one, one thousand and two, one thousand and three, etc.?
Comment: As is typical, the instructions given in this hypothetical deviate somewhat from the actual NHTSA instructions. Most notably, in the NHTSA instructions the person is told by the officer to hold the foot off the ground in a stiff-leg manner and to hold the foot parallel with the ground. Also the person is not told to count to thirty, but rather to count until the person is told to stop. The officer keeps track of the time, allowing thirty seconds to elapse before terminating the test.
A: That is what I told her.
Q: Did you explain the instructions to the defendant in the same manner that you explained the instructions to the jury today?
A: I always explain the instructions the same way.
Q: I take it then that your answer is yes.
A: My answer is yes.
Q: Because, I couldn’t help but noticing sir, that you gave the entire instructions to her in 14 seconds?
Comment: Introducing the cross-contamination dynamic of quick instructions.
A: I suppose. I don’t time them.
Q: Well, I timed them when you gave them in court today, and the instructions took all of 14 seconds?
A: It probably did then.
Q: And there are a number of tasks you ask her to do during this 14 second briefing?
A: There are only 5 or 6 instructions.
Comment: The officer is trying to minimize the significance of the brevity of the instructions. You should in turn take up this new twist by doing the division yourself and arrive at the next question.
Q: Well then, that would permit a grand total of about 2 to 3 seconds of time per instruction?
Q: The defendant did not grab onto you for balance during the test?
Comment: This is the start of the reduction technique. Ask the officer about things the defendant did not do, that are much worse in comparison to the things that she actually did. This juxtaposition makes your client’s performance not look so bad.
Q: She did not ask you to stop the exercise?
Q: Her hand never touched the ground?
A: No it did not.
Q: She did not hop up and down?
Q: She did not fall to the ground and scrape her knee?
A: No she didn’t.
Q: What she did do is put her foot down a few times during the exercise, and raise her arms up?
Comment: This is the completion of the reduction effort, hopefully reducing the damage of a bad field sobriety test as much as you can.
A: Yes, and she also failed to hold her foot off the ground six inches.
Q: She did not hold her foot off the ground six inches in your opinion?
Comment: If you ask a question that appears to include a negative fact in the question try and add the tag line “in your opinion” to the question. To a large measure DUI trials involve opinion evidence. Make sure jurors are aware of this. The officer will have an opinion as to how bloodshot the defendant’s eyes were. The officer will also have an opinion as to how well the defendant performed on the field sobriety tests. The experts will have opinions as to what the defendant’s blood alcohol level was at the time of the driving. Opinions abound. Opinion evidence is subjective evidence. Subjective evidence is close to reasonable doubt evidence.
A: Yes, she only held her foot three inches off the ground.
Q: You told her to look at her toe?
Q: Her toe is part of her foot?
A: Of course.
Comment: The witness apparently does not know where the examiner is headed. This is one of the benefits of not asking questions in chronological order. It does not give the witness as much time to anticipate questions.
Q: Her toe was six inches off the ground wasn’t it?
A: Yes, but I meant the bottom of her foot was supposed to be six inches off the ground, not her toe.
Comment: This problem would have been avoided if the officer gave the NHTSA instruction. That instruction requires the foot to be held parallel to the ground. As a self-test ask yourself if you remembered this part of the one-leg-instruction which was explained just moments ago in this work at the start of the sample cross-examination on the one leg stand. All but the most retentive will have suffered some memory loss as to the precise instruction. Developing empathy for your client increases your zeal.
Q: When I went over the instructions that you gave her for this exercise you did not mention this, in fact you said and I quote: “I always explain the instructions the same way”?
A: I do.
Q: By the way, she did not do the exercise in tennis shoes did she?
A: No she had dress shoes on.
Q: Well, dress shoes does not give the jury a complete picture does it, these dress shoes had heels?
A: Yes, but I wouldn’t call it a high, high heel.
Q: Well it wasn’t a low, low heel either was it officer?
A: No, they were raised somewhat.
Q: Officer, prior to the evening you arrested my client you had never met her before?
Q: I take it then you had never previously given her the one leg stand exercise before?
A: I had never met her before.
Q: Then I presume you do not know how she would perform on the one leg stand if the exercise was given to her in the morning or in the afternoon when she had not been on her feet all day?
Comment: This is the beginning of the use of the cross-contamination dynamic of the lack of a baseline as to how the defendant normally does on the field sobriety tests.
A: I do not know.
Q: And is it fair to say that you do not know how she would perform if she was wearing tennis shoes?
Comment: Reminding the jury of the less than optimal footwear the defendant was wearing during the test.
A: I can’t say for sure.
Q: You do not know how she normally performs on this exercise do you?
A: All I can tell you is how she performed.
Q: And if you don’t know how she normally performs, you cannot tell the jury her performance on the one leg stand was affected because of alcohol?
A: I have an opinion.
