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Defensive Tactics to OWI Trials/Cross Examination of Arresting Officer. Patrick HarringtonTippecanoe County Prosecutor. 3 Standard Field Sobriety Tests. The Horizontal Gaze Nystagmus (HGN)The Walk and TurnThe One Leg Stand. Standardization is Critical. The tests are administered in the prescribed, standardized mannerThe standardized clues are used to assess the suspect's performanceThe standardized criteria are employed to interpret the performance.
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2. Defensive Tactics to OWI Trials/Cross Examination of Arresting Officer Patrick Harrington
Tippecanoe County Prosecutor
3. 3 Standard Field Sobriety Tests The Horizontal Gaze Nystagmus (HGN)
The Walk and Turn
The One Leg Stand
4. 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
5. 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).
6. 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
7. 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?
8. Types of Nystagmus There are several different types of nystagmus and several causes for nystagmus.
9. Six Muscle Control/Movement of the Eye Superior oblique
Rectus superior
Medial rectus
Lateral rectus
Rectus inferior
Inferior oblique
10. Vestibular Nystagmus Rotational
When the head/body is spinning or rotating
Post rotational
Stopped spinning or rotating
Caloric and positional nystagmus
Inner ear fluid
11. Positional Alcohol Nystagmus Pan I
Pan II
What we are testing for
12. 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
13. Can such things as the flu, strep throat, vertigo, measles, syphilis, arteriosclerosis, muscular-dystrophy, create nystagmus? Yes
14. Can medications create nystagmus? Yes
Lithium
Dilantin
Klonopin
Diazepam
15. 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
16. Congenital Nystagmus A person who has defect in their motor system
17. Fatigue Fatigue exacerbates one component of the Horizontal Gaze Nystagmus test, end-position nystagmus
18. Alcohol Alcohol causes two types of nystagmus
Alcohol gaze nystagmus, which includes Horizontal Gaze Nystagmus
Positional alcohol nystagmus (PANI, PANII)
19. 48 Types of Nystagmus Acquired
Anticipatory (induced)
Arthorokinetic (induced, somatosensory)
Associated (induced, Stransky’s)
Audio kinetic (induced)
Bartel’s (induced)
Brun’s
Centripetal
Cervical (neck torsion, vestibular-basilar artery insufficiency)
Circular/Elliptic, Oblique (alternating windmill, circumduction, diagonal, elliptic, gyratory, oblique, radiary)
20. 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. 21. Induced (provoked)
22. Intermittent Vertical
23. Jerk
24. Latent/Manifest Latent (monocular fixation, unimacular)
25. Lateral Medullary
26. Lid
27. Miner’s (occupational)
28. Muscle-Paretic (Myasthenic)
29. Optokinetic (induced, optomotor, panoramic, railway, sigma)
30. Optokinetic After-Induced (post-optokinetic, reverse post-optokinetic)
22. 31. Pendular (talantropia)
32. Periodic/Aperiodic Alternating
33. Physiologic (end-point, fatigue)
34. Pursuit After-induced
35. Pursuit Defect
36. Pseudo spontaneous
37. Rebound
38. Reflex (Baer’s)
39. See-Saw
40. Somatosensory
23. 41. Spontaneous
42. Stepping Around
43. Torsional
44. Uniocular
45. Upbeat
46. Vertical
47. Vestibular (ageotropic, geotropic, Bechterew’s, Caloric, Compensatory, Electrical/faradic/galvanic, Labyrinthine, Pneumatic/compression, Positional/alcohol, Pseudo caloric)
48. Pan I
Pan II
24. Door No. 1: Angle onset is not a reliable indicator BE sure you know where 45 degrees ends
Protractor
25. 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
26. DANGER AHEAD So can you survive cross-examination where a defense attorney attacks HGN at .06% or more?
27. Fatigue can induce nystagmus at maximum deviation of 50% of the people
Nystagmus persists after BAC levels have fallen to zero
Booker JL
28. 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
29. 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
31. 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
32. Test Procedure: Tell suspect to stand with feet together and arms down at sides
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”
Ask suspects if they understand
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
33. 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”.
34. 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.”
35. 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
36. 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).
37. 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).
39. 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
40. 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.
41. Document the Footwear of the Defendant
42. 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
44. 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”.
45. 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
46. 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”
47. 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.”
48. 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
49. 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.
50. 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
51. 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
52. 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
53. 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
54. 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.
55. 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.
56. 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.
57. 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?
58. 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.
59. 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
60. 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.
61. 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.
62. 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.
63. 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
64. 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.
65. If you don’t like the test results change the grading system
66. Final Grade You say a failure is 4 clues; the defense attorney says 4 clues is a grade of an A.
68. 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
69. 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
70. 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.
71. 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
72. 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.
73. 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
74. Valuable Field Sobriety Tests Enable an officer to develop probable cause for the stop of the arrest
Assist in establishing possible physical and mental impairment
Establish the general causal relationship between alcohol and driving behavior (i.e. probable cause for the stop)
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