Defensive Tactics to OWI Trials/Cross Examination of

Arresting Officer

Patrick Harrington

Tippecanoe County Prosecutor

3 Standard Field Sobriety Tests

• The Horizontal Gaze Nystagmus (HGN)

• The Walk and Turn

• The One Leg Stand

Standardization is Critical

• The tests are administered in the prescribed, standardized manner

• The standardized clues are used to assess the suspect’s performance

• The standardized criteria are employed to interpret the performance

ATTACK 1

• According to NHTSA, “If any one of the standardized field sobriety test elements is changed, the validity is compromised.” (NHTSA, U.S. Department of Transportation, HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), p. Viii-3).

PESKY WARNINGS

• NHTSA also warns that any variations from ideal conditions, and deviations from the methodology allow the defense to attack the weight that should be given to the results

Attack on the HGN

• Can you explain HGN to the jury?

• Can you survive defense cross-examination of HGN?

• Are you aware of the other types of Nystagmus that can result in a clue?

Types of Nystagmus

• There are several different types of nystagmus and several causes for nystagmus.

Six Muscle Control/Movement of the Eye

• Superior oblique

• Rectus superior

• Medial rectus

• Lateral rectus

• Rectus inferior

• Inferior oblique

Vestibular Nystagmus

• Rotational– When the head/body is spinning or rotating

• Post rotational– Stopped spinning or rotating

• Caloric and positional nystagmus– Inner ear fluid

Positional Alcohol Nystagmus

• Pan I

• Pan II– What we are testing for

Neural Nystagmus

• Physiological– Occurs naturally in all individuals (though not readily

seen with the naked eye) to keep the sensory cells of the eye from becoming fatigued.

• Optokinetic– Occurs when the eyes follow a stimulus/object out of

sight• Gaze

– Occurs when the eyes move in a direction, generally side to side, when following stimulus

• Pathological nystagmus– Caused by diseases or some inner ear conditions

Can such things as the flu, strep throat, vertigo, measles, syphilis,

arteriosclerosis, muscular-dystrophy, create nystagmus?

• Yes

Can medications create nystagmus?

• Yes– Lithium– Dilantin– Klonopin– Diazepam

Natural End-Point Nystagmus

• Horizontal jerks will occur when the eyes are at the lateral extreme; you must know where 45 degrees is

• 50 to 60% of sober individuals who deviate their eyes more than 40 degrees to a side will exhibit nystagmus which is indistinguishable from alcohol induced nystagmus

Congenital Nystagmus

• A person who has defect in their motor system

Fatigue

• Fatigue exacerbates one component of the Horizontal Gaze Nystagmus test, end-position nystagmus

Alcohol

• Alcohol causes two types of nystagmus– Alcohol gaze nystagmus, which includes

Horizontal Gaze Nystagmus– Positional alcohol nystagmus (PANI, PANII)

48 Types of Nystagmus

1. Acquired2. Anticipatory (induced)3. Arthorokinetic (induced, somatosensory)4. Associated (induced, Stransky’s)5. Audio kinetic (induced)6. Bartel’s (induced)7. Brun’s8. Centripetal9. Cervical (neck torsion, vestibular-basilar artery

insufficiency)10. Circular/Elliptic, Oblique (alternating windmill,

circumduction, diagonal, elliptic, gyratory, oblique, radiary)

11. Congenital (fixation, hereditary)12. Convergence13. Convergence-evoked14. Dissociated (disjunctive)15. Downbeat16. Drug-induced (Barbiturate, Bow tie, Induced)17. Epileptic (ictal)18. Flash-induced (strobe lights)19. Gaze-evoked (deviational, gaze-paretic, neurasthenic, seducible, setting-in)20. Horizontal

21. Induced (provoked)22. Intermittent Vertical23. Jerk24. Latent/Manifest Latent (monocular fixation, unimacular)25. Lateral Medullary26. Lid27. Miner’s (occupational)28. Muscle-Paretic (Myasthenic)29. Optokinetic (induced, optomotor, panoramic, railway, sigma)30. Optokinetic After-Induced (post-optokinetic, reverse post-optokinetic)

