Patrick J. Silva - Attorney at Law
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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
How to Administer WAT (Walk and Turn)
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 podcast, we're going to be discussing the Walk and Turn, and I'm going to refer to this as the Walk and Turn cheat sheet and cross. I will be making reference to the 2015 NHTSA manual, with a focus on session eight.
Let's talk a little bit about what can affect performance on the field sobriety tests, especially the Walk and Turn. If we look at session eight, page 77, it does point out that wind, weather and the driver's age can interfere with the driver's performance on the Walk and Turn. Now let's work these into a cross-examination question.
Officer Jones, on the night you arrested my client, Jose Cuervo, you had him on the side of the freeway. True? And this was out in Joshua Tree. Isn't that right? It was approximately 34 degrees. There were big rig trucks driving by at 70, 80 miles an hour. There was plenty of wind rush and all these could have affected his performance on the Walk and Turn.
You might bring back to the officer's recollection that it was windy that night, it was cold that night, that your client had no jacket on, your client is 65, 67, 70 years old. And you're going to point out the fact that all these can interfere with his performance on the Walk and Turn.
Now let's go to the clues on the Walk and Turn. A nice little mnemonic is BS SO WHAT? So, bullshit so what. B stands for if your client loses his balance during the instruction phase. S, if he starts too soon. If his S, another S, step number is incorrect. O, steps off the line. W, walked and stopped. H, he misses heel to toe. A, he uses his arms more than six inches and T, there's an improper turn. Where are you going to find this in the NHTSA manual? Well this is going to be on session eight, oh sorry, session seven, page 14.
When the officer is testifying on direct examination, you might find that the officer doesn't remember everything that he saw as a clue. He doesn't remember exactly how he administered the test. And what you're going to do is have a little cheat sheet of your own sitting there with you at counsel table. And you can just write down quickly what he used as clues, what he saw, and then you could cross examine him on the correct way and the correct clues. A lot of times the officers get wrong the number of clues that are needed to say that, quote, he failed. Now, the officers will never say it's a pass or fail. But if we look at session eight on page 62, it's going to tell you that out of the eight clues on the Walk and Turn test, you need at least two to say that, quote, there's a problem here.
What about setting up the Walk and Turn? Can we attack it from that point? It's always a great idea to visit every arrest scene. If you don't visit the arrest scene, then you're doing yourself a disservice when you get in the trial with the cop. By visiting the arrest scene, you could take pictures, you could take a level with you, you could take a cue ball off a pool table and show that the angle is terribly slanted, the ball rolls.
And if we look at page 55 of session eight, it's going to tell you how you set it up. It's got to be a reasonably dry surface. It has to be a hard surface, has to be a level surface. It has to be a non-slippery surface, and there has to be room for nine steps. Each one of these is a separate element. You can have a hard surface that's not dry. You can have a dry surface that is not level. You can have a level surface that is slippery. So all of these must be or should be a place where you're going to perform the Walk and Turn.
Is there a certain category of the population that's going to have problems with doing this Walk and Turn, even with zero alcohol in their body? And the answer is Yes. Go to session eight, page 55. And that's going to be people who are over age 65, people with back problems, people with leg problems, people with inner ear problems.
During the investigation, specially in the CHP, they're going to ask your client, did you have any mechanical problems with the car? Do you have any physical problems? You can either go through that and say, well, my client did tell you that he had back problems. He did have leg problems. And then you tie it back to the NHTSA manual, and say, Officer, based on your own training, isn't it true that it says it right here, people with back problems are going to have difficulty performing the Walk and Turn tests? Well, Johnny told you that he had problems with his back, and he told you he had problems with his knees. Those are leg problems. He actually told you he had vertigo. By going back, you could tie it back to the NHTSA manual, create a simple cross-examination, pointing out the problems, and then you could clean it up or close it up with a question, just saying, well, based on the problems that Johnny had, it's not fair to say that he truly had difficulty with the Walk and Turn based on alcohol.
What about things, outside conditions that could interfere with a person's performance on the Walk and Turn? Well, we know wind does, weather conditions, the person's age, and, guess what, their footwear. Where's that going to be? You're going to find that on session eight, page 56.
Now let's go to, how do you properly administer the Walk and Turn test? Where you are you going to find that out? You're going to find that on page 56 of session eight. And remember, it's going to tie to page 13 of session eight, if you don't give the test, right, don't use the right clues and what you see can be compromised. So the officer is required to give verbal and he must demonstrate certain portions of the test. So I'm going to go through how to give the test correctly. You can find this on page 56 and 57 of session eight.
You're going to put your left foot on the line, put your right foot on the line ahead of the left foot with the heel of the right foot against the toe of the left foot. Place your arms at your side. Maintain this position until I complete the instructions. Do not start until I tell you to do so. Do you understand the instructions so far? We're going to call this last question, do you understand instruction so far, as confirmation point number one. Remember, going back up to the beginning, you must give verbal instructions and demonstrations, but actually there's confirmation. That means you have to ask the driver