There are certain boring yet inevitable questions that often begin an examination of a police officer in a DWI (by a prosecutor) or an administrative license revocation ALR case (by a defense attorney):

  • State your name for the record please…
  • You’re employed by Austin Police Department?
  • Any prior law enforcement experience?

 A defense lawyer usually wants to know how many arrests a particular officer has made for DWI and how long he has been a peace officer at all. The theory is that the fewer arrests he has made or the shorter period time he has been doing this, the more likely it is that his opinion that the client was intoxicated is suspect.


And while the defense lawyer might not bring out the possible experience of an officer at jury trial if it is extensive – that is, if the prosecutor hasn’t done that already – there’s sort of a no harm/no foul rule when it comes to asking questions at an ALR. After all, the odds are stacked against you, there’s no reasonable doubt to rely on, and in a refusal case DPS doesn’t even carry the burden of proving that your client was actually intoxicated – simply that he was properly offered a breath test and refused.


Basically, if you’re going to win or lose the driver’s license hearing it won’t often be because of that painful one-question-too-many moment. At any rate, most ALRs by defense attorneys start with these type of pro forma questions.


So as I’m taking a break in the back of the room this afternoon waiting for my client’s ALR to start (brushing up on some top notch possible avenues of cross examination like “Are there any reasons someone might be asleep at the wheel other than intoxication?”) I hear the defense lawyer ask, “How long have you been a certified peace officer?…”


At which point – I am not making this up – the baby faced officer… looks at his watch.


OK, so he replies, “10 months” and I assume that his watch is one of those that has the month on it – but it still made me inwardly chuckle about how that might have looked to a jury.

The Austin Criminal Defense Lawyers’ listserv was filled with replies and answers recently when someone inquired about the best way to make an offer of proof. As these things often do, there was a tangential question asked: “Anyone aware whether the Judge can require that an offer of proof be made after he goes on break?”

I’d never seen it done in county or district court, but it reminded me that it had happened in an ALR. I replied:

Some ALJs do it.

I had an Administrative Law Judge try to leave the room once – after dismissing the live in person officer/witness that could have just answered the one and only question that had been objected to, and sustained – while he finally allowed me to make an offer of proof.  (There’s only a tape recorder, not a real live court reporter of course in ALRs.)  I’m pretty sure he quoted me chapter and verse on why he was allowed to leave, or it was better for him to leave the room, or something.

I managed to get out "I anticipate that Officer So-and-So would have testified that the marijuana was found in the glove compartment" (which was almost all I wanted to ask on the subject) and concluded the offer of proof before the judge was able to storm out of the room.  Unfortunately for him, although he wanted to make a point to me about how unimportant and/or irrelevant my offer of proof was, he had spent enough time lecturing me on the subject of "No appeal court will overturn my ruling" that I was able to get the Q&A in before he reached the door.

In my own defense, I still think it’s relevant to the issue of intoxication – and even the officer’s determination of probable cause to believe DWI blah blah blah – that the connection or nexus between the defendant and the marijuana was remote.  (And, to be fair, in his defense, the standards on appeal for ALRs are so ridiculous that he was right about the chances of appellate success – we didn’t even bother appealing it.)

To put it in context, my client had been charged with both possession of marijuana and DWI. In an ALR hearing, DPS is required to ‘prove’ that the officer had probable cause to believe that my client was intoxicated. Since the state can charge you with being impaired on either substance, or a combination of the two, the officer’s belief about my client’s ‘marijuana intoxication’ was at least marginally relevant.

Looking back on it, I think both the judge and the lawyer (yes, that was me) were being somewhat childish. After my email to the listserv, another attorney ribbed me about bothering to go through the offer of proof motions in the first place. I texted him back:

Yeah, basically I was RIGHT and the judge was wrong and I tried to tell him why it WAS relevant, and he wouldn’t listen so I wanted him to have to listen to the answers, then it would become clear that I was right, but then he wanted to take his basketball and go home and leave the room, but I beat him to the punch by getting it out before he could leave.

