Nystagmus: Mostly Leave It Alone
Blogging from the Rusty Duncan seminar, and listening to San Antonio DWI lawyer George Scharmen give an excellent presentation on the Field Sobriety Tests yesterday.
One interesting tidbit. Scharmen argued that while of course you must cross the officer about the 6 out of 6 (isn’t it always all 6 clues?) on the Horizontal Gaze Nystagamus, it’s not important to go on and on about it. In fact, it may give it more effect than the jury would otherwise.
Scharmen said – and my notes are skimpy here – he asks about how the officer is only trained by another officer, not a medical professional; impeaches the officer if necessary with the manual where he has made errors in administration, eg. Holding the stimulus for less than 4 seconds at maximum deviation; asks why the results weren’t reproduced for the jury by placing the subject in front of the vehicle to put the HGN on tape, and then…
“I mostly leave it alone”.
[Scharmen asks more than those 3 or 4 questions of course; he’s just saying he deemphasizes it by doing an effective short cross on it where he can.]
Makes sense to me. My experience has been that juries are duly unimpressed with the "pen voodoo" as one juror called it post-trial.
I certainly agree with this strategy. When I've spent too much time crossing on the HGN, the prosecutor always shoved it down my throat. "See how afraid the defendant is of HGN, he spent 30 minutes talking about it."
Why not make DWI a Class C Misd.? Then you wouldnt have to worry about HGN, or imaginary lines. But then you might be out the typical 3K you charge for DWI defense. Keep up the good work
Disgusted:
Just in case it isn't obvious, I'm not the one with the power or ability to classify what offense level DWI is in Texas...
Jamie:
Of course not, the legislature is the only one who can change the offense level of a DWI. Keep on trucking Bro plenty of drunks with good paying jobs to keep DWI Attorneys in business.
Demonstrate to the jury that it's voodoo by asking the arresting officer to perform the same test on 2 test subjects. State to the court and jury that one or both may or may not be at some level of intoxication.
If it were me, both subjects would be stone cold sober but would be wearing "scotch" cologne.