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What are some of the things an ofﬁcer
might say leads him to think a person is
under the inﬂuence?
PROBLEMS WITH SFSTS
HGN 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NOT PEER REVIEWED!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 CASES
DISTINGUISH THE PER SE/COMMON LAW CASE
LOOK FOR PRIOR FAMILY NEGATIVE INTERACTION
DON’T LOOK FOR PERFECT JUROR - LOOK TO
ELIMINATE ATTILA THE HUN
HOW DOES THE STATE
PROVE A DUI?
4 TYPES OF WITNESSES
CROSSING STATE TROOPERS
them out of uniform (no guns in courtroom)
have universal standard of training (get training records and
can be impeached by other troopers (if you know how to
ask them questions)
SFST Manual isn’t just
is called “DWI
Detection and SFST”
information in the manual
is EVERYTHING a police
ofﬁcer learns about DUI
this isn’t First DUI arrest – ofﬁcer knows what A44 is expecting him to report, so he only
looks for those things
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
cross examine in order of arrest. Close with all the behavior which was not indicative of
• 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
the A44 and Narrative. Make sure the “clues” match up - check directions on
street for sloppy police work.
the Weather conditions/time of day (Bias of Ofﬁcer)
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
the Ofﬁcer often pulls people over at night and sees bloodshot eyes etc. so he is
predisposed to DUI.
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.)
to interview them before trial - certiﬁed letter
the Field Tests for them
BREAKING DOWN THE
WALK AND TURN
Every Little thing becomes something important
player - For their team
the state what to ask him and what NOT to ask
wants to “explain” on cross examination
in demeanor - appears to be unbiased
• Short, Single
front, get him to agree to answer Yes or No
if it can be answered “Yes” or “No”
Question and rephrase
up your hand to stop him
Judge to Instruct him to answer just your question
him if answer is “yes” or “no”
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
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!
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 the Draeger Machine Processes a Sample
FOR A BREATH TEST TO BE VALID YOU MUST BE SURE
100% Alveolar Air
2100:1 or above
No dentures/foreign substances
No mouth alcohol
No interfering substances
Who has the responsibility to fix potholes? Not ME!
GOOD THEME =
HE JUMPED TO A FAULTY
BAD THEME =
JUDGES/JURIES WANT TO
BELIEVE COPS ARE GOOD
PEOPLE AND GOT IT RIGHT