Several years back I took the same class that police officers take to become certified to administer the Field Sobriety Tests. It’s not an impressive feat; I just did it to learn more about DWI defense.

The class was taught by Troy Walden and Lance Platt, two ex-police officers who, then and now, specialize in helping lawyers defend DWIs in Texas. It used the same manuals, and they themselves were certified Instructors, so it was pretty much identical in every aspect. (I’m tempted to say the students probably paid more attention than some officers do, but I can’t scientifically prove it.)

 

The three day class even included the part where we the students administer tests to some subjects before and after drinking. That’s right. They bring them in with nothing to drink. All subjects get the HGN, Walk and Turn, One Leg Stand. Then, while the students go on to some other rigorous examination of FSTs, the subjects sit at a bar and get dosed with alcohol.

 

In other words, someone sits there and buys them drinks. Then they come back and do the tests all over again.

 

I was reminded of this experience when my longtime friend and office mate, as well as fellow Austin DWI lawyer Lance Stott wrote this post about his experience as a guinea pig:

 

My role, difficult as it was, was to be a test subject, get drunk, and then take the tests again.  It was a tough job, but somebody had to do it.

 

I’m a little bit clumsy by nature.  I didn’t listen to the instructions all that well, and performing the tests in front a group of people gave me a case of nervers.  Long story short: I bombed.

 

I took the wrong number of steps, started before I was instructed to, did the turn improperly, and I think I stepped off the line, as well.  There are 8 clues on the walk and turn, and I think I got them all.

 

I was there. On the second day of class they had asked if any of us could bring in our friends to be subjects, so I asked Lance if he wanted to come, and he agreed. So I designated-ly drove him to and from the class. (Another lawyer brought a friend from one of Austin’s local “bars”; she scored terribly on the tests before and after.)

 

I don’t remember whether he got all eight clues, but I do remember he did terribly on the first – i.e. sober – attempt. I specifically remember him getting the number of steps wrong, even though I knew he knew it’s called the nine step walk and turn.

 

As an aside, I also remember that someone, not Lance, had natural nystagmus in one eye. Everyone ooohed and aaaahed, as that poor guy got HGN’d to within an inch of his life. Everyone had to see it.

 

Police officers, when asked about natural nystagmus, will pooh pooh it in that tone of voice that let’s you know only about ten people on earth probably have natural nystagmus, and all of them know it and will announce that before they have the HGN administered to them. Apparently one of the ten just randomly made it into our class. And, no, he had no idea he had visible nystagmus at all times in one eye. But I digress.

 

Back to Stott. How did he do after the trip to the bar?

 

The second time around, I did much better. I began when I was supposed to.  I took the right number of steps.  I touched heel to toe, and I even did the turn more or less the way you’re supposed to.  (By the way, nobody ever does the turn right.)

 

What happened?  Well, after my trip to the bar, I wasn’t the least bit nervous anymore.  More importantly, this was my second time around.  I’d had a bit of practice, and this time I knew what they were looking for.

 

Right again. That’s exactly how it happened. I was the witness. I don’t remember the second time around HGN results for him, but other than that, I think he got zero out of eight clues on the Walk and Turn, and either zero or one clue – a passing score – on the One Leg Stand after being dosed with alcohol.

 

Go figure.

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.]

Prosecutor Western Justice has an amusing – so amusing it’s possibly fake? – video up on his website from a DWI arrest. Basically, it’s the falling over type.

WJ introduces the video with this thought:

Defense attorneys always make a big deal that the walk and turn test is on an imaginary line! (gasp). Well, even though it really does not matter if it is an imaginary line or an actual line, here is another reason why some police officers use an imaginary line.

Well, yes, defense attorneys do ‘make a big deal’ about that, and let’s talk about why.

Police officers come into court and testify that attending a Field Sobriety Testing course taught by another police officer makes them an expert in DWI, and juries generally believe them.

In return, DWI lawyers ask jurors to believe the manual from the training the officer received. Seems like a fair bargain.

One common misconception that I see over and over on the part of officers, up to and including some of the local Austin DWI task force officers, is the belief that book doesn’t require that a designated actual line be used.

If asked why the defendant was asked to walk an imaginary line instead of an actual line, most officers reply – some smugly – that ‘the manual’, that is the NHTSA manual, doesn’t require it. Some offer to show the defense lawyer exactly where in the book it says they don’t have to use an actual line.

