It is without question that the crime of Driving Under the Influence is given a great deal of attention by the legislature, courts, media and public in general, year in and year out. It is a crime that seems to touch every one. The Mothers Against Drunk Drivers certainly keep the heat on. Therefore, many defense attorneys believe it is simply impossible to get a fair and impartial jury to listen to the facts of any given DUI case and return a not guilty verdict. Often they sell their clients short by waiving jury trial in order to give their client a show, knowing that the end will come quicker and be less painless, if not for the defendant at least for the attorney.
Well, let's face it, you are not going to get a jury of drunks and quite honestly hoping for a "there but for the grace of god" jury is not always the best. Often those who need to look in the mirror are those who are the most difficult to convince. The key is to get the jurors to understand, through jury selection and reinforced through cross-examination of the arresting officer, that whether your client's normal faculties were impaired by alcohol is a matter of opinion. Even the admission of some breath alcohol test result, taken 75 minutes after the stop, does not provide them with sufficient information to find that the state has overcome their burden of proof. You have to accentuate the positive, highlight your clients own normal faculties (or natural negatives) and ultimately show the absurdity of the "dog-and-pony show" known as roadside sobriety tasks/tests.
Basic to every DUI case is the knowledge that it is one of the few criminal charges that can be proven one of two ways: either it's a breath or refusal-normal faculties case. In fact, often the first question asked of any potential client is whether they took a breath alcohol test or refused to do so. Many defense attorneys shy away from breath cases. Seeing even those cases where the test is just slightly over the limit as being unbeatable. This is simply untrue. Now, it is obviously easier if you have an expert but sometimes it is a financial burden on your client just to scrape the money together to hire a lawyer let alone an expert witness. However, even a breath case without an expert can be won.
First, you have to remember that axiom we were all taught in law school: never ask a question you don't already know the answer to and ask leading questions. It sounds simple. It sounds cliche but more often than not attorney's get up there and let officers go off with long narrative answers. Second, educate yourself about your client and where your client was stopped:
It is important that you know not just as much but more than the officer you are cross-examining. Even if the officer disagrees with your statement you must look confident and appear to the jury that you are right and he is wrong.
Trials are a show and the courtroom is your stage, use it. Get away from the podium. Remember that jurors remember 35 percent of what they see and 35 percent of what they hear but when you combine the two the average juror's retention rate increase dramatically to as much as 80 percent or better. When cross-examining the arresting officer I often keep a permanent marker in hand while I stand in front of a large pad on an easel. Instead of taking notes on a yellow pad at the podium I place the pad facing the jury and take my notes on the pad highlighting those things that I want the jury to remember. The jurors are not only listening to the questions and answers but also watching what I am writing. I am insuring that they are paying attention to me. You must play the part of the teacher at the black board.
Start from the beginning when questioning the officer. Break down the driving patterns to the smallest of details:
Often times the officer will say that he didn't note that information. You want to point out that he didn't cite him for failure to signal or use his headlights. Point out that he didn't include this information in his report. Generally, the state will get up and object that this is improper impeachment by omission under State v. Johnson, 284 So.2d 198 (Fla. 1973). However, this objection can be overcome if set up correctly. Johnson does not stand for the proposition that you can not impeach by omission but states that the omission must be a material, significant fact rather than a mere detail. Id at 200. You have to set up the fact that the officer is looking at the totality of the circumstances in making his decision to arrest the defendant. Point out that there are a number of cues that he is looking for including whether a subject's mental aptitude is impaired. Each of these cues has some importance in coming to his conclusion although certainly not the only one. Therefore, the fact the a DUI suspect failed to signal when making a turn would be a "material fact" and if in fact he did signal that would a positive sign. If the officer says chat he does not recall point out the fact that he didn't include it in his report or citation so it must be true that the defendant used his signal.
