Author of "The DUI Answer Book" A Citizen's Guide to Understanding Your Rights

Blow Up The Divided Attention Myth


Welcome back to the DUI Trial Lawyers Academy. This podcast is brought to you by silvaandsilvalaw.com, great lawyers, helping great people. And now, for your host, sought-after speaker, avid mountain bike racer, and renowned DUI trial lawyer, Patrick Silva.
Patrick Silva:
Welcome back to the DUI Trial Lawyers Academy. This is your host, DUI trial lawyer Patrick Silva. Today, we're going to be talking about divided attention, and we're going to show you how to blow it up and disprove that myth. Here's what you usually will face in a trial. The officer, the DA, the lab rat, they're all going to try and say that because your person cannot do these divided attention tests, a.k.a. the field sobriety tests on the side of the road, that that will equate to the inability to safely operate a motor vehicle. But what we're going to establish is that throughout the entire stopping process, all of it is divided attention. And we're going to focus on a couple of things today, but you'll see by the time we're done with this podcast, how to properly attack the divided attention myth.
The first couple of questions that we want to establish is, what exactly is divided attention? What we're going to hopefully teach the jurors is that the alcohol in the person's body, once it reaches the brain, that's what affects the person's ability to divide their attention. But we're going to show that they have the mental acuity to divide their attention through different parts of the driving pattern, and that's what we're going to focus on today.
So what we're going to do is we might ask the officer, "Well, Officer Jones, according to your training, under the NHTSA protocol," and remember we've already established NHTSA as the only authority on field sobriety tests. "If a person is impaired, they will have alcohol in their brain. Isn't that true, Officer Jones?" Well, where can you find that out? That's going to be in section two, page 32. And then we'll follow it up with a cross question. "Well, officer, isn't it true that it's the alcohol in the brain that can cause mental impairment? And when you're doing a DUI investigation, Officer Jones, you're assessing whether a person is mentally impaired or not. Isn't that true?" And remember, they're going to try and tie mental impairment to the inability to balance like a ballerina.
"According to your training, Officer Jones, under the NHTSA protocol, during a DUI investigation, you could assess whether a person can divide their attention in several areas. Isn't that true? And you can assess a person's mental impairment by how that person is driving before you light him up." Why is that important? Because we're going to go through a whole series of questions of how this person was driving before you lit them up, after you lit them up. So when we're trying to combat the divided attention myth, we're going to show our person was doing the operations of the motor vehicle, which is a lot more technical and a lot more mental attention dividing than merely being able to stand like a flamingo on one leg.
"Officer Jones, you can assess a person's mental impairment by how he's driving after you light him up. And, Officer Jones, you could assess a person's mental impairment during your questioning interrogations of the driver. Isn't that true? Now, Officer Jones, you could assess a person's mental impairment by his performance on the roadside physical test." So what have we done there with the five questions? You could assess a person's mental impairment before you light him up, you could assess his mental impairment after, you can assess his mental impairment by how he answers your questions, you can assess his mental impairment by the way he gets out of the car, and you can assess his mental impairment by the roadside physical tests. So if you got them on one hand, one of them is the one that they're going to usually lean towards. It's the physical impairment on the field sobriety tests. And we're going to have four different cross-examination themes that show that, "Hey, before, after, during questions, and getting out of the car, Johnny looked perfectly fine. He had no mental impairment."
"According to your training, Officer Jones, under the NHTSA protocol, you can assess a driver's ability to divide his attention by watching his actual driving. Why is that important?" Because he's going to say, "Well, no, actual driving, that's not divided attention. It's only these tests." Well, sorry. Bingo. Section five, page 14 to 15. You just tie it back to his NHTSA training. And then we're going to show how complex driving is. "Well, Officer Jones, according to your NHTSA protocol training, driving is actually a complex task compromised of many parts. Steering, controlling the accelerator, signaling, controlling break speeds, operating gear-shifting clutch, observing signal lights, stop signs, traffic control devices, making decisions whether to stop, turn, speed up, or slow down." Where are you going to find that, folks? Section five, page 14. "And, Officer Jones, according to your training under the NHTSA protocol, a driver must be able to divide his attention amongst all these various tasks." That's on page 15 in section five.
So what do we establish? We're establishing that driving is a very complex task that requires mental impairment. So let's say you get a probable cause stop, a.k.a. a reasonable suspicion stop, where it's a taillight out, or he came out and he didn't turn his lights on because it was a downtown area and they had a thousand lights, or his tags were expired, or he had no bad driving. Let's just say that he might've changed lanes without a signal. "Well, Officer Jones, according to your training under the NHTSA protocol, the driver must be able to divide his attention," plus all these various activities, I just went through that. And then we're going to establish it. "Well, Officer Jones, Johnny did not show any signs with mental impairment."
And then you go through a series of questions. "Well, Officer Jones, Johnny didn't show any signs of mental impairment, by the way, he was steering his car. Isn't that true? Johnny didn't show any signs of mental impairment, by the way, he was controlling the accelerator." And you could go through your fact pattern on your police report and tie it back into these questions. But you want to repeat it. "Johnny did not show any signs of mental impairment, by the way, he used his signal. Isn't that true? Johnny did not show any signs of mental impairment, by the way, he used his brakes. Isn't that true? Johnny did not show any signs of mental impairment, by the way, he operated the gear shift and clutch." We don't know if he had a 1977 Ford Pinto, but most cars aren't having clutches, nowadays. "Johnny didn't show any signs of mental impairment, by the way, he responded to your signal lights."