Invariably, the officer will flip the pages and find this portion of the manual:

Procedures for Walk and Turn Testing

1. Instructions Stage: Initial Positioning and Verbal Instructions

For standardization in the performance of this test, have the suspect assume the heel-to-toe stance by giving the following verbal instructions, accompanied by demonstrations:

“Place your left foot on the line” (real or imaginary). Demonstrate.

[I’m taking this from the February 2006 Edition, Student Manual, page VIII-9 from Session VIII: Concepts and Principles of the Standardized Field Sobriety Tests. It should be in Chapter 8 of most or all other manuals.]

That certainly looks at first blush as if the manual says there’s no difference between the difficulty between walking an actual line, or walking an imaginary line. Although, it literally begs the question, “Officer, how wide a line did my client imagine?”

But no. The officer who so testifies is wrong. (Sorry, WJ, you’re wrong too.)

Flip the page once more – VIII-11 in the one I’m reading now – and you come to the part entitled:

4. Test Conditions

Walk-and-Turn test [sic] requires a designated straight line, and should be conducted on a reasonable dry, hard, level, nonslippery surface.

Requires. So, how to explain the seeming discrepancy? Easy.

The first section is talking about “Verbal Instructions” and is clearly labeled so. It is the Instructions Stage. That means… it is talking about the portion of the test where the officer demonstrates the Walk and Turn to the suspect.

So, going by the book, it’s perfectly OK for the officer to show the defendant how to do the test on his own imaginary line if he wants to do it that way. Heck, we all know they don’t even have to demonstrate all 9 steps. They are allowed to do it that way.

But the NHTSA Manual makes no bones about it: if this test is going to be administered properly, then the defendant is supposed to be afforded the opportunity to do it on an actual line. It is literally: required. And yes, that’s a potentially reasonable explanation for someone stepping ‘off the line’ – it wasn’t there in the first place.

Perhaps WJ’s point was that sometimes the defendant is so obviously impaired that it wouldn’t make any difference whether there was an actual line or not. And yes, I have represented more of my fair share of those types of cases.

But as for defense lawyers insisting that their DWI clients be graded properly… I don’t see anything wrong with that.

I usually don’t pile on when a celebrity as arrested and the best way to do that is to not blog about the arrest. And while it’s worth noting that I have no personal knowledge of the facts in this case, nor do I represent the accused, this post is at least nominally in defense of Cedric Benson. (And to further my bona fides on sticking up for Benson, see this post.)

This part of the AP story about Cedric Benson’s arrest for Boating While Intoxicated in Austin jumped out at me:

According to a sergeant from the Travis County Sheriff’s office, Benson, who played at the University of Texas in Austin, was arrested by the Lower Colorado River Authority. A LCRA spokesperson said that Benson, who failed a sobriety "float test" (an abbreviated version of a field sobriety test) on the boat, argued over taking a follow-up test on land and refused to put on a life jacket.

So they’re calling it a “float test” now. Never heard that one, but lemme take an educated guess at what they’re talking about.

Prior to taking someone to shore, a law enforcement officer asks the subject – in this case Chicago Bears running back Cedric Benson – to do some tests to prove his sobriety while he is still standing on his boat. While it’s on the water. Moving around. Waves underneath the boat.

Once the subject is unable to prove to the officer’s satisfaction that he isn’t intoxicated, he is asked to come ashore and then the standardized field sobriety tests are administered.

Putting aside for the moment that the FSTs are junk science at best to start off with, the officer then testifies in court – because it’s consistent with his training – that a 15 minute waiting period after coming off the boat is sufficient for the subject to regain his land legs, and to do the tests in a manner that puts him on equal footing with someone that hasn’t been out on a lake all day.

This 15 minute time period, as far as I’ve ever been able to tell, is completely made up. There are absolutely no scientific studies to show this. I’ve always suspected that whoever came up with it basically ripped off the idea from the 15 minute observation period required by Texas DPS in a breath test case.

One last note: I’m not saying that Cedric Benson is not guilty – I don’t know. Perhaps he was tanked. More likely than not, there was at least evidence that he had consumed some alcohol. But there’s a really big difference between those two, and conducting what the news media, if not the police, are now calling a float test to determine where on that bell curve he was? If it was anything like the boating while intoxicated cases I’ve seen in my career, I wouldn’t put much stock in it.

This question via the internet. (Feel free to email me other questions about Texas DWI laws.)

Well, let me change the way the question is phrased. It’s a standard question I hear, but from those who have already been arrested and charged with DWI. Invariably, it comes from someone who took the standardized fields sobriety tests (SFSTs), and more likely than not, is let’s say ‘nervous’ that they didn’t do so well on them.