I can be very mature.

Still, you’ve got to let judges know you know how to preserve the record for appeal, even if there’s not going to be one. They may give you a little more latitude in the future with your questions.

And since one of the primary purposes of ALR is to depose the witness for the upcoming DWI case, the more questions you are allowed, the better.

I might have been able to go a little further, if allowed, and elicited testimony that the officer couldn’t or didn’t know whether my client knew about the marijuana in the glove box. Which certainly would have been useful for the possession charge.

I didn’t have a good faith basis for including that in the offer of proof; and it would only have done me good if I had gotten the officer’s sworn testimony under oath. My Q&A in an offer of proof would not have been admissible of course in the criminal trial.

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.]

I was waiting in Travis County Court #7 this morning to talk to the judge about a post conviction occupational driver’s license. Meanwhile, a pretrial motion to suppress had already started.

From what I could gather, the officer had seen a car pulled off on the side of the road. The defense attorney was doing a good job pointing out through cross examination that no traffic violations had been witnessed.

Apparently, the State was attempting to justify the initial detention through the ‘community caretaking’ exception. Community caretaking is shorthand for the legal concept in Texas that the police can legally detain you ‘for your own good’. Of course, since it’s only litigated in the criminal context, that means they ended up arresting you for one thing or another, so how much good it ended up doing you is questionable at best.

So the officer had pulled over ‘to investigate,’ I suppose, but I had missed that part of the testimony, when this little gem came up:

  • Defense attorney: Was there anything unsafe about stopping in that neighborhood?
  • Officer: Well, any area in Austin can be unsafe.
  • Defense attorney: Do you consider that to be a high crime area?
  • Officer: All areas in Austin can be ‘high crime’.

Exactly! There’s no place in Austin, in Texas, or really in the world that an officer can’t characterize as “could be a high crime neighborhood’.

So, when an arresting officer testifies that “part of the reason I detained him was to investigate due to it being a high crime area,’ appellate courts need to stop pretending that adds any logical or legal basis for a stop or a detention. Is this really how low we want our standards to sink?

Like most of the affronts to our constitution, no one cares about this sort of erosion of civil rights… until they are arrested for DWI…

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.

Surfing the blogosphere I run across a post entitled “Examination Blanking Out” by Razeet:

Test anxiety is normal and can even help us function well in testing situations. The problem develops when the level of nervousness is so high that it interferes with what one is there to do.

As a result, with two people taking the exact same test, one might be calm, cool and collected, while the other is a pile of perspiration and blanking out.

Now, his post doesn’t have anything to do with Field Sobriety Tests; more likely he’s talking about studying all semester, and cramming for an exam, and still not doing well.

But DWI lawyers should remember that this phenomenon, that ‘some folks do better than others on tests’, and for a variety of reasons, is a well known fact. Indeed, it should be the theme of most DWI breath test refusal trials: starting in jury selection, bolstered by the arresting officer’s own testimony, and repeated in closing.

A series of questions I use at the ALR hearing to set this defense up goes something like this (answers left out – I don’t really care if the officer disagrees):

  • Officer, you agree that folks in the general public vary greatly in their ability to perform physical tasks?
  • Some people are gifted athletes, and some people are super klutzy?
  • Most people are somewhere in between?
  • Like most characteristics, there’s probably a bell curve of natural physical abilities?
  • And you’d never met my client before that night?
  • And you don’t know where on that bell curve he might fall?
  • He might be an Olympic athlete, or he might be uncoordinated, you just don’t know?

I say I don’t care what the officer answers, because a jury will know that the truthful answer to all these questions is ‘Yes’. If an officer disagrees, or ‘weasels’ on one of these basic truths, you may even be better off. You can certainly argue that he graded too hard in his evaluation of your client.

The basic point is this: everyone knows that ‘some folks do better than others’ on all types of tests…including DWI field sobriety tests.