31. Pendular (talantropia)32. Periodic/Aperiodic Alternating33. Physiologic (end-point, fatigue)34. Pursuit After-induced35. Pursuit Defect36. Pseudo spontaneous37. Rebound38. Reflex (Baer’s)39. See-Saw40. Somatosensory

41. Spontaneous42. Stepping Around43. Torsional44. Uniocular45. Upbeat46. Vertical47. Vestibular (ageotropic, geotropic, Bechterew’s,

Caloric, Compensatory, Electrical/faradic/galvanic, Labyrinthine, Pneumatic/compression, Positional/alcohol, Pseudo caloric)

48. Pan I Pan II

Door No. 1: Angle onset is not a reliable indicator

• BE sure you know where 45 degrees ends

• Protractor

• National Highway Traffic Safety Administration (NHTSA) research found that Horizontal Gaze Nystagmus (HGN) may be evident when a person’s BAC reaches approximately .06%

• Other studies– Smooth pursuit begins to break down at a

0.004% BAC– Some changes in HGN occur at a 0.003%

BAC

DANGER AHEAD

• So can you survive cross-examination where a defense attorney attacks HGN at .06% or more?

• Fatigue can induce nystagmus at maximum deviation of 50% of the people

– Nystagmus persists after BAC levels have fallen to zero

• Booker JL

HGN

• You must administer the test correctly

• You must know the test procedure

• You must know the clues

• Know the order in which to give the test

Scoring the Test

• Three clues of impairment:– Lack of smooth pursuit– Distinct nystagmus at maximum deviation– Onset of nystagmus prior to 45 degrees

• This test equals a total of 6 clues; 4 clues are necessary to fail the test

One Leg Stand

• Restrictions on test: Original research reveals the following:– The subject being over 65 years of age– Persons with back, leg, or middle ear

problems or over 50 lbs. overweight– Individuals wearing heels more than 2 inches

high

Test Procedure:

1. Tell suspect to stand with feet together and arms down at sides

2. Tell suspect to maintain that position while you give the instructions; emphasize that they should not try to perform the test until you say “begin”

3. Ask suspects if they understand4. Tell suspects that when you say “begin” they

must raise their leg in a stiff-leg manner, and hold the foot approximately six inches off the ground with the toe pointed forward so that the foot is parallel with the ground

5. Demonstrate the proper one-legged stance

6. Tell suspect that they must keep the arms at the sides and must keep looking directly at the elevated foot, while counting in the following fashion: “one thousand and one, one thousand and two, one thousand and three,” and so on until told to stop

7. Ask the suspect if he or she understands

8. Tell the suspect “begin”.

• The officer is also given the following instructions:– It is important that this test last for 30

seconds. You must keep track of the time. IF the suspect counts slowly, you will tell him or her to stop when thirty actual seconds have gone by, even if, for example, the suspect has only counted to “one thousand and twenty.”

Scoring the Test

• The One Leg Stand has four clues of impairment:– Sways while balancing (side to side or back to

front).– Uses arms to balance (i.e. more than 6

inches).– Hopping– Puts foot down

• Two or more clues classifies the subject as a 65% chance of being over a 0.10% BAC (NHTSA, U.S. Department of Transportation, HS 18 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), p. VIII-14).

Lack of Establishment of Normal Performance Standard

• Studies found the false positive rate as high as 54% for alcohol-free drivers at sobriety checkpoints (Compton, R., Pilot Test).

Traffic Stop Location

• It all starts at the traffic stop location– You must know the location and the

environment there as this will be the first attack by defense attorney

Is There Really a Level Road?

• Most roads are crowned and slightly sloped to facilitate water run off. Rarely is there a location truly level.

• Document the Footwear of the Defendant

Make Sure Your Police Report is Accurate

• Do not duplicate your police reports– Defense attorneys will get copies of other

arrests you’ve made and compare the language and mannerisms in which you write your report

– Similarities may be open to the attack in front of the jury to show that you are mass producing reports

COUNTER-ATTACK

• Know your training and the amount of time spent during training for each area of field sobriety test and OWI investigation

• Prepare and bring with you a list of your training and the amount of time spent. When questioned, inform the defense attorney “I have an exhibit with me that shows my experience and training if you would like to look at it”.

