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Finding the Golden Nugget in the NHTSA Manual
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. This lecture I'm going to call, Finding The Golden Nuggets in the NHTSA manual.
Let's say that you have an officer on the stand who he's clearly giving biased one way leaning answers. You know whose team he's on, he's on the prosecution's team, and he's not giving you an inch and he's trying to take a mile. What you can do is you can use the manual against them. Say, "Well, Officer Jones, I noticed that when the prosecution asked you questions you gave nice answers, you looked over at the jurors. And every time I asked you a question, it's well, I don't know, I don't recall, my memory, I'm not really remembering right now. Can you repeat the question? I don't understand your question." And he's fighting you every inch of the way. And then you might want to refresh his memory.
Say, "Well, Officer Jones, remember earlier, you said that the NHTSA manual was the basis of your field sobriety test training." And then you're going to pull it up. Session three, page seven. And what session three page seven says that the officer is not just an independent witness, he is trained to convince the jury the driver was impaired. Officer Jones, you're actually doing exactly what you were trained. You were trained that you're not an independent witness, like you said earlier, when the prosecution was talking to you. And you're not just coming in and stating the facts like Joe Friday did on Dragnet. You're actually part of the team, correct? And your job is to come in here and convince the jury that the driver was impaired.
What's he going to say? No, maybe? He might hem haw, I don't know. I don't remember, they didn't go over that in my training. But it's, hey, let me show you this. You said you reviewed this manual, let me refresh your memory.
The next session I want to talk about a session three page 10, and I'm going to read it here. It is possible for a person who's BAC at the time of arrest is above the per se or presumptive level to be acquitted of a DWI. This can happen when the cops' testimony is confusing and unclear, or when the driver drove, behave and spoke normally. If you're going to develop some cross examination questions off this session and page, what you might want to focus on is, well Officer, not everybody, according to your training, who is pulled over for DUI and who's BAC might be higher than the .08 is guilty of a DUI.
You get an objection on this one, but you might want to say, "Well, according to your training, you've been trained that a person who drove normal, behave normal and spoke normal, that type of person, they can be acquitted of the DUI charges. Well, you learned that in your training. Isn't that true? Well, it's on session three, page 10, take a look here." And again, you're going to use your correct refreshing memory techniques in your jurisdiction. But I'm just giving you a quick and dirty synopsis of what you might be thinking about.
So Officer Jones, let's go through Johnny. You pulled Johnny over because he had a tail light out, allegedly, or he had a light bulb over his license played out. And you were actually hanging out by the Gator's Bar, right? And you were parked in a back corner and you were looking for anybody to pull over. But when Johnny was driving, he came out, he came to a smooth stop. He looked both ways. He used his turn signal. He entered the roadway. He was traveling at 25 miles an hour. The speed limit, there is 25 miles an hour. You lit him up, he drove perfectly. So actually driving for Johnny that was normal driving. He drove like a normal sober person, correct? True.
When he got out you didn't have any trouble understanding him, did you? No. He spoke normally, right? He didn't run, he didn't fight? He acted like a person, gave you respect. He behaved normal. So according to your training that you received under the NHTSA protocol, that type of person, they could be acquitted. That means found not guilty of a DWI. You're going to get ready for the prosecution. They're going to have objections. But what you'll do is you'll always tie it back to his training. Well you were trained. And again, you laid the foundation that he was trained on the NHTSA protocol. And again, today I'm referring to the 2015 NHTSA manual.
Now the next one I'm going to talk about, it's session seven, page 10. And that's the 2015 NHTSA manual. A field sobriety test has little or no evidentiary value if a normal sober person cannot do the test. Where's this going to come into play? Well, in your jurisdiction you're going to make sure you have a case on point that says that a demonstrative exhibit, or exhibition inside the courtroom, if it adds to the general knowledge of the jury veneer, that that should be done. And what you're going to do is you're going to have Officer Jones do the field sobriety tests. And you might have them start with the one leg stand. Make sure you looking for the cheats, don't let them bend his standing leg. The walk and turn. He might have him do the finger to nose, which is not a standardized test.
So let's say you pull Officer Jones off the stand and, Officer Jones, I want you to stand with your feet together, arms at your side. When I tell you to begin you're going to choose a foot, of your choosing, raise it approximately six inches off the ground. Keep it parallel to the ground. Keep it straight. I want you to watch your foot and count out loud in this manner, 1001, 1002, 1003, until I tell you to stop. Do you understand? Now I missed one confirmation point and I missed one demonstration point, but you want to make sure that you give it correctly. Now, Officer Jones, remember there's four clues, putting foot down, using arms swaying or hopping. In every DUI arrest they almost always mark swaying. And we'll get to that later but two inches or less is normal.