The same goes for maintaining the speed limit, not fish tailing when making a turn, not skidding to a stop in response to the officers lights, maintaining a single lane, reacting appropriately and timely to the officer's direction to pull over and doing so in a safe manner. A safe stop is another specific area where knowledge is extremely helpful. Did your client wait to pull over into a well lit parking lot rather than immediately stopping on the side of the road in a lane of traffic or if he was just a few blocks from home did he wait to stop until he got to his house. This must be pointed out on cross-examination. It is not only a positive, it paints your client as reasonable and highlights how the officer taints his testimony by making it look like your client failed to stop in a timely fashion. If your client was stopped in a construction zone did he managed to avoid hitting the barricades. Maybe he even maneuvered through them in stopping in order to be safely out of the on coming traffic.
The area of impeachment by omission plays an important part after the vehicle is stopped. Even before you get to the roadside sobriety tasks you must deal with the first direct contact between the defendant and the arresting officer. Again you want to break it down to the smallest possible details and pull out from those include that information in his report than impeach by omission. This information was obviously important and material enough for the jury to be told. When the officer gave your client directions and they were followed point it out.
Many men and women also have problems locating the requested documents simply because they are disorganized or have over stuffed wallets, purses or glove boxes. If your client is not going to testify this may be the time do use some demonstrative exhibits in cross- examining the officer. Your client should have his or her wallet or purse with them just as it was on the night they were arrested. Ask the officer if he recalls the condition of the wallet or purse. Was it full of cards and other items? Show the officer the wallet or purse as a demonstrative exhibit. You are not placing it into evidence. So long as what you are offering is aiding the jury in understanding a material fact or issue and is an accurate and reasonable reproduction of the object involved the Court should permit it. See Ehrhardt, Florida Evidence, Section 401.1, page 111 (2000). If you don't want to use either item at least go through the process of describing how it appeared. Be familiar with how your client keeps the requested items and the difficulty anyone would have in getting them upon demand.
Speech is always an issue in a DUI case. Invariably the officer will say that after the strong odor of alcohol emanating from your client's breath he noted slurred speech. How does he know the defendant's manner of speaking? Has he met with your client before? Is he familiar with his accent? How about his lisp or other speech impediment? What time of day was it when the arrest occurred? If it was late at night or the early morning hours it is time to start laying the foundation for building a fatigue issue. This is also the point where you will begin to develop your client's own personality and physical quirks for the jurors, or at least plant in the jurors' minds that these quirks might exist.
What did your client do when the officer first stopped him? Did he have his driver's license out or was he able to access it in a reasonable amount of time and fashion? If yes, point it out, accentuate the positive. The same goes tor registration and insurance information. When the officer testified on direct that your client fumbled for his driver's license or had difficulty locating it but didn't fatigued to slur their speech or have difficulty communicating. In jury selection you should have already begun this process by reminding jurors that the charge is Driving Under the Influence of Alcohol not Driving While Exhausted.
Your client is about to the exit the vehicle. First, did he do so upon request of the officer or did he jump out quickly. If he remained in the vehicle either at the officer's direction or on his own highlight it. The officer will almost always agree that even if they didn't direct the subject to stay in the car that is his preference; therefore, remaining in the car is the reasonable/positive thing to do. How did he exit the vehicle? Did he have any difficulty in exiting and once he did was there a need to use the car for support? Again, if the officer has testified that there was a problem but left it out of his report than raise that issue. Once your client is out of the car did he go where directed?. Usually the officer will direct him to proceed between the front the police car and the rear of the defendant's car, especially now that more and more police vehicles are being equipped with video cameras. How did he walk and stand when he was out of the car? The question for the jury is whether your client's normal faculties were impaired; therefore, you want to clarify that when walking and standing naturally he had no difficulty in maintaining his footing or balance. If you have a female client on high heels that showed no difficulty maintaining a natural balance or ability to walk that certainly should be highlighted.
Before we get to the dog-and-pony tricks that your client is about to perform let's address the topic of personality or emotions. I often call this "don't convict my client because he's jerk" de- tense. I have only lost one of these at trial. I chalk that up to having a female officer that was called every name under the book by my male client on a roadside video as well as the 30-minute ride to jail, his favorite word began with "c" and ended with "t." Needless to say he didn't inure himself to the jury even it he did say it without slurring his speech.
