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

​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

Getting The Officer To Do FST's


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.

Welcome back to the DUI Trial Lawyers Academy. This is your host, DUI trial lawyer, Patrick Silva. Today we're going to discuss, I would say a pretty interesting question. Does the officer have to do, or should he do, or might he do a demonstration of the field sobriety tests while he's testifying in court? You might be thinking one, well, are there pros and cons? If you have him doing them and he does them correctly, well then, hallelujah. You say, "Well, good officer, you've done these a thousand times. Thank you." If he does them and he screws up, you can count the clues and say, well, officer, have you had anything to drink? But anyway, let's go back down to, back to the foundation.
Now, remember we're talking about the NHTSA manual and on this, this is a real good golden nuggets. It's on 2015. It's a manual. It's right behind Session 12. So it's real small. It's not even its own session. It's literally a trial recommendation. And I'm going to read it verbatim. And then we'll talk about it.
The officer is taught that if he can't do the FSTs properly, then jurors can't expect the driver to do them right either. All right. So what we're going to do is discuss, then ... Let me back up. Then it says, discuss with the prosecutor during pretrial whether or not to demonstrate how you conducted the field sobriety tests. So one, the manual, the DUI NHTSA manual, is saying, hey, you have to be able to demonstrate that while you're sober, you're able to do that. And you got to talk to the prosecutor before you even take the stand on whether or not you're going to do them.
Then it continues. Be certain that you can do in court all the tests that you asked the defendant to perform at the time of the arrest. If you can't do them, the jury will not expect the defendant to do them properly. And that's on specific DWI Trial Recommendations. And it comes right after Session 12. I believe it's only two pages.
How are you going to do this? So first you're going to lay your foundation. You're going to talk about officer your train. Where did you get your training? He was trained in the Academy. Your field sobriety test training is based on the NHTSA manual. Make reference to specific name. Remember if you go to my website, you'll have access to all the DWI manuals from NHTSA going back to 1980. And again, this is just ... 1980. This is just the participant manuals that I have loaded up right now. Not everybody has access to them right now. If you shoot me an email, I will send you a digital copy no problem.
Now you laid the foundation. Make sure that while you relied on the training that you received from the NHTSA manual in part of your investigation on Mr. Jose Quervo here. Yep. I sure did. That's right. And remember in California, Evidence Code 771 in your jurisdiction, look to see anything that the officer relies upon, you can cross examine and admit certain portions. So if you want to admit a portion of it, have a nice exhibit created. Now I've had one trial where the prosecutor wanted to have the expert, or sorry, they wanted to have the cop deemed an expert in the area of field sobriety tests.
Now most attorneys fight him on this. Well, I didn't. You know why? Because Evidence Code 721(b)(3) says, hey, anything that is a reliable source can be read into the record. So on that trial, the officer was deemed an expert. Say, oh, you're an expert. You should know all this stuff. Uh-huh (affirmative). And this stuff is a reliable matter, right? And then all I did is I opened up the NHTSA manual and started reading verbiage from there. And then I made nice exhibits out of my verbiage for closing arguments. So their little expert scheme backfired them on that trial. And actually that was a 0.17 blood alcohol case. And we hung it, later resolved it for a very good non-DUI resolution.
Anyway, let's move on. So you lay your foundation. Let's talk about the cheats. What are the cheats? Now let's say the officer is doing the One-Leg Stand. One of the things they've been taught, if they're going to cheat, is they're going to keep the leg that they're standing on, slightly bent. So if you have the officer in the well in the gallery doing the One-Leg Stand and you see a slight bend and you'll say, nuh-uh-uh. That's not right. You've been taught that's actually a cheat. You could keep your balance if you keep your leg bent. Isn't that right?
Let's talk about another cheat. Let's say there doing the Romberg Test ... Sorry. Let's talk. Yeah. Let's say you are doing the Finger to Nose Test. Well, what they'll do is they'll get a reference point by itching their nose before they even start. That's another cheat. So you got to be able to watch for these and pick one. Give them the test and go through the clues and say, well, Officer Jones, on this walk and turn, you were swaying. And it looks like you missed your heel to toe more than a half inch on Step #3. That's two clues under the NHTSA guidelines. That would mean you're impaired. 65 or 68% chance. And you say, "Well, have you had anything to drink today?" "No, I haven't." Of course, he's going to say he hasn't. Well, you're sober as a church mouse, right? Mm-hmm (affirmative)
Okay. So I'm as sober as a church mouse. I can't do the field sobriety tests. Well, if a person, such as yourself, who's done these thousands of time can't do them, can you expect a person who's never done them, the first time to do them correctly? And you might ask them, "You ever play football?" Do you remember the first time he had to do a three-point stance? He rested on one arm. It was kind of hard. Anytime you try anything new, it's very difficult, isn't it? But after practice, you get a lot better. This is a short sweet one. I literally just focused on a two-page section of the manual. All right. You know what to do. This is your DUI trial lawyer, Patrick Silva. Put on the boxing gloves, climb in the ring and have a great fight. Over now.

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