The primary student manual “DWI Detection and Standardized Field Sobriety Testing” published in February 2006 by NHTSA spends less than half a page on its subsection “Visual Detection of DWI Motorcyclists”. It’s in Chapter 5, Phase One “Vehicle in Motion” immediately after the section on visual cue descriptions for auto motorists.

However, in March of 2005 NHTSA published a brochure on the subject entitled “The Detection of DWI Motorcyclists”.

From both sources, the list of driving cues that officers are trained to look for in Motorcycle DWI/DUI cases are listed as either excellent (above 50% chance) or good (30-50% chance):

Excellent Cues

  • Drifting during turn or curve
  • Trouble with dismount
  • Trouble with balance at stop
  • Turning problems
  • Inattentive to surroundings
  • Inappropriate or unusual behavior
  • Weaving

Good Cues

  • Erratic movements while going straight
  • Operating without lights at night
  • Recklessness
  • Following too closely
  • Running stop light or sign
  • Evasion
  • Wrong way

Good fodder for DWI lawyers in motorcycle cases where the defendant is stopped ‘only’ for speeding (which is pretty common)…page 5 of the brochure:

Motorcyclists stopped for excessive speed are likely to be driving while intoxicated only about 10 percent of the time (i.e., 10 times out of 100 stops for speeding). But because motorcyclists tend to travel in excess of posted speed limits, speeding is associated with a large portion of all motorcycle DWI arrests.

In other words, while only a small proportion of speeding motorcyclists are likely to be considered DWI, the large number of motorcyclists who are speeding results in a large number of DWIs, despite the relatively small probability.

In cross examination, this can be used if the stopping officer testifies that speeding is a sign of intoxication (which belies the common sense of the jury as well).

Also, the officer should be crossed on all the things your client did right: no drifting, no trouble dismounting, etc.

DWI lawyers should consider asking the officer whether the dismount itself is a useful sobriety test. Many officers will openly scoff at the notion…that’s fine. Prod him to insist that only the NHTSA field sobriety tests are appropriate for evaluating the likeliness of intoxication or impairment.

Then have him read this paragraph from pp7-8 from the NHTSA brochure:

Trouble with Dismount

Parking and dismounting a motorcycle can be a useful field sobriety test. The motorcyclist must turn off the engine and locate and deploy the kickstand. The operator must then balance his or her weight on one foot while swinging the other foot to dismount. But first, the operator must decide upon a safe place to stop the bike. Problems with any step in this sequence can be evidence of alcohol impairment.

And having absolutely no trouble with the dismount is at least some evidence of a lack of impairment, correct Officer? (Doesn’t matter how he answers; the jury gets the point.)

Texas law allows a person arrested for DWI to request an ALR hearing “in person” or “by phone”. Is it better to conduct an administrative license revocation hearing live/in person or by telephone?

The best practice is to request a conduct a live/in person hearing. Honestly, I can think of no exceptions to this rule.

There are two main reasons to have a hearing: (1) to keep your client’s license from being suspended in the first place, and (2) to gain an opportunity to cross examine the stopping and arresting officers without the criminal prosecutors present.

A substantial portion of ALR wins comes by default; that is, one of the requested and necessary witnesses fails to show up. Allowing DPS to proceed telephonically greatly increases the chances that an officer will be available. Obviously, it’s much easier for a police officer to literally “phone in” his appearance, than it is to come down to court and testify in person.

But even in cases where you know the witness will show up, it is still the best practice to conduct a live cross examination. 

Sometimes a client comes to see me the day or so after their arrest, and I almost immediately know by looking at their paperwork that the officer will show up at the ALR hearing. For example, the officers on the Austin DWI Task Force are known for always appearing. I have personally cross-examined most of them more than 20, 30, and sometimes 40 times.

But, again, it’s still better to request that the hearing be conducted in person rather than over the phone.

Reason #2 for having the hearing in the first place is seriously compromised when a DWI lawyer decides to just “stay in his office” and “do it on the phone”.

