Kevin Smith of Wichita, Kansas writes about his ‘Matlock Moment’ in a recent DWI jury trial.
His client’s situation was familiar to DWI lawyers everywhere. The defendant looked fine when walking, talking, and interacting with the officer except… when it came to doing those Field Sobriety Tests.
To win a DWI case, the defense lawyer must often come up with a plausible explanation of why the client does poorly on the agility tests, other than intoxication or impairment. In Kevin’s case, his female client was wearing 2 inch high heel shoes.
Kevin’s description of the key moment in trial:
The "not guilty" verdict came down to a question.
Before I reveal the question it will help to picture the officer first. He’s about 6’4", roughly 250 lbs. (with a sizable belly to boot), bald, and very tough looking.
So here’s the question: "You probably would have done as bad on the field tests had you also been wearing two-inch high heels, wouldn’t you?"
He responded, "Maybe, but I can’t tell you for sure since I’ve never worn high heels."
Excellent example of distilling the defense case down for the jurors to ‘get it’.
And, it’s an example of that rare type of cross examination question: you don’t know the answer, but you don’t care how the officer responds. He can either – as in this case – answer truthfully, which helps your client; or he can hem and haw and sound unreasonable. I’d almost prefer to hear the officer’s explanation of why high heels wouldn’t affect his performance on the FSTs. The jury will still get the point.
Kevin doesn’t say whether he had the officer read this portion of the NHTSA DWI Manual to the jury:
The original research indicated that individuals over 65 years of age, back, leg or inner ear problems had difficulty performing this test. Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. [DWI Detection and Standardized Field Sobriety Testing, 2006 NHTSA Manual, VIII-11. Emphasis Mine]
Doesn’t sound like this officer offered Kevin’s client the opportunity to take off her shoes, and that can be an important point to put in front of the jury.
Of course, when you get an answer as good for the defense as Kevin got, it may not be necessary.