Five Steps to Prepare Your Jury For Field Sobriety Tests

In order to present an effective drunk driving defense, the criminal defense attorney must set up his theories during jury selection. In a breath test refusal case this means showing prospective jurors the flaws in field sobriety testing during voir dire. The most effective way to do this is to allow the jurors to reach the conclusions you want them to through your questioning.

STEP ONE: Define the terms. From the DWI defense perspective, they are not field sobriety tests, they are police coordination exercises or balancing exercises or calisthenics. Allowing the prosecutor to define the terms means you are validating those terms to the jurors.

It’s not the Horizontal Gaze Nystagmus Test, it’s the Pen and Eye Test. It’s not nystagmus, it’s eye-twitching.

STEP TWO: Impeaching the police officer. The officer who administered the coordination exercises will likely testify that the tests are designed to indicate whether a motorist has lost the use of his or her physical faculties. He will testify that the positions he puts a suspected drunk driver in are not too far removed from what we would consider normal.

Common sense tells us otherwise, however. Ask the jurors during voir dire if a person has better balance standing with his feet close together or standing with his feet shoulder-width apart. The jurors will choose the latter. Ask the jurors whether a person has better balance standing with his head tilted back and his eyes closed or looking straight ahead. Again, the jurors will choose the latter. Thus, when the officer testifies that it doesn’t matter how the person stands, the jurors will know that the officer either is lying or ignorant.

STEP THREE: The tests are designed for failure. The key to showing the panel how the tests are designed for motorists to fail is to let the jurors make that discovery on their own. You do this by laying out the argument but never actually making the argument itself.

To set it up, tell the jurors that they have been chosen to create a series of tests to make people look uncoordinated or unbalanced. Most of this step involves going into more detail on the things motorists are asked to do during the coordination exercises. I like to start off asking the first panelist if she would have a person stand with their feet close together or shoulder-width apart (note that this also helps to accomplish our goal in Step Two). If the juror says close together, I will ask the next panelist if she agrees. If she does I’ll ask the next juror why.

I’ll then cover walking with your heels and toes touching versus taking natural steps and walking with your arms pinned down to your sides versus swinging them. When conducting the inquiry in this manner, the jurors are making the conclusions and finding the reasons behind them on their own. By having the jurors “discover” the ways in which the exercises are designed for failure the jurors are much more likely to claim the notion as their own than if you had lectured them on the topic.

This line of questioning allows you to address the problems associated with the Pen and Eye Test, the Walk and Turn, the Romberg and the One Leg Stand.

STEP FOUR: Attack the scoring. All of these exercises present many motorists with plenty of opportunity to fail. However, the scoring system is flawed as it neglects to take into account with the driver did right. For example, a person will take a total of 18 steps in the Walk and Turn. On each of those steps the person has to touch heel to toe, keep his arms down, stay on the line and not stop. While the officer is taught to look for just one misstep, you need to point out to the jury the number of things the driver got right.

To do this, ask the jurors if they think it would be fair for a teacher to give an exam without telling the students how the exam would be graded. Ask them if they think it would be fair for the teacher to flunk a student who got over 80% of the questions right.

STEP FIVE: What is normal? The issue in a refusal case is often whether or not the driver lost the normal use of his or her mental or physical faculties. What the exercises don’t measure, however, is what the driver’s normal physical abilities are. I like to use shoe sizes as an example of what average means.

Tell the first third of the panel that they all wear size 8 shoes. The second third all wear size 9 shoes and the final third all wear size 10 shoes. Now point out that the average shoe size (based on this example) is size 9. Now ask the panelists in the first third how the size 9 shoes would fit on their feet. Then ask the panelists in the final third how the size 9 shoes would fit on their feet. The jurors will quickly learn that average does not equate to normal.

By handling these issues in voir dire you have set your jury up for your cross examination of the officer who administered the coordination exercises. The jury would have already determined whether the exercises were fair and, if your client performed well, it could mean the difference between an acquittal and a conviction.

If you’ve been wrongly arrested for DWI, you need an experienced DWI attorney to defend your rights and restore your reputation.