In that instance, what the client is really asking his DWI lawyer is, “The police officer didn’t tell me I could refuse to do the tests. Can you get them thrown out / ignored / suppressed?”

No, at least not on that basis. Police are not required in Texas, or anywhere else that I’m aware of, to tell DWI suspects that they may politely refuse. In fact, it’s quite the opposite.

I’ve seen quite a few DWI videotapes from Austin arrests where the officer tries to convince the person out on the scene that they should take the tests, even after they politely refuse. Some of the time the officer pretends to not understand that my client is even exercising their right not to submit to the tests.

Other times, they’ll say “OK, but you don’t know what I’m going to ask you to do… Let me just demonstrate the test for you…”

The ‘demonstration’ of course, includes standing with your feet together, hands at your side, place your right foot in front of your left foot, stay in that position until I tell you to start… in other words: the test has begun before the officer fully demonstrates it.

However, there’s a more important aspect of this question from my perspective. It’s what I call ‘spilt milk’.

If you’ve recently been arrested for DWI, more likely than not, you’re playing the ‘split milk’ game. 

  • If only I had turned right instead of going straight. 
  • If only I had left the bar earlier (later?)
  • If only I had taken a cab. Etc., etc.

There’s no point crying over spilt milk. We’ve got to play the cards we’re dealt, and that’s OK. I tell my clients to give themselves 2 or max 3 more days to beat themselves up over the arrest, and then let’s get on with building our defense.

In Austin, the DWI process takes several months, four to six months usually, sometimes longer. You’ll drive yourself crazy if you play “I should have done this differently” the whole time.

Stephen Gustitis recently commented on a study done at Berkeley that ‘debunk[ed] conventional wisdom on trial witnesses’:

The researchers concluded that self-assured witnesses who make a mistake – even on issues of little importance – undermine their credibility by raising doubts about their competency, their ability to judge their own abilities and their motivations.

"People giving testimony, or advice, or opinions should therefore be careful to express appropriate degrees of confidence in their assertions," the researchers write in a summary of their report in the January issue of the journal Psychological Science. "Otherwise, the 13th stroke of the clock will cast the other 12 in doubt."

I take issue with the title of that article, because I doubt that is the conventional wisdom, at least of those who should know. As Stephen says, the study ‘confrimed what experienced criminal defense lawyers already knew’:

The cocky, arrogant, or over-confident witness builds a wall between themselves and the jury. Since normal, ordinary, and reasonable people know we all make mistakes, the over-confident witness projects an air of superiority which juries tend to resent. Consequently, when the witness is caught in a mistake the jury is quite happy to punish him by greatly devaluing his credibility.

The over-confident witness is often one testifying as an expert, but the problem also affects the lay witness. The experienced defense lawyer preparing these witnesses for court will recognize the problem and take appropriate steps to temper their over-confidence.

100% correct. And this leads me to one of my favorite things about DWI cases. Since DWI is an opinion crime, the arresting officer will find himself caught up in this phenomenon in almost every case.

When it comes to evaluating a defendant’s performance on the field sobriety tests, yes, NHTSA has their ‘standards’, but even the manual doesn’t attempt to suggest that everyone will do perfectly. Or even that all defendants who exhibit X number of clues on the [HGN, Walk and Turn, One Leg Stand, etc.] are intoxicated.

Consequently, when asked in cross examination whether my particular client could have exhibited the clues on videotape, but not be intoxicated, the officer has two choices:

(1)   He can admit it’s possible that things other than intoxication could have caused my client’s ‘errors’ on the test.

(2)   He can express with 100% confidence and certitude that the only reason for my client’s foot coming off the imaginary line is absolute proof of intoxication.

Frankly, I’m fine with either answer. In a lot of cases, I prefer answer #2. Jurors know #2 is wrong wrong wrong; and as the study suggests, it will reduce the juror’s natural tendency to ‘believe what the officer says’.

In fact, seasoned officers know this as well. In my experience, almost all of the Austin DWI Task Force officers will testify either at pretrial or at the ALR hearing that the tests are not 100% accurate, and that factors other than alcohol or intoxication can cause some missteps on the FSTs.

Of course, that’s not really such a bad answer either.

[Also see: Certainty of the Witness.]

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.

Public Defender Dude on “Larry Craig and Police Officer Opinion Testimony”:

One of the areas that has held public fascination in the Larry Craig situation is the vagueness of the charges and allegations against him. Put simply – what did he actually do wrong – tapping a foot and reaching with his hand? He clearly did not break any established and obvious laws by those actions… So what he did had to be interpreted by a police officer as being illegal, because it is not illegal on its face.