Everyone reacts differently to police officers. Some people simply don't respond well to authority figures and some police officers don't respond well to being challenged, often times making for a wonderful mix. While some individuals will be polite, cooperative and respectful-certainly things you want to highlight-others break down and cry, become talkative, or jittery and nervous. There is no way to say this without appearing sexist but women can get away with a lot more than men, at least when it comes to emotions and being upset. The officer generally has no previous contact with your client and nothing to gage how he or she reacts in stressful situations. Even when being stopped for a common speeding ticket some people are nervous.
Certainly, the officer will agree that everyone reacts differently to police officers. Being stopped on the side of a road, at night by a stranger-police officer or otherwise-and asked to stand outside with blue lights spinning, wig wags blinking, automobiles zipping by at high rates of speed and being asked to perform is a nerve racking experience for anyone. There is nothing "normal" about these circumstances. A female client will tell you that she was afraid because of the stories about women being sexually mo-lested by police or that she was suffering premenstrual syndrome at the time or actually going through her cycle. Again, this is an area where you must be more aware of the facts than the officer and these facts need to first be communicated i through cross-examination. If your client is ADD-H bring it out on cross-examination, even if undiagnosed but you suspect it, make the suggestion through your questions that the issue is out there. Bring up the possibility that people are not always aware of certain health problems, especially mental health issues. When questioning the officer, state that if someone is ADD-H that would effect his or her ability to stay on task. If the officer says no he will appear unreasonable to the jury. It your client is manic-depressive, was she going through a manic episode at the time and wouldn't that effect his opinion as to why she didn't stay on task or how she performed One tool I use in dealing with a client who is belligerent and uncooperative with an officer is to bring family members in to watch the video tape and go over the police reports. It gives you some further insight into your client's personality and potentially you develop i a defense witness tor trial. Who better to testify about whether someone's normal faculties are impaired than their own spouse. Sometimes it also brings some levity to a dreary situation when the wife testifies that she didn't even like her husband. The follow-up argument to this line of questioning is that you are not asking the jury to invite your client over for dinner but you cant't convict him simply because he is an idiot.
In the case of the defendant with some physical or mental health issue you simply reinforce the fact that the impairment must be due to alcohol and not some other problem. The other issue is important not to breed sympathy in the jurors but to show through cross-examination that there are alternative explanations to particular conduct. If the officer has fought you on this than his bias will hopefully be apparent to the jury when making your argument later. You want him to appear predisposed to interpret what he observes as being due to alcohol where an odor existed or where there is an admission.
Now, you have no expert but you need to attack the breath test results. The state does not relate back the breath test to the time of arrest and does not call the breath technician but simply admits the affidavit. What to do? Just raise the issue through the arresting officer. Raise the fact that the arrest occurred at a specified time and the breath test was not taken until some specified period later. Have the officer admit that based on the odor of an alcoholic beverage he can not tell what someone had to drink, how much he or she drank, when a person began to consume it and when they finished the last drink. Go on to have him agree that the breath test results do not indicate what your client's breath alcohol level was at the time he was stopped, only what it was at the time it was given. That the officer does not know whether your client was above or below a .08 at the time the vehicle was in operation. You may even be able to get him to agree that there are scientific theories that he is aware of that can relate a breath test back to the time of the stop. Although he is not qualified to perform such an extrapolation he should admit that such theories do exist.
In closing, I tie this up with some additional showmanship by tearing the breath test in half and letting it fall to the ground arguing that this is all the test is worth since my client has generally admitted to the consumption of alcohol. Through the cross of the officer, as well as closing argument, stress that the burden is on then state to prove the case against the defendant. The state is obligated to explain to the jurors what this test means. If the law states that that the defendant's breath alcohol level must have been above a certain limit at the time of driving, not 90 minutes later, what has the jury really learned? Answer, nothing.
Cross-examining the arresting officer on the subject of the Roadside sobriety tasks is a combination of your own familiarity with the tasks themselves and having the authoritative materials available at your fingertips. These tasks or tests, the courts have declared that they should only be referred to as tasks in or-der not to give them some undue significance, really have nothing to do with a person's normal faculties. They really are nothing more than parlor tricks.
