Cross Examination: Finding the White Space – Casper, Wyoming 2015

Cross Examination LectureWhile visiting with the Office of the State Public Defender in Casper, Wyoming last week (February 6, 2015) I also spoke about cross examination in DUI (DWUI) cases. Below is an excerpt of that talk. Cross Slides Wyoming 2015 JPEG for Blog.015Finding the white space in the report – what your client did properly – is critical to demonstrating sobriety.

Cross Slides Wyoming 2015 JPEG for Blog.003 Finding the white space in the report – what your client did properly – is critical to demonstrating sobriety.

Cross Slides Wyoming 2015 JPEG for Blog.004Identify the relevant driving behavior and highlight how it is relevant to the investigation.

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Cross Slides Wyoming 2015 JPEG for Blog.006Depending on the witness, you may need to address any selective memory techniques should he/she become reluctant to acknowledge favorable facts. Cross Slides Wyoming 2015 JPEG for Blog.007 It is critical to wed the witness to his written report in which he memorialized all the relevant details of the investigation at a point that was close in time to the actual arrest.

Cross Slides Wyoming 2015 JPEG for Blog.008 There are a number of important steps that require formal supervisory approval before a police report is filed. The information included in the report has been carefully selected, documented and subjected to supervisory approval. It is not appropriate for a witness to inject new facts that were not included in the formal report. Cross Slides Wyoming 2015 JPEG for Blog.009Carefully sift through all the stages of the investigation, importantly the initial encounter at the driver’s side window. This is an important stage in the investigation – the officer is evaluating impairment from the first moment he approaches the window. There may be important evidence of sobriety that should be examined and included if it is relevant.

Cross Slides Wyoming 2015 JPEG for Blog.011Gray space refers to the category of sober observations that the witness volunteered in the report(“polite” and “cooperative”), as well as observations that are consistent with both impairment and sobriety (“bloodshot eyes”).

Cross Slides Wyoming 2015 JPEG for Blog.012 Point out that bloodshot or watery eyes are readily caused by things other than alcohol. Simple fatigue or allergies can trigger this type of eye condition.

Cross Slides Wyoming 2015 JPEG for Blog.013The observation of a “strong odor of alcohol” can also be misleading. The strength of the odor may as easily be explained by the recency of consumption as it can be by quantity.

Cross Slides Wyoming 2015 JPEG for Blog.014 Cross Slides Wyoming 2015 JPEG for Blog.015 Cross Slides Wyoming 2015 JPEG for Blog.016The horizontal gaze nystagmus test (“HGN”), walk –and-turn test (“WAT”) and the one-leg-stand (“OLS”) are standardized field sobriety tests. They are called standardized because there is a national protocol that the officers are trained to follow every single time they administer these tests. The NHTSA training manual explicitly requires strict compliance with the protocol – even going so far as to claim the results of any field sobriety test would be invalid if the officer fails to comply with the protocol.

Cross Slides Wyoming 2015 JPEG for Blog.017 Cross Slides Wyoming 2015 JPEG for Blog.018 Cross Slides Wyoming 2015 JPEG for Blog.019The WAT is designed to test for 8 separate clues related to balance, coordination, and mental agility. The instructions are purposely layered, and somewhat complicated. Many of the clues the officer is looking for relate to the driver’s ability to remember the very specific instructions.

Cross Slides Wyoming 2015 JPEG for Blog.020The WAT and the OLS are referred to as “divided attention tests.” They are designed to divide a person’s attention by requiring the driver to perform a physical task while listening to instructions. Given the complexity of these tests, your client’s ability to perform much of the evaluation successfully is highly pertinent to your case.

Cross Slides Wyoming 2015 JPEG for Blog.021Review the arrest video carefully (if there is one).  Pay particular attention to the instructions that the officer gives.  All too often they score clues without having given the corresponding instruction, such as “do not start until you are instructed to begin.” Cross Slides Wyoming 2015 JPEG for Blog.022The imaginary line on the side of the road presents its own, unique challenge to precisely scoring an individual’s performance while adhering to the testing protocol. Without a discussion and agreement as to the width of the line, it is difficult for the officer to accurately report whether a line violation has occurred.

  Cross Slides Wyoming 2015 JPEG for Blog.024Just like with the WAT, on the OLS you want to closely examine whether the officer followed his training and protocol and highlight your client’s successful completion of various parts of the field sobriety test.

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Attorney Erin H. Gerstenzang
Attorney Gerstenzang is a criminal defense lawyer in Atlanta, Georgia who frequently lectures on legal topics relating to DUI and traffic law. Erin has also co-chaired many DUI Seminars working closely with nationally recognized experts in her field of practice. To speak with Erin, call
404-771-6675 or click here to schedule a consultation.