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Finger Counting Is For Kids​



Welcome back to the DUI Trial Lawyers Academy. This podcast is brought to you by Silva and Silvalaw.com. Great lawyers, helping great people. 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 UI trial lawyer Patrick Silva. In today's lesson, it's going to be a short and sweet one, but what we're going to talk about is the finger count. You might've seen it on TV. You might've seen it in your own cases, but this is the one where the officer says, I want you to count your fingers like this: one, two, three, four, four, three, two, one. They might tell you to do two sets, they might tell you to do three sets. They might mix it up. They might tell you to do one, two, three, four, four three, two, one. One, two, three, four, four, three, two, one. And then they'll tell you on the third set, do it backwards, then count four, three, two, one, one, two, three, four. So let's talk about this just a little bit. The finger count, it isn't a standardized test, which means is it one of the three NHTSA approved tests for the field sobriety test series? And the short answer is no.
If we're looking at the 2015 NHTSA manual, the reference on the finger count is limited to one page and that's because it's not a standardized field sobriety test. But it does give some instruction. On page 16 of session six it states the following. The reference that the NHTSA manual makes to the finger count test basically says, it has four lines of text, in this technique the driver's asked to touch the tip of the thumb, to the tip of each finger on the same hand, while simultaneously counting up one, two, three, four, and then to reverse directions on the fingers while simultaneously counting down four, three, two, one. In each instance note whether and how well the driver is able to perform the divided attention task.
So let's go back in. You're in trial, the officer's on the stand, and he's going through the field sobriety tests that he gave. You might be in a jurisdiction where they throw an extra test besides a three battery test of the standardized field sobriety tests. So let's say the officer gives the finger count. Where are you going to cross examine him on? Well, first of all, you're going to say, Where was he learnt? Or, sorry. Where was he trained? Who was the instructor? What did they teach him exactly? I've seen this test given a couple of different ways and they've given three to go one, two, three, four, four, three, two, one. I've seen them mix it up. So one, two, three, four, four, three, two, one, do it again, and then reverse it on the last set. Four three, two one, one two, three, four.
So there's no really direction. And you can really focus on, well, it's just another divided attention task. And then you're going to relate that back to well, everything is a divided attention because as soon as you lit him up, we had divided attention task on him driving, signaling, gauging traffic, watching your headlights. When he exited, that's a divided attention [inaudible 00:03:40]. When he got out of his car, when he walked around, when he's answering your questions, when you're asking him multiple questions, the same questions over and over and over, those are divided attention task. So you could build a little bit of cross examination on this.
Now, one of the things we see out here in California is the finger count. The CHP loved to say, well, he didn't touch the tip of his fingers to the tip of his thumb. Well, the officer's telling them this really quick. I want you to count one, two, three, four, and he's going to say, I want you to touch the tip of the finger, tip your thumbs. And then you know what they write in the report? You got it. He touched the pad of his fingers to the pad of his thumbs. Well, how many people are that ambidextrous to go one, two, three, four. And you're touching tip, that's like right below your fingernail of the thumb, to the tip of your fingernail on each of your fingers. It's a very specific distinction that they try and make and say, well, your guy wasn't listening to me, I said, tip.
Now, they might say that he messed up one, two, three, four, four, three, two, one. The next clue that they're going to say, is say, well, he didn't touch it. Exactly. Each one was off just a little bit. One, two, three, four, four, three, two, one. He might say that Johnny missed his fingers entirely. If they say that, you can say, okay, this is at 2:00AM. You're on the side of the highway. It's dark. All you have is your flashlight and your headlights. And you're taking notes. You're watching traffic to make sure that you're not going to get hit. You have a lot of distractions. So how are you paying attention to exactly where Johnny was? And at the same time you're taking notes.
So, additionally, what are some of the fruitful areas of cross? Well, you could say officer, you go through an area where the officer did not give the instructions correctly. And let's say the officer mixes it up and he tells him, do five sets. Well, you go back to the NHTSA manual, say, wait a minute, the NHTSA manual gives you some guidance and it doesn't tell you to do multiple sets. It just tells you to do it once. One, two, three, four, four, three, two, one. That's it. So he changed the fact pattern or the directional pattern that was given in NHTSA.
You could also go through a line of questioning on, well, did you explain to Johnny the difference between the tip of his finger and the pad of his finger? And if you're going to count this as a clue, don't you think it was fair that you explained to him what the difference is? I mean, you can walk down the street in Manhattan and asked 20 people can you tell me where the tip of your fingers are? And they're going to touch the pad. So we really don't know the distinction there.
You could also point out that if we're talking about standardized approved tests, the finger count is not one of them. And there's another thing, there's no clues. There's no approved clues by NHTSA. They just say, it's another divided attention task. And again, there's no criterium. and you could develop your cross-examination questions. Well, officer, at least if we're looking at the one-leg stand, the walk and turn, and the eye test, those have clues. Those have criteriums and they have certain ways you have to give them. Actually, there's nothing on the finger count that directs you onto clues or criteriums. It's almost like you get to make up your own set of rules on this one. And then the officer, he gets to decide, well, is he going to start with his pinky finger or his index finger?
Now this was just a real short and sweet dissection of the finger count. And these are some of the major problems I run into in trial. It might not be worth a whole lot of energy to spend it on this one. But you got to think, what is your theme if you're going to go through this? Well, one theme could be, is that, hey, the officer's using a non-approved test. So let's say Officer Jones went through walk and turn, one leg stand and the HGN test. Then he throws this one on top of it, and another one. Well he's using a test that's not standardized. So he's adding an extra test. Another theme might be that there's no standardized clues or criterium, so this test isn't fair. So, that would be your theme. And then another one be, well, if there's no rules to play by, how do you know what the score is? So that's a little football, baseball analogy but you got to have rules in place to basically make a judgment call.
It's almost like we're going to the art museum. I've never been, but you go to the art museum and what do you get? You have an art expert standing next to me. And he says, Oh, this is a beautiful painting. Look at this, look at that. And all I see is a tree with some leaves on it. There's a big difference between having a set of rules and guidelines. And the finger count is kind of that art expert. You can have two different art experts looking at the same picture and one says, Oh, this is beautiful. And the other one says this is hideous. So no rules, no criterium, no clues.
I hope you've enjoyed this one. If you have any questions, you have a certain subject that you would like covered in a future podcast, put it down on the comment section. I'll definitely look at it and I'll give it some thought and I'll put it out on a future podcast and I'll give you kudos on the air, too. Right now we are hitting approximately, oh, I think we're up to 20 different states who are listening to this podcast. So the ideas and the thoughts are getting out there and hopefully these are DUI defense attorneys listening to this podcast. On a side note, I've had plenty of prosecutors go to my websites and YouTube and learn my defense techniques and try to beat me in court. Anyway, this is DUI trial lawyer, Patrick Silva, have an awesome day, put on the boxing gloves, get in the ring, duke it out. Over and out. Peace.

Thank you for listening to the DUI trial lawyers podcast. This episode brought to you by Silva and Silvalaw.com.

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