Being stopped on the side of a road, at night by a stranger-police officer or otherwise-and asked to stand outside with blue lights spinning, wig wags blinking, automobiles zipping by at high rates of speed and being asked to perform is a nerve racking experience for anyone.
Putting aside the Horizontal Gaze Nystagmus (HGN) test, there are usually four tasks that a defendant is requested to perform:
"Being stopped on the side of a road, at night by a stranger-police officer or otherwise-and asked to stand outside with blue lights spinning, wig wags blinking, automobiles zipping by at high rates of speed and being asked to perform is a nerve racking experience for anyone."
Besides simple experience there are a number of sources you can go to. The United States Department of Transportation (USDOT) along with the National Highway Traffic and Safety Agency (NHSTA) puts out the DWI Detection and Standardized Field Sobriety Testing Student Manual. The manual is available through the National Association of Criminal Defense Lawyers (NACDL) as well as other sources on the Internet. The Institute for Police Technology and Management (IPTM) has one manual still in publication called DWI Mobile Videotaping: For Police and Prosecutors and another publication that I can not currently find called Florida Standardized Field Sobriety Testing: Screening Procedures, which was also published in conjunction with the Florida Department of Transportation (FLDOT). There is supposed to be a more recent incarnation of this book but I have yet to locate one. The primary difference is supposed to be a modification of the finger to nose task. The first is available at WWW.IPTM.ORG. There is also Roadside Sobriety Tests: A Police Officers Guide to Making Drunk Driving Arrests Stand Up in Court, James Whitmore, Callaghan and Company. The two most recent of the four are the material from the USDOT and NHSTA as well as the IPTM Videotaping Manual.
Section 90.706 of the Florida Evidence Code permits use of authoritative sources in cross-examination. Even it the officer doesn't recognize it as an authoritative source the Court can find the ma-terial to be authoritative and relevant to the subject matter. Most police officers will testify to some additional training through IPTM, especially if they are on any kind of DUI task force. Basically you will be using their own textbook to impeach them or at least raise a reasonable doubt. Since the Student Manual and the Screening Procedures were published by the federal and state The key theory behind SFST is the concept of divided attention: to concentrate on two things at once. Even before governments respectively the Court should recognize them as authoritative.
Interestingly, the Student Manual only has three approved tests under the Standardized Field Sobriety Tests (SFST): the HGN/ VGN (Vertical Gaze Nystagmus is used for drug detection), Walk and Turn, and One Leg Stand. The Finger to Nose Test and The Romberg Alphabet Test were left out. If you are able to have the officer or the Court recognize the Student Manual as an authoritative source you should point out that neither the Finger to Nose nor the Romberg Alphabet test are contained in the Student Manual published by the NHSTA. The Student Manual does set out three other techniques that are not labeled as SFST. It cautions that they may not be permitted in certain jurisdictions: E to P alphabet, count backwards from 68 to 53, and finger counting. None of these are used in Palm Beach County and the first two probably wouldn't be permitted unless Miranda was first read. The officer begins the SFST procedure he is using the concept of divided attention when making first contact with the defendant. There are three techniques the officer uses on that initial personal contact:
The officer is testing the suspect to see if he can concentrate on more than one thing at a time, be interrupted and yet return to the original task and whether he is capable of responding to that unusual request instead of the expected question, i.e. what is your middle name when the usual question would be what is your first name.
The officer will move on to the aforementioned tasks. Remember that the purpose of the SFST is to validate the arresting officer's conclusions that your client's normal faculties are impaired by alcohol. Yet, the very tasks your client is being requested to perform having nothing to do with normal activity. These tricks are anything but normal. They are out of the ordinary. This must be stressed as part of your questioning on each and every task. What person stands around on one leg on a daily basis counting by the thousands? Furthermore, who does so while standing on the side of 1-95 in the presence of a police officer at night with cars driving bv at 70 miles an hour? You want the jury to look at this behavior as abnormal. The same goes for walking heel to toe or touching your finger to your nose with your head tilted back and your eyes closed. I always ask the officer if he will agree that these are abnormal activities. That the average person does not walk in a goose step fashion along a line, invisible or otherwise. And certainly not under the conditions present at the time your client was asked to put on his show.