Comment: Since the witness ignored the question, the questioner decides in this particular instance to ignore the answer. The question was asked in the form of declarative sentence. Sometimes “stating” the question in this manner can make the point to the jury as well as the answer would. For another example, see the next question.
Q: For that matter you cannot tell the jury how she normally performs on any of the FST’s, because you do not know what her baseline performance is for any of the FST’s?
Comment: This time the cross-contamination dynamic is brought out into the open, burning the linkage into the jurors’ collective consciousness.
A: Like I said, all I can tell you is how she did on the night I observed her.
Jurors are familiar with the walk the line test. Most of them have seen the test demonstrated on a television show or in a movie, so it is now part of American DUI folklore.
The test seems relatively straightforward: walk on a line. For this reason jurors presume that the test (which is relatively easy as they understand it) must have some validity. Most jurors are unaware of the actual complexities of the test. One goal in the cross-examination is to make sure the jury understands that this test is not as simple as urban legend would lead them to believe.
First, the test is rarely given in the exact format that NHTSA requires.
Also, because of the extensive balance problems the test presents, this is a good place to introduce the cross-contamination dynamic that the testing area is sloped if your investigation reveals that this is the case.
You can develop your own scoring system for the walk the line test. Because of the numerous tasks that the test requires, anyone who does even moderately well should be able to get a passing grade if you give the subject a positive point for each item they did successfully.
The following is a sample cross-examination of an officer on the issue of the walk the line test:
Q: The first thing you had [the defendant] do is put her left foot on the line?
Comment: Remember to use the client’s actual name.
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?
Comment: A raised eyebrow can accompany this question. This is also the beginning of the information campaign that this test is a little more complicated than the jurors may have initially believed.
Q: How long did you keep her standing in this position?
Comment: A trap is set for the officer. The police officer is not going to want to seem like he kept the client standing in an awkward position for a long period of time. Therefore the officer is apt to give an answer that minimizes the amount of time he required the client to stay in this position. The problem for the officer, though, is that the time period he keeps the subject in this discomforted position is also the time period the officer is allotted to give the instructions for the test. A short time in the uncomfortable stance means the instructions were brief. Thorough instructions means the client was held in an uncomfortable position for an extended period of time.
A: I kept her there for only about 5 to 10 seconds.
Comment: Looks like the officer has chosen, willingly or unwillingly to go down the brief instruction path.
Q: And this was the time period during which you gave her the instructions for the rest of the exercise?
Q: Did she keep her feet in the correct position while you gave her the instructions?
Q: She maintained her hands at her side?
A: She did.
Q: Other instructions for the exercise required her take to nine heel-to-toe steps down the line, then rotate around and take nine steps back up the line?
A: That is correct.
Q: When she turns around she has to keep her front foot on the line and turn 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?
Comment: Laying the foundation for your closing argument about how difficult it is for anyone to remember the instructions, even if they were taking notes.
Q: She was cooperative with you?
Comment: If the client was cooperative, make it a goal to ask this question at least twice during the case. The client’s likeability quotient will rise with an affirmative answer by the police officer. Likeability is a key component in the calculus that comprises a not guilty verdict.
A: She was cooperative with me during my entire investigation.
Q: There are still more instructions for this exercise aren’t there?
Comment: This question serves two purposes. The question suggests to the jurors that the instructions seem like they will never end. Also note that this particular question is posed after the questions about whether any note taking was permitted by the client, and if the client was cooperative. Those queries are placed in this sequence to interrupt the flow about the questions regarding the instructions. When you start back up asking the officer about the remaining instructions, the officer may forget where he or she was, and omit one or more of the remaining instructions. If the officer cannot remember the instructions, how can you expect the client to remember all of them?
A: Yes, there are more instructions.
Q: Please tell the jury the remaining instructions.
A: I told her to keep her arms at her sides, to watch her feet at all times, and once she started walking not to stop.
Q: Those were the entire instructions?
Q: Didn’t you give her even more instructions during the 5 to 10 seconds that you were briefing her on the instructions.
A: Not that I recall.
Q: You also told her to count out loud for each step she took?
A: Oh, yes that’s correct.
Q: And she didn’t forget to do that during the test did she?
Comment: Contrasting the defendant’s memory with the officer’s.
A: No she did that portion fine.
Q: The only thing she did not do correctly in your opinion is that on four occasions she stepped off of the line a couple of inches, in three instances she did not touch her heel to toe, and once she raised her hands up?
Comment: If you are listing the amount of errors on a test always have the error count go from the higher number to the lower number. In this way the errors seem like they are diminishing, not increasing.
A: That’s correct.
Q: What score did she get on this exercise?
A: I don’t score them.
Comment: NHTSA does provide a scoring system for the walk the line test. The system uses failure analysis. Use your own scoring system that focuses on the positive things the client has done in the test.