Document the Physical Abilities of the Defendant

• Note large thigh syndrome as a defense to field sobriety test results. Large thigh syndrome pertains to individuals who have large thighs either due to being overweight, weight lifting, or heredity.

• Large thighs makes it difficult for those persons to perform the walk and turn test because their thighs prevent them from placing one foot directly in front of the other– When you appear in Court look at the jury and make

an evaluation of them; a juror who has large thighs may be very sympathetic to the defendant

WARNING

• When field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable. In an extensive study, the NHTSA evaluated field sobriety tests in terms of their utility in determining whether a subject’s blood-alcohol tests are an effective means of detecting legal intoxication “only when:– The tests are administered in the prescribed, standardized

manner– The standardized clues are used to assess the suspect’s

performance– The standardized criteria are employed to interpret that

performance”

NHTSA WARNS

• National Highway Traffic Safety Adm., U.S. Dept. of Transp., HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), at VIII-3. According to the NHSTA, “if any one of the standardized field sobriety test elements is changed, the validity is comprised.”

IT STARTS HERE

• Experts in the area of drunk driving apprehension, prosecution, and defense all appear to agree that the reliability of field sobriety test results does indeed turn upon the degree to which police comply with standardized testing procedures

Tips for Cross-Examining Police Officers

• Know your report. You can expect that the defense attorney will know your report better than you.

• Don’t look at the report 10 minutes prior to testifying.

• Remember testifying is your time to show the jury that you are a professional, have special training, that you have been fair and accurate.

TIMING IS EVERYTHING

• Defense attorneys will not cross-examine you in chronological order. Be prepared for this. This is done to keep you off balance.

• Be polite and answer the defense attorney in the same mannerisms as when answering the prosecuting attorney

• Do not become combative

• Do not lose your temper

LET’S BE FRIENDLY

• Answer questions in the same demeanor as when the prosecutor asked them (did you look at the prosecutor or the jury when you answered questions?)

• Do you remember the area in which you tested the individual?– Sloped– Weather conditions– Traffic near by

• Best location is your headquarters or the county jail

YES IS A GOOD ANSWER

• Do not over-exaggerate your knowledge or experience in regards to field sobriety testing– Defense attorney will attack that you do not understand the

reason(s) behind the test– Will attack possible other reasons for poor performance

• Allergies• Illnesses• Physical conditions• Blood shot eyes• Alcohol consumption• Smoky bar• Fatigue• Medical reasons

Odor of Alcohol

• A more experienced officer will state that he detected an odor of alcoholic beverage coming from the person and will avoid that he/she detected the odor of alcohol– Alcohol itself is virtually odorless. The aroma

associated with alcohol is the flavoring that gives the beverage its taste (near beer vs. real beer).

– The odor of alcohol does not provide any information as to the amount of alcohol or to the level of intoxication

Cross Examination of an Officer

• Q: You have indicated that the defendant had an odor of alcohol about her?

• A: Yes, a strong odor of alcohol.• Q: Could you tell us by the odor of alcohol what

time the defendant started to have something to drink?

• A: No.• Q: Could you tell us what time he/she finished

having something to drink?• A: No.

• Q: Based upon the odor of alcohol, could you per chance tell the jury and myself how much the defendant had to drink?

• A: No.• Q: Well, since you stated that there was a strong

odor of alcohol, you can at least tell us what type of drink the defendant had been drinking, can’t you?

• A: Probably not.• Q: So based upon the odor of alcohol about

him/her you cannot even tell if she had some wine, a beer, or a mixed drink?

• A: True. But I still detected the odor of alcohol.

• 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?

• A: Yes.

Slurred Speech

• Was your onboard camera working?

• Audio?

• Defense attorneys will question as to prior contact with the defendant and any knowledge of his speaking pattern.