The officer may have demonstrated these tasks for the jury during his direct examination. You should note for the jury that the officer has demonstrated these tasks many times in the past and has even studied them under classroom situations in his training. The defendant wasn't given the opportunity to practice or read-up on how these tests are to be performed. Even the punter gets to warm up on the sideline before the kick. Why is it that your client should be able to perform these tasks under less than ideal conditions without practice? I re-demonstrate the tasks as I cross the officer, emphasizing each detail and adding a little bit of a "natural" wobble when I can. By no means do I complete the task. I've done these tasks hundreds of times. I know I can do them but the jurors don't. You may want to suggest to the jurors, if not directly than indirectly, that they try these tests for themselves in the jury room.
The Walk and Turn task usually consists of the officer first asking the subject to stand heel to toe with arms by their sides while he instructs them further. They are than directed to walk along a straight line for a specified number of steps, usually 9 out and 9 back in a heel to toe fashion. It is believed that by asking the defendant to go out an odd number of steps, rather than 10, the task will be more difficult. Supposedly it is easier to remember numbers in the directions when they end in zero. When the suspect is making his turn he should leave one foot on the line as a pivot foot, as if he is performing a pirouette, although the officer doesn't want an actual spin move. The officer is looking for the follow-ing clues when giving the test:
Slowness is not considered a problem; however, officers will often note that the defendant was deliberate in his steps. In other words, if your client is crying to be cautious and take his time he must be impaired.
The Student Manual warns that the "test may lose it's sensitivity if it is repeated several times." The perfect example of the bias of the procedure and how the officer is trained. The test is designed to be failed.
The task should be performed on a dry, hard, level, non-slippery surface. Both the Student Manual and the Procedures Screening explain that studies have indicated persons over 60-65 years of age or with back, leg, or middle ear problems as well as 50 pounds or more overweight have difficulty performing this test. This is why you have to be aware of all your client's physical and mental impairments. These potential limitations must be brought to the juror's attention.
The instructions for the One Leg Stand task are as follows: with arms down by their side, the subject is to raise either foot off the ground approximately 6 inches, foot pointed out; both legs should be straight; keeping eyes on the raised foot count by the thousands to 30. The test should be terminated after 30 seconds and if the subject puts his foot down before the time is up he should pick up where he left off. The following clues are what are being looked for on this task:
The same warnings about age and physical impairments apply to this task as well as heels of more than two inches. Again, knowledge of your client's natural limitations regardless of the consumption of alcohol is important. The conditions should also be the same as above.
There are currently two variations of the Finger to Nose task; although, I have seen others as well. This task is definitely not standardized. The one contained in the Screening Procedures book from IPTM requires a person to stand with hands by their side; index finger pointed out; eyes closed and head tilted back. The officer will then direct them to bring a called for hand upward, touching the finger to the nose and returning to position. The Screening Procedures even designates a sequence of Left, Right, Left, Right, Right, and Left.
Clues being assessed are:
Eyes not maintained in a close position, this usually includes fluttering although it is not specifically outlined as such in either source. Your client is being asked to trust the officer while those other motorist are driving by and he's standing on the side of the road with his eyes closed.
Unlike the old version, this one simply requires the Defendant to touch his nose with the tip of his finger rather than tip to tip. Even a more noticeable difference is the lack of the requirement for the defendant to stand with his arms extended outward from his sides and to bring the called for arm forward and rotate it back and then return in the same manner.
The Romberg Alphabet task is fairly simple in it's instruction if not it's performance. Stand with arms to the side, eyes closed and head tilted back and recite the alphabet or count, forward or backward, for the equivalent of 30 seconds in a non-rhythmic fashion.
The officer is looking for the following:
The numbers will generally only be used for individuals who do not speak English as their native language. Rarely, will you see an officer ask someone to count backwards. The fact that a person is being request to do something such as recite the alphabet in a non-rhythmic fashion again highlights the built in bias of the test. The defendant is being asked to do something completely against the natural instinct to sing the alphabet.
