Patrick J. Silva - Attorney at Law
A Professional Law Corporation
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
Does Finger Dexterity Equal Sobriety
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. In today's episode, we're going to be discussing finger dexterity, hand mobility. Does the lack of dexterity mean that your client's impaired? Well, what's the other side of the coin on that one? If he has finger dexterity, does that mean he's not impaired? So we're going to go through a discussion here.
We're going to dive into the 2015 NHTSA Manual, and I'll be starting with a reference on Session 6 of page 13. So if we look at Session 6, page 13, it says that an impaired driver would be expected to fumble or drop his wallet, purse, license, or registration. How can you turn that into a cross-examination theme? First, you're going to lay your foundation with Officer Jones. "Officer Jones, you train on the NHTSA protocols." Make sure you tie him down to a manual. You go through that on all your foundation. I've covered it on other podcasts.
And then you might start with, "Well, Officer Jones, you're training. You're actually trained at a person who is impaired is going to have a problem with finger dexterity." You could break this into several questions. "Well, isn't it true, Officer Jones, that an impaired driver, they would be expected to fumble or drop their wallet? When you arrested Johnny, you asked him for his insurance card and his driver's license. Did Johnny have that sitting on his dashboard or did Johnny pull it out of his wallet?" And the officers going to tell you, "Well, Johnny pulled it out of his wallet." "Well, when Johnny pulled it out of his wallet, did you see him drop it?" "Well, no." "Did you see him fumble it?" "Well, no." "Well, would that indicate that Johnny didn't have any problem with dexterity?" Well, of course. Yeah. The officer's going to tell you, "Yeah." "Well, if he didn't have any troubles with dexterity, according to your NHTSA training, that would indicate that he's not impaired. Isn't that true?"
"Well, officer Jones, you asked Johnny for his registration, didn't you?" "I did." "Where was his registration located?" "It was located inside his center counsel." "Did he have to unlatch a latch in order to get into the center console? Did Johnny have any problems with dexterity finding the button to open up the center console?" Or it might be in his glove box, "Did he have any problems opening the glove box?" "Well, no, he didn't." "The registration, was that in an envelope?" "No, it was a little four by four piece a sheet, piece of paper." "Did he drop it? He had to grasp this thin sheet of paper and hand it to you. Did he have any problems with that?"
Well, what did that indicate that he didn't have any problems with fumbling or dropping his registration? That would mean a lack of impairment. How are you going to use that? Of course, you're going to have a flip chart in the end of your cross-examination, or sorry, for your closing argument, have a flip chart and you might just call it fumbling or drop equals impairment and go through everything with Johnny didn't have. And of course, you're going to look at the report and see what it states, but 9 out of 10 times, they never document a fumbling or dropping of a wallet, purse, or registration.
Then you can move on because also in the manual on Session 6, page 13, it says that impaired driver is expected to have a lack of fine motor skills. You could develop several cross-examination that talks about fine motor skills. "Officer Jones, what is a fine motor skill?" "Well, that would be the way a person hands you stuff, the way he sits, does he fidget, standing." And then you go through several different aspects of what Johnny did correctly.
And then you could go through dexterity challenges or dexterity problems. Well, turning off the car, is that a, "Well, Officer Jones, you had Johnny turn off his car, right? He had to exercise his finger dexterity in order to reach the keys and turn it off. Didn't have any problems with that? Well, according to your training, if a person's impaired, you expect them to fumble or drop their wallet, purse, or keys, and they'd also expect them to have a lack of fine motor skills, correct? Well, that's turning off the car, reaching for the keys, that would be an exhibition of the ability to handle his fine motor skills and turn off the car."
What other dexterity challenges are there? Well, he's opening the glove box. What if he has to sift through several documents? So let's say Johnny has a wallet full of cards like I do. I've got my driver's license, my Bar card, my hunting license, several credit cards, and they're all in different parts of my tri-fold wallet. If Johnny has the same type of wallet or you could just develop a cross-examination themes as well, did he just have it sitting by itself? No. He had to look through several different pieces of documents or papers. Right? You asked him for his license and he had to dig through, what, credit cards, any other documents he might've had, and he had to choose the right one. What about during the handing of the document to the officer? Again, that's a dexterity challenge. Sometimes that person might be smoking a cigarette. Well, that's a hand-eye coordination. What if the person is putting gum in their mouth? Again, that's unwrapping, putting gum, they might have a mint opening the wallet. So those are the fine dexterity challenges that a person might exhibit during the stop.
When we're discussing fine motor skills, you might want to develop a theme of cross-contamination that you just focus on every aspect of the driving.
"Well, at first Johnny was lit up by you, officer Jones, he had to change three lanes and he operated the gas pedal. That would be a fine motor skill. He did that correctly. He wasn't impaired operating that. He had to apply his brakes. He wasn't jumping on the brakes. That's a fine motor skill because it's requiring a small amount of pressure, right? He had to use his turn signal. Johnny used his turn signal. Isn't that right?
He moved over lane by lane. He didn't cut across three lanes and then suddenly stopped. Johnny had to come to a complete stop. Yep. That's a fine motor skill. He applied his brakes with even pressure and brakes are touchy. So if he's not able to have fine motor skill in his legs, he's not going to have a smooth stop. He actually put an in park that's another fine motor skill. He put the parking brake on. That's a fine motor skill. He rolled down his window. He had to operate the correct push button on his car to lower the window. That's a fine motor skill. And he turned off his car." So what you could do is take every one of those aspects of the stop turning it into a question, and develop a fine motor skill cross-examination.
Now just briefly, part of this podcast is being developed for the DUI Trial Lawyers Academy, which is going to be a course with all these cross-examinations completely written out with examples, foundational issues, satisfied. If you would like to be part of my beta test group, which means you're going to get everything for free in advance and all I want you to do is give me an analysis of what else would help you in that episode or that lesson plan go to, DUITLA. So D-U-I-T as in tango, L as in Larry, A as in alpha @yahoo.com and send me a message that you want to be on our beta test group.
All right. You know what to do. Put on the boxing gloves, climb into the ring, and have a great battle. This is your DUI Trial Lawyer, Patrick Silva. Over and out.
Thank you for listening to the DUI Trial Lawyers' podcast. This episode brought to you by silvaandsilvalaw.com
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