So let's say Officer Jones has trouble doing the tests. Let's just say his stationary foot moves a little bit, shifts his weight. Well, that's hopping. Let's say his arms are six inches or more away from his body. He'll probably keep him next to his body. Let's say he's not looking at his feet. Well, you're going to point this out and you say, "Well, Officer Jones, it looked like you had trouble. You actually exhibited three clues, two clues, whatever you going to say. You had two clues Officer Jones. Have you had any alcohol in your body this morning? Did you drink any alcohol last night? Are you feeling the effects of an alcoholic beverage in your body today? No, no, no, no, no. And then you say, "Well, based on your training, Officer Jones, you actually have been trained that the field sobriety tests have little or no evidentiary value if a normal sober person can't do the test."
"Well Officer Jones, you're normal, right? You're sober. Right? And it looks like you exhibited two of the four clues. According to your training, two of the four clues would indicate that you were under the influence of an alcoholic beverage, but you're not here today. So actually, you couldn't do the test sober and normal. And if Johnny couldn't do the test even with a little bit of alcohol in his body, that doesn't necessarily mean that Johnny is under the influence." And again, you're tying it all back to his training. You're going to get objections. You're going to make sure that you tie it back to his training. Well Officer Jones, based on your training, you learn this, this, this and this. Yes, yes, yes, yes. And this is what happened on this fact pattern. Yes, yes, yes, yes. So always tie it back to your training. Once you do that, the judges, they normally, they're not going to sustain the objection unless you get a crazy judge.
Now, the next one I'm going to talk about is fatigued drivers. This is a golden nugget, but this doesn't come in the NHTSA manual. Remember there are other manuals. I think there's 14 different manuals. And this one is a NHTSA manual, but it's called drugs and impaired driving student manual. And this is on session six, page two. Extremely fatigued drivers will exhibit indicator similar to an alcohol impaired driver. Now, do you think that your officer on the stand is going to have any reference or knowledge of the drugs in impaired driving? Probably not. If he's a DRE, drug recognition evaluator, or a DRE, drug recognition expert, I don't use that word expert, then he might have knowledge of that manual. But I'm going to say 99 out of a hundred he's not going to have that knowledge. So how are you going to get this in?
Well, this is a point you're going to want to bring in with your expert. Make sure your expert reviews that manual. And, expert Smith, you here today, you have your testimony based on this, this and this. Lay your foundation, and through one of your questions, you're going to make sure, well, what about fatigued drivers? Can you explain to the jury here, so that they could use it in deliberation, and I'll talk about it in a minute, whether a fatigued driver will look like a alcohol impaired driver? And then let you record expert do it away. Now you see what I said something about, so the jurors can use it in deliberation. You're going to sneak things like that in, I won't use the word sneak. You're going to use words like that so it reminds the jurors that, hey, this is something I could use in deliberation.
And remember, what we're doing in cross is we're giving the jurors ammunition for people voting in our side to use. All right? So remember, let's just say we're picking a couple key component, key clues, that we're going to remind them. Pick your themes in the cross and then start supporting those with little reminders. Because remember, they're hearing all this discussion, question and answers, but then they got to go back and you're going to have some fight against you and some fight for you.
You want to make sure that you give the ammunition to those that are going to fight for you. And you're going to do it with little snippets. And closing arguments, you might say something like this, "Well, through the cross-examination I showed that it was extremely fatigued drivers can show signs of alcohol impairment. Well, you've learned that Johnny, he got up at two in the morning, drove two hours to work. Worked the 12 hour shift. Then he drove all the way home. Didn't get any sleep. Had to go out with his wife to a work social function. It's two in the morning so Johnny had been up 24 hours. Johnny was tired." And just keep pointing out fatigued drivers are going to look the same as an alcohol impaired driver.
So now I'm going back to the NHTSA manual, 2015 session, eight page seven through 10. Seven through 10 are the 24 clues of impaired driving. When the officer says he pulls Johnny over for speeding, speeding is not one of the 24 clues. A traffic violation might be, but speeding is not. Just keep that in your line there. Here's another golden nugget I like, impaired drivers use the arms and hands for balance. Well, let's say Johnny had his hands in his pockets. You're going to find that on session eight, page 60 for the walk and turn test, and page 68 for the one-leg stand test. Let's say that the officer on the audio, you could hear him tell Johnny, "Well, take your hands out of your pockets." Or, you see Johnny get out of the car and his hands are in his pockets.
And Officer Jones, we can see that when Johnny was performing the one-leg stand he actually had his hands in his pockets. That's actually the signs of a sober person, right? Because an impaired person's going to have to use their arms for balance. And then you reference it to page 60 on the one-leg stand. Let's say it's the walk and turn, you're going to reference it to page 60 of session eight. And you're looking for, let's say, signs when Johnny gets out of the car, let's say it's on a dash cam video. You're looking for just anything that shows signs of sobriety.
That's going to conclude this episode of, what I called, golden nuggets. There'll be subsequent episodes of golden nuggets. There's a lot here in this manual.
Now, thank you for listening. This is DUI trial lawyer, Patrick Silva. Put on the boxing gloves, climb into the ring and have a good fight. Have an awesome day.
Thank you for listening to the DUI Trial Lawyers Podcast. This episode brought to you by silvaandsilvalaw.com.
Patrick J. Silva - Attorney at Law
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