Q: This line that you had her walk is it an actual line, or an invisible line?
A: It is an imaginary line.
Q: How long is the imaginary line?
A: It’s not determined.
Q: Well, how wide is the imaginary line?
A: I couldn’t say.
Comment: In closing argument make a passing reference to how the officer can say the client stepped a couple of inches off an invisible line when the actual width of the line is unknown. Remind jurors that most people’s familiarity with walking in such a manner would be when they were a youngster walking on a curb. A curb is several inches wide.
Q: Well you could say that the imaginary line was sloped?
A: The area was level.
Q: Officer, I want to show you a photo that has been marked for identification as Defendant’s Exhibit “A.” Do you recognize what is depicted in the photo?
A: Yes. It is the location where the defendant performed the field sobriety tests.
Q: In the photo you can see that the sidewalk slopes downhill towards where the mall is located?
A: Yes, but slightly.
Q: The sidewalk also slopes in a different direction toward the street too, doesn’t it?
Q: Did you give the defendant a chance to practice the walk the line exercise?
Q: Basically, as I understand it, you gave her 10 to 15 seconds of instructions, and then with no practice permitted, she had to walk on an imaginary line of an unknown width?
A: That is what the test requires.
Q: Well, that sounds more like a pop quiz than a test doesn’t it officer?
Comment: Not caring what the response is, knowing that everyone hates a pop quiz.
A: It’s how I do it.
The existence or nonexistence of an alphabet test frequently becomes an important issue in the fight over how the defendant performed on the field sobriety tests. This is especially true if the alphabet test is in written form. The instructions for the written alphabet test typically are as follows: Write the alphabet on a 3 x 5 card provided by the officer, then date and sign the card.
The significance of the results of the written alphabet test is immediately apparent. Unlike the other field sobriety tests (unless they are videotaped), the results of the written alphabet test are not open to much debate or question. The results are there for everyone to see. A good alphabet test should be blown up and made an exhibit for the defense—and it makes for a very compelling exhibit.
On the other hand, a particularly poor performance on the written alphabet test by the defendant may undo any effective attack on the other field sobriety tests. Jurors tend to believe if the defendant did poorly on this test, the other field sobriety tests were performed unsatisfactorily as well. If the client is not highly educated, you can bring this point out to help explain a poor alphabet test. However, unless you have a client who is illiterate, your efforts to diminish the effect of a weak showing on the written alphabet test may be unavailing.
When the alphabet test is asked to be performed orally much more room for argument exists. The instructions for the oral alphabet test typically are given in this manner: “recite the alphabet aloud, without singing it.” (Note: Requesting the alphabet to be recited backwards starting with the letter “Z” is urban legend. This author has never seen such a request made of a defendant by any police agency.) The oral alphabet is open to attack initially because the results must be recorded by the officer who hopefully recorded them correctly. The test is also asked to be performed in a manner contrary to the way most people have learned the alphabet—i.e., by singing it. It is kind of like asking a right-handed person to sign their name with their left hand. It can be done, you should know how to sign your name, but it is not the way you learned to write—and the results should not be unexpected.
If no written alphabet test is given the defense should trumpet this fact to the jury during the questioning of the arresting officer on cross-examination. An opportune moment to engage in this cross-examination arises when there is a significant disagreement over how the parties claim the defendant performed on some other field sobriety test.
The following is a sample cross-examination of an officer on the issue of the omission of the written alphabet test:
Q: Officer, it seems we may have different opinions on how the defendant performed on the field sobriety exercise, let me ask you this—are there other available field exercises that you could have administered?
A: Yes, but I gave him the same ones I give to everyone.
Q: I see, and the same ones you give everyone do not include the one test that would allow the jury to see exactly how the defendant performed that night?
Comment: Here it is acceptable to use the term test, as the defense is attempting to bolster the use of the one test that was not given.
A: I am not sure I know what you are getting at.
Q: Well officer, isn’t there one test, one field test that can in effect allow the jury to be there that night, to put them at the scene, to see exactly how the defendant performed?
Comment: At this point some officers figure out you are referring to the alphabet test, others need to be directly confronted.
A: Are you referring to the ABC test?
Q: Yes. And the results of this test are written on a card by the defendant?
Q: Everyone can see the results of this test, there is no dispute as to how the defendant performed?
A: I suppose so.
Q: And you chose not to give this test?
A: I never give the test.
Q: And so the jury is never given an opportunity to, in effect, be at the scene that night?
A: I give the same tests all the time.
Donald Bartell is on the Board of Directors of the California DUI Lawyers Association, and is a frequent lecturer around the state on DUI trial tactics. He has been asked to participate in the California DUI Lawyers Association and National Collegefor DUI Defense’s jury research project investigating what arguments resonate with jurors in drunk driving cases. He is the author of Attacking and Defending Drunk Driving Tests, from which this article is excerpted.