What are some of the things an officer might say leads him to think a person is

under the influence?

PROBLEMS WITH SFSTSHGN administered using chin rest but not done in field in first study

Single set of data used to determine criterion score

Tests are not age and gender neutral

In the lab, officers were monitored to confirm accurate administration

Actual results varied by the time of day but scoring did not account for this

The obesity epidemic had not fully hit America

NOT PEER REVIEWED!

WHAT IS NEGATIVE SCORING?

How do we address it? !

Bring it up in Voir Dire!

VOIR DIRE IN DUI CASESDISTINGUISH THE PER SE/COMMON LAW CASE

LOOK FOR PRIOR FAMILY NEGATIVE INTERACTION

DON’T LOOK FOR PERFECT JUROR - LOOK TO

ELIMINATE ATTILA THE HUN

THINGS YOU CAN ASK & THINGS YOU CAN’T

HOW DOES THE STATE PROVE A DUI?

Driving Stop Contact SFST Arrest

4 TYPES OF WITNESSES

State Police

Toxicology Experts

Local Police

Chemical Test

CROSSING STATE TROOPERS

• Get them out of uniform (no guns in courtroom)

• they have universal standard of training (get training records and curriculum)

• they can be impeached by other troopers (if you know how to ask them questions)

• The SFST Manual isn’t just about SFSTs!

• Manual is called “DWI Detection and SFST”

• The information in the manual is EVERYTHING a police officer learns about DUI

•Establish this isn’t First DUI arrest – officer knows what A44 is expecting him to report, so he only looks for those things

•Establish officer didn’t take notes during the SFST administration. “Officer, can you tell me the third question I asked you today?” Trained to remember things, without notes does he remember questions today? Make sure to set him up, though, and remind him how important his testimony is at the beginning, etc.

•Alphabet Test. Ask for validation studies which show the alphabet is an effective test. They were not trained in it at the academy

•Don’t cross examine in order of arrest. Close with all the behavior which was not indicative of alcohol consumption

•Larry Taylor’s ultimate question: Given the clients performance on the Field sobriety tests, if she had taken a Breath Test which gave a 0.00 result, would you have let her drive off?

Officer Jones Supplemental Report

Officer Jones

CROSSING LOCAL POLICE

•Examine the A44 and Narrative. Make sure the “clues” match up - check directions on street for sloppy police work.

•Develop the Weather conditions/time of day (Bias of Officer)

•Develop Physical Condition of Client upon Stop (did you ask him how long he had been sitting in his car? Do you know my client play professional football for the Patriots and has horrible knees?)

•Develop the Officer often pulls people over at night and sees bloodshot eyes etc. so he is predisposed to DUI.

•Establish lack of Independent recollection - only writes down incriminating facts (didn’t the client pull the car over properly, put the car in park, roll down the window, etc.)

!

•No universal training

•Try to interview them before trial - certified letter

•Rescoring the Field Tests for them

BREAKING DOWN THE WALK AND TURN

Every Little thing becomes something important

•Team player - For their team

•Tells the state what to ask him and what NOT to ask him

•Always wants to “explain” on cross examination

•professorial in demeanor - appears to be unbiased

•Short, Single fact questions

•Up front, get him to agree to answer Yes or No

•Ask if it can be answered “Yes” or “No”

•Withdraw Question and rephrase

•Put up your hand to stop him

•Ask Judge to Instruct him to answer just your question

•Ask him if answer is “yes” or “no”

•Sit down and wait, then ask the question again

Powers: Machine Underestimates by 10-12%

Partition ration arbitrarily set at 1:2100 by machine

True definition of 1:2100

The higher the partition number, the lower the BAC

2400-2100=300

300/2400=1/8=12%

Individuality

Articles have seen ranges from 1:900 to 1:3700

those are in people with “underlying pathologies”

Machine is based on 1:2100

ALL DEFENDANTS ARE NOT 1:2100

Results may be accurate if Client is 1:2100

Powers NEVER knows the client’s partition ratio

If you ask no other question: ask him this!

Alveolar Air

Regulation expects Alveolar air to be tested

Powers can’t tell you how long a person has to blow to get to that portion of lung air

(hint: you cannot get just alveolar air....ever)

How Alcohol Gets into the Bloodstream

0.08Gas Solution

1 2

3

4

8

9

6

75

How the Draeger Machine Processes a Sample

100% Alveolar Air Post Absorptive 2100:1 or above

34 degrees No belching

No reflux No dentures/foreign substances

No mouth alcohol No interfering substances

FOR A BREATH TEST TO BE VALID YOU MUST BE SURE

Who has the responsibility to fix potholes? Not ME!

GOOD THEME = HE JUMPED TO A FAULTY

CONCLUSION !

BAD THEME = HE’S WRONG

JUDGES/JURIES WANT TO BELIEVE COPS ARE GOOD

PEOPLE AND GOT IT RIGHT