While 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. Finding the white space in the report – what your client did properly – is critical to demonstrating sobriety.
Depending on the witness, you may need to address any selective memory techniques should he/she become reluctant to acknowledge favorable facts. 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.
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. Carefully 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.
Gray 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”).
The 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.
The 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.
The 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.
Review 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.” The 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.
Just 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.