An area of roadside testing that most defense attorneys are unfamiliar with is wind shift or air displacement. When you are standing on the side of 1-95, you not only hear the cars driving by and suffer the fear that you might get struck by one; you feel the vehicle as it passes. You feel it in the form of air displacement or wind shift. The larger the vehicle the more air is displaced by that vehicle and the more wind is created. If you aren't worried enough standing on one leg and counting to 30 as you hear that 18- wheeler bearing down on you and the officer, you have to maintain your balance during that blast of air it creates as it passes. This principle can be just as valid on any road that has traffic driving by during testing.
Just as you want to break down your client's driving and initial contact to the smallest detail, you want to look for the little things he did right in the field sobriety testing. At the same time you should be impugning the integrity of the tasks by demonstrating how out of the ordinary they are and impeaching the officer with one of the texts if available.
If the officer wrote in his notes that your client failed to touch his finger to his nose but didn't indicate that the defendant failed to use the correct hand than take that as a positive and highlight it. Presume that he did use the correct hand. If the officer says he doesn't remember than set it up for impeachment by omission. The fact that the defendant used the correct hand goes directly to mental awareness. If he failed to touch his nose, where did he touch? This probably came out on direct so you shouldn't be going into uncharted waters. If he touched the bridge of his nose with the tip of his finger, so what? The question is whether he touched his nose. Did he sway? Was his head tilted back? Point out each thing, however small that he did correctly.
On the Walk and Turn, did he count correctly and out loud? If he failed to click heel to toe did he at least maintain his balance while he stayed on the line? The same goes for the Romberg Alphabet test. If he sang his ABC's did he at least do it correctlv? On the One Leg Stand was the count correct to whatever point he got to and did he do so as instructed? Be nit-pickv. And if an officer left it out and it is a listed or potential clue than bring it out and impeach him with it.
You must also remind jurors that fatigue, stress, nervousness and other factors may cause a defendant to perform poorly in the eyes of the officer. Not only must you accentuate the positives but highlight your client's natural limitations and the effects that they would have on performance. You must also keep in mind, as pointed out earlier, that the tasks have both physical and mental aspects. Your client may have a problem with the physical part of a task but not the mental portion.
Other areas of mental aptitude may appear when the defendant was asked about date, time, day of week, hair color, age, date of birth, home address, road he was sopped on, direction of travel and city he is now in. All these subjects usually come out at some time during the arrest procedures. Make use of it if your client provided the corrected information. Highlight it. Even the breath test can be taken advantage of if the defendant followed instructions and gave a solid blow.
Someone once said to me that if you can try a DUI case you can try anything. I believe that statement is correct, if for no other reason than the performance level that is required in doing a good job in defending the DUI client. You must in essence put on a dog and pony show with the courtroom as your stage.
Each detail is important in some way and may be just the point that sways a jury. Knowledge of the facts, both as to the incident itself, the conditions of the area and of your client are more important than in most cases. A burglary is a burglary and a possession of cocaine a possession of cocaine. Rarely is there a complicated issue. You are either arguing law or facts. But in a DUI case it is more often than not a combination of both. In part, because it is all a matter of opinion and whether they admit it or not i jurors are predisposed to dislike people who drink and drive an automobile regardless of impairment. Furthermore, you are not only trying to overcome that predisposition but the fact that most i jurors don't want to question an officer's opinion. You want to paint the man with the badge as providing tainted testimony that is skewed by his own perspective and training and is therefore not objective. That is why you have to accentuate the positives.
No one says it is easy. Not every case can be won and not every case should be tried. However, they can't be won at all if you don't try them and you need to; be prepared to dance. Good luck and don't let the ball fall off your nose.
Gregg Lerman is a board certified criminal trial lawyer in West Palm Beach. He wrote this article as an instructor of a recent DUI seminar on arresting officer-field | sobriety testing
Gregg S. Lerman, PA
1806 N. Flamingo Rd., Suite 355
Pembroke Pines, FL 33028