One of my jobs at an ALR hearing is to evaluate the strength of the State’s case against my client. The officer’s demeanor, appearance, and overall savvy on the stand can not be effectively gauged over the phone. On many occasions, what I initially suspected was a difficult case for my client to win becomes much better after the ALR. The truth is that some folks make better witnesses than others even if the substance of their testimony is identical.

Cross-examination is at least as much art as science, and only a face to face meeting between the DWI lawyer and the arresting officer will accurately reflect what that same testimony will sound like at trial.

The NHTSA DWI Detection and Standardized Field Sobriety Testing Manual has a chapter devoted to “DWI Detection Phase One: Vehicle in Motion”. A list of 24 driving cues which “police officers may use to detect nighttime impaired drivers” is the meat of the chapter.

These same 24 cues are also listed in NHTSA’s booklet “The Visual Detection of DWI Motorists”. The chapter in the manual breaks these driving behaviors, most of which but not all are traffic violations, into four separate categories:

  1. Problems Maintaining Proper Lane Position
  2. Speed and Braking Problems
  3. Vigilance Problems
  4. Judgment Problems

The second part of Phase One: Vehicle in Motion is entitled “The Stopping Sequence”. In it, the officer is told to look for how the vehicle responds to the signal to stop (which will almost always be the activation of police overheads). Cues include:

  1. an attempt to flee
  2. no response
  3. slow response
  4. an abrupt swerve
  5. sudden stop, and
  6. striking the curb or another object

In most cases, while my client will probably be spotted initially committing a traffic violation, which may be included in the first 24 driving behaviors, the vast majority of times they exhibit none of the stopping sequence cues.

Absence of these cues, of course, does not prove the absence of intoxication. But, the defense is not required to prove innocence. Secondly, pointing out that all of these behaviors commonly associated with the typical intoxicated driver do not apply to my client can be useful for cross examination of the stopping officer.

[For those interested, The Visual Detection of DWI Motorists is available free of charge in booklet form upon request to: National Highway Traffic Safety Administration – Impaired Driver Division, 400 Seventh Street, SW., Room 5118, Washington D.C., 20590.]

One of the purposes of allowing cross examination of witnesses is the idea of confronting your accuser. The theory is that the credibility and sincerity of a witness accusing you is best tested by live cross examination.

A few days ago, while sitting in court waiting for my client’s driver’s license suspension hearing to start, I watched an attorney conduct his cross of the officer who administered field sobriety tests to his client. The lawyer had a list of well prepared questions written out, which he then asked of the officer, one by one. Unfortunately, the method he used was basically to have his head down the entire time, reading the questions off of his legal pad.

When the lawyer got to the part about how the officer administered the HGN test, he had a pretty good line of questions he asked, such as:

            How long did you hold the stimulus at maximum deviation?

            How did you measure nystagmus prior to 45 degrees?

            How many total passes did you make during the HGN?

What the lawyer missed, by burying his head in his notes, was that the officer actually pulled a small “cheat sheet” out of his pocket, which gave him all the “correct” answers to these questions. These apparently weren’t notes from this particular arrest (trust me, no officer would make those sorts of detailed notes on every arrest), but just genereal guideline answers.

Not surprisingly, the officer got all of the questions right. But he was just reading his own pre-prepared notes, probably jotted down right of the NHTSA field sobriety test manual itself.

If the attorney had noticed this, he could easily have asked the officer to testify from his own memory of the event, or at least noted for the record that the officer was reading his answers from a sheet. Because he wasn’t paying attention to the witness, he missed this entirely.

One of the reasons I ask for driver’s license hearings in every DWI case is that it gives me the opportunity to cross examine the stopping and arresting officers. Several times, in cases that otherwise seemed somewhat hopeless, I have found out things about a DWI case that are extremely helpful. One of these things can be as simple as… the officer makes a really poor witness.

Complete and thorough preparation for cross examination is essential, but don’t forget to watch the witness testify. Evaluate his demeanor, and always ask yourself this: “Would this police officer make a good witness in front of a jury?”