​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

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

Client 50lbs Overweight or Over Age


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. In today's episode, we're going to discuss a couple minutiae facts that could be helpful. Are the standardized field sobriety tests validative for a person who is 50 pounds or more overweight, or someone who's over the age of 60? Let's get to it. We're going to talk about being 50 pounds or more overweight. The standardized field sobriety tests have never been validated by NHTSA on a person who is 50 pounds or more overweight. This does not come from the participants manual. This comes from the DRE, that's the Drug Recognition Expert pre-school instructor manual. It's found in the administrative guide, page seven. Now, eventually, I'll have all these manuals, the ARIDE, the DRE's; loaded up onto our website. But for now, just know that it's in the DRE pre-school instructor manual. And what the NHTSA recognizes is that, "Hey, if you're 50 pounds or more overweight, these field sobriety tests have never been validated."
Now let's back up two steps. How are you going to prove that your client's 50 pounds or more overweight? Well, if he's looking kind of thick and large, or she, then I think to the naked eye, it's going to be relevant. But how are you going to get this into evidence? Let's go one way. Let's say your own expert is going to testify about the field sobriety tests. And of course your expert's been trained and they've read the studies, but where's your expert going to get this information? Well, the AMA, the American Medical Association, has a chart. And basically it's a body mass index chart; how old you are, how tall you are and what your body weight should be. I remember when I was a little muscular, I think I was six foot and I weighed about 215. Well, by AMA standards, I was overweight by, I think, about 30 pounds.
I think they have the ideal weight at 185 or less. So your expert can pull up the AMA recommendation. Let's say you don't have an expert. Well, you're going to make sure that the officer who's testifying; you get them a copy of the AMA, have them read it, give it to them beforehand, serve it on them. If you get a copy of the DRE pre-school instructor manual, again, you might lay the foundation by saying, "Well, NHTSA is the guidelines and protocols for all field sobriety tests. And they had different manuals." Yes, yes, yes. And some are instructor manuals, some are student manuals, some are ARIDE manuals, some are DRE manuals, some are pre-school manuals. And we have all different types of manuals. Yes, yes, yes. So, you're laying the foundation. You say, "Some of these manuals have more information. Now, Officer Jones, you've been taught that just because a person... Officer Jones, you've been taught that if a person is 50 pounds or more overweight, then the NHTSA clues have never been validated for that person when they're performing the field sobriety tests."
He might agree with you. He might've heard them. I don't know. But let's say, "Okay, Officer Jones, look at my client over there. You looked at his license, right? And on his license, you wrote down he's 5'8 and he's 256 pounds. Do you think he's overweight?" You're going to get objection; objection, speculation, no foundation. But the jury is going to understand, and you say, "Well, Officer Jones, if he was 50 pounds or more overweight, does that make it more difficult for him to perform these field sobriety tests?" and "Officer Jones, it makes it more difficult for him to perform these field sobriety tests and not exhibit any of the clues you're looking for" or "It's more difficult to perform them because the criterium is not the same." So what we're doing is tying it back to the client.
So, basically at the end of the day, Officer Jones, my client; he's overweight, right? That means if he's overweight, Officer Jones, he's going to have more stress on his knees, right? Ankles, right? His thighs rub together, which makes it harder for him to do the one leg or the walk and turn, yes. Makes them harder to spin, right? It's harder for him to walk straight lines, stand on one foot and do the bounce test, right? Because he's carrying all this extra weight. It's almost like putting on a couple weight vest, Officer Jones, and asking you to stand on one leg. Your knees are going to feel it. But gradually over time, a person gets heavier, heavier and heavier, and they don't understand what's going on. At the end of the cross-examination what we're basically trying to prove is that yes, you gave my client these field sobriety tests.
Yes, he didn't perform them perfectly. And yes, the reason was because he was 50 pounds or more overweight. So Officer Jones, at the end of the day, my client's overweight. He's basically too heavy. That affects his ability to do the tests. That affects the criterium. That affects the clues. And we really can't count on your interpretation of the clues because my client's just too big. Now, let's go over to the "over age 60". Well, it's the same thought process. The standardized field sobriety tests have never been validated. That's a huge clue by NHTSA on a person who is above 60 years of age. And you're going to find that in the same location, the DRE pre-school instructor manual administrative guide, page seven. And remember, you laid the foundation, Officer Jones, the NHTSA manuals are the guidelines, they're federal, they tell a person or an officer how to do the field sobriety tests administered, there's different levels of the manuals.
Yes, some are instructor manuals. And then you can refresh his memory. Let's say that, "Well, you've read the manual. And we know that the information you're trained on comes from different sources of the manuals, right? And you had a participant's manual and the person teaching the class had an instructor manual." Yes, yes, yes. So, as you go through it, you've laid your foundation. You'll establish that your client is 60 years old, 65, whatever he is. "Officer Jones, you actually looked at his license. You wrote down in your report my client was 65." And then you'll go through the same type of series of questions. "Well, the NHTSA standardized tests, which you gave my client, they never been validated. What does validated mean? Means to be true. So they've never been verified. Yes, Officer Jones, isn't that true? They never even verified for somebody that's older. So my client's old and they're losing balance. They don't have the same balance as they did when they're 18, right?"
You're going through the same sequence of questions, tying your client's performance on the test to the fact that they're just too old or they're just too heavy. And you're tying it back to the fact pattern. I know I'm going quickly through this. It's something you can develop as you go through it. If you ultimately become a course member, you'll have access to all of my cheat sheets, my cross-examination patterns. But for right now, those two golden nuggets almost appear, well, I won't say almost appear; but they appear a significant amount of time, out here where I practice. I have a lot of 60 plus clients and I have a lot of overweight clients. If we're going to trial, that's where you're going to want to start utilizing this type of information. This is another short and sweet one. This is your DUI Trial Lawyer, Patrick Silva. You know what to do; put on the boxing gloves, get in the ring and have a great fight. Bye.

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