This brings up an area that I’ve so often railed against – police officer opinion testimony (or, as I like to put it, "my opinion is that you’re guilty."). I think that this opinion testimony, whether in the context of gangs (giving an opinion that any sundry crime was committed for the benefit of a street gang so as to make minor crimes strikes, or average crimes life sentences), or drugs (giving the opinion that whatever amount of drugs that someone possessed was obviously possessed for purposes of sale), or any other area.

Prosecutors love this stuff. It’s like 2 closing arguments in their case. They get a police officer who gets to get up on the stand and essentially say "I’ve investigated thousands of cases, and in my opinion this person is guilty, because his case falls in with all these other ones in this manner."

It is highly prejudicial, and in many cases, highly meaningless.

It struck me when I read his post that PD Dude is also accurately describing so many officers’ testimony in DWI cases, as it relates to the defendant’s performance on the Field Sobriety Tests.

“In my opinion, he should have done better on these agility tests, and because he didn’t, in my opinion he’s guilty of DWI.”

DWI lawyers must point out that the officer’s opinion doesn’t factor in

  • Initial nervousness for being pulled over for a traffic violation
  • Increased nervousness now that you know you’re being investigated for DWI
  • You might be non-athletic, or perhaps even a klutz
  • Or that Field Sobriety Tests don’t measure a person’s normal abilities to do anything

As PD Dude says, you may just be able to show that the police officer’s opinion is “highly meaningless”.

Police Officers are trained to look for certain ‘common’ signs of intoxication when evaluating a suspect for DWI. Some of these are thought to be so frequently exhibited in DWI cases, that the local police agencies in Austin have pre-printed forms for probable cause affidavits so that they can quickly check off boxes – and, then, presumably, move on to the next arrest.

The Austin Police DWI affidavit form includes checkboxes for:

  • Odor of Alcohol: Strong, Moderate, Faint, None
  • Eyes: Bloodshot, Watery, Glassy, Dilated, Constricted
  • Speech: Mumbled, Slurred, Confused, Not Understandable, Mushmouthed, Stuttered, Fair, Good, Accent, Thick Tongued
  • Balance: Wobbling, Falling, Swaying, Unsure, Needed Support
  • Attitude: Excited, Hilarious, Talkative, Uncooperative, Profanity, Polite, Sleepy, Combative, Indifferent, Cooperative, Insulting, Cocky
  • Walking/Turning: Falling, Swaying, Staggering, Stumbling

Other than “No Odor of Alcohol,” “Fair/Good” speech, and “Polite/Cooperative” attitude, all the others are arguably signs of intoxication. And the more that are checked off, the more the State believes they have a strong case. 

But aren’t there perfectly good reasons why someone could exhibit several or many of these that aren’t reliable indicators of intoxication? Of course.

Some of the reasons other than intoxication include medical conditions, personality traits and physical characteristics/abilities of each individual. I will explore each of these in upcoming posts.

Dr. Greg Kane at Med-Mal Experts has published an excellent 3 part series on the flawed math that NHTSA uses to calculate “accuracy rates” for the Field Sobriety Tests. These papers were originally published in the Colorado Trial Lawyer’s Association magazine Trial Talk, and are now reproduced on Kane’s website “The predictive value of the NHTSA’s Standardized Field Sobriety Tests”.

Ultimately, Kane answers the question that all DWI lawyers need to be asking: What does it really mean when the officer testifies that “failure” of the field sobriety tests means there is a 93% chance that the defendant was intoxicated? How did NHTSA come up with that number…and is it meaningful?

From Kane’s site:

Around the country, DUI defense attorneys form organizations, give seminars and share trial strategies to overcome FST evidence. Prosecutors do the same, from the other direction. The two sides bicker about mechanics. Did the officer follow procedure exactly? Did the officer consider medical conditions that cause incoordination?

What no one does, as far as I can tell, is doubt the NHTSA "validation" contractors’ analysis of what a mechanically meticulous coordination test actually implies about alcohol impairment. The driver failed the FST. No one asks, "Exactly what does that mean?"

I have to admit that he’s right. DWI defense lawyers and prosecutors tend to argue back in forth about whether the officer administered the tests properly. And any good DWI lawyer better know the NHTSA manual back and forth, so that when he watches the videotape of his client on the scene, he can evaluate the officer’s performance as well as his client’s.

But is it possible that we in the DWI defense bar have been missing the forest for the trees? I’ve digested the first paper thoroughly, and frankly, am truly excited about Kane’s work in these areas. As soon as I make it through the next two, I’ll post more on this subject.