So, let's go through. Well, by the way, he responded to signal lights, stop signs, traffic devices, right, in the way he made decisions. So let's take these seven different things from pages 14 to 15. Go back to your police report. You're going to tie it back. And let's say you've got a dash camera. "Well, Officer Jones, you lit him up and Johnny braked evenly, he pulled slowly, he didn't jerk, he put his car in park. He actually, after you lit him up, we saw 15 other cars on the roadway that he had to make a decision whether to let them make a left turn, right turn. He came to a stop sign, he had to decide which car was going first, he made all the correct decisions. He actually used his turn signal when he pulled over."
And then you could follow up, "Well, Officer Jones, Johnny was actually able to divide his attention between the nine-plus complex tasks while driving. Isn't that true? Officer Jones, Johnny didn't exhibit any signs of mental impairment while executing the nine complex driving tasks. Isn't that true?" And remember, you're tying it back to the police report. Go through your fact pattern, tie his fact pattern back to these NHTSA clues. "Well, what's more reliable, Officer Jones? What's a more reliable indication of mental impairment? A driver's actual ability to divide his attention amongst the complex tasks while driving or your opinion that a driver was mentally impaired because he cannot divide his attention based on your administered field sobriety tests?" Now, you might throw the word in 'improperly' administered field sobriety tests if you've already cross-examined him on the FSTs and whether the officer gave them correctly.
This might be a good area to do a loop. Remember, a loop is where you take an answer, take that answer and weave it back into your next question. So let's just say on your cross-examination on the FSTs, he screwed up on the walk and turn or the one leg stand and you say, "Well, Officer Jones, if you would've known how to do them then the way you know now, what you agreed is the proper way, would you say that you improperly gave your test to my client, Johnny?" And if he says, "Yeah," great. And then you can say, "Well, when you improperly administer the tests, was that part of the basis for your opinion?" So try and work a loop into that. "Let me clarify, Officer Jones, simply put, if you're under the influence, you won't be able to divide your attention. Is that true?"
What's he going to say? He's going to tell you, "Yeah." "Well then, Officer Jones, then it seems like common sense that if a driver can divide their attention, then the driver's not impaired. Is that common sense? And, Officer Jones, according to your training, there's two ways to indicate whether driver's unable to divide his attention. One way is whether or not he can divide his attention based on his driving. The second way is whether or not he can divide his attention based on the roadside physical test." I think those last three questions are paramount to your cross. You got to have those in your question. What you're doing is polarizing his answer, right? Are you calling Johnny a liar? No. Well, we're not saying that, but that's the polarization I'm trying to get you to understand. "Well, Officer Jones, based on his ability to divide his attention while driving, which we just went through the nine complex tasks, which he did everything perfectly, Johnny was not impaired. Isn't that true? But, Officer Jones, you want the jury to believe, based on your opinion of the roadside physical test, he was impaired. Isn't that true?"
All right. So you've seen where we've taken just the driving aspect and tied it back to the fact pattern and we're able to cross-examine the officer on, "Hey, he's driving just fine." Now there's 24 different driving clues and I'm just going to go through them quickly, but you can go through your fact pattern and you could find these on section five, page 26. And the 24 clues are weaving, weaving across lanes, drifting, straddling a lane line, swerving, almost striking a vehicle, turning with a wide radius, stopping, unnecessary acceleration, varying speed, 10 m.p.h. or more under the speed limit, driving without headlights, failure to signal or signal inconsistent, driving in opposing lanes or wrong way, slow response to traffic signals, stopping in lanes for no apparent reason, following too close a.k.a. tailgating, improper or unsafe lane change, illegal or improper turn, driving on other than designated roadway, stopping inappropriately in response to officers, inappropriate use behavior, thrown objects, arguing, and appearing impaired.
All right, those are the 24 clues. Go through your fact pattern. It might bore the jury if you're going through 24, but you could say, "Officer Jones, which of the 24 clues of impairment did Johnny exhibit?" And this is a really good question when you have a mechanical pullover, a.k.a. burnt out tail light, et cetera. "Well, Officer Jones, according to your NHTSA training, there's 24 clues an officer would look for to detect a person is driving under the influence. Isn't that right? Officer Jones, you pulled Johnny over for expired tags." All right, folks, just kind of build them up here. Pick the one that worked for you. No license plate, bulb, burnt out headlight, or anything mechanical. "Isn't that true? Well, Officer Jones, we just went through it. Johnny's driving was actually perfect. Isn't that right? Johnny's driving didn't have any indication he was impaired?"
He's got to tell you, "Yes." "Johnny's driving did not indicate any signs or problems with his ability to divide his attention while driving. Isn't that true?" "Yep." So you could see folks that if you break it down and you turn the divided attention myth against them, you can be very successful in a cross-examination to show that, "Hey, it's all BS on this divided attention myth." And remember, if you listened to the other podcast about the 1998 San Diego study, you will understand that divided attention does not mean mental impairment for the purposes of driving. All right. You know the drill, this is your DUI trial lawyer, Patrick Silva. Put on the boxing gloves, climb in the ring, and have a good fight. Over and out. Bye.

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​Who do you want as your attorney? The Master or the student? Patrick Silva has over 20 years of DUI experience, he has been published in DUI reference books, he has spoken in front of hundreds of attorneys at conferences, taught classes to lawyers on his secrets and strategies, and has a nationally listened to podcast dedicated to teaching other DUI lawyers how to win.  (909)798-1500