• Was the defendant able to answer your questions AND follow instructions during the FST investigation?

Drugs/Flushed Face

• This factor is an open door for defense attorneys in regards to following: sunburn, normal redness when people become nervous, angry, or afraid and also fatigue.

Walk the Line

• This test is the best of the 3 for the jury: the reason is jurors presume the test is valid as they understand it and have seen it many times on TV

Defense Tactics

• Cross-contamination dynamic method of cross-examination (i.e. focus on what the defendant did right and not wrong)– Merely means the defense attorney will focus

on all the positive or correct things the defendant was able to achieve during this test.

Example:• Q: The first thing you had the defendant do is put her left

foot on the line?• A: Yes.• Q: And then you had her put her right foot on the line?• A: Yes.• 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?• A: Yes.• Q: How long did you keep her standing in this position?• A: I kept her there for only about 5 to 10 seconds.• Q: And this was the time period during which you gave

her the instructions for the rest of the exercise?• A: Yes.

• Q: Did she keep her feet in the correct position while you gave her the instructions?

• A: Yes.• Q: She maintained her hands at her side?

A: She did.• Q: Other instructions for the exercise required her to take nine

heel-to-toe steps around by using a series of small steps to get around?

• A: Yes. • Q: Does she get to take notes like the jurors are doing when

she is being given the instructions?• A: No.• Q: She was cooperative with you?• A: She was cooperative with me during my entire investigation.

• Q: There are still more instructions for this exercise aren’t there?

• A: Yes, there are more instructions.• Q: You also told her to count out loud for each step she

took?• A: Yes, that’s correct.• Q: And she didn’t forget to do that during the test, did

she?• A: No, she did not.• Q: The only thing she did not do correctly, in your

opinion, is that on four occasions' she stepped off the line a couple of inches, in three instances she didn’t touch her heel to toe, and once she raised her hands up?

• A: Yes

• These questions and answers show that the defense attorney is trying to minimize or to reduce the harmful results of the test. This minimization focus is on what the defendant was able to perform correctly as opposed to your testimony of the clues and the final opinion of a failure to perform the test.

• If you don’t like the test results change the grading system

Final Grade

• You say a failure is 4 clues; the defense attorney says 4 clues is a grade of an A.

How to Defend Field Sobriety Tests

• Investigate the scene• Promote NHTSA information research that went into

developing the field sobriety tests• Use the word clues instead of mistakes; this sounds

more scientific. It gives a clue as to what the evidence is for this crime. Jurors love clues.

• Promote the officer’s training– Make sure the jury knows the officer did not just receive training

at the law enforcement academy but also in the field

• The number of personal investigations of intoxicated individuals including public intoxication and OWI investigation

Pre-Trial Prep

• Review instructions on field sobriety tests with the officer• Make sure he/she follows the proper training and

procedure for using FST • Is there a second officer testifying? Did the second

officer observe this?– If the second officer didn’t-- make sure the jury is informed and

understands the officer is present only for safety and not necessary to supervise or observe the actual testing

• Control traffic• Assist with search of vehicle• Arrange for the vehicle to be towed

Depersonalize the Case

• Do not personalize the defendant by calling the defendant by his or her actual name. Use the term defendant as this helps the jury think of this case as a file more than as a real person standing trial in front of them.

Other Tricks for Defense Attorneys

• One legged stand– Once again if I don’t like the testimony of the

officer I’ll change the way it’s scored

What do you have when you take one leg away from a person?

– A handicapped person; the defense attorney should have attempted to persuade jurors that the one legged stand test is handicapping the defendant.

No one has to walk the line or do a one legged

stand to get a drivers license

– FST are meant to require a person to perform physical duties while following instructions

Valuable Field Sobriety Tests

1. Enable an officer to develop probable cause for the stop of the arrest

2. Assist in establishing possible physical and mental impairment

3. Establish the general causal relationship between alcohol and driving behavior (i.e. probable cause for the stop)

4. Emphasize FST’s are a tool that the officers use to form a total opinion of probable cause in order to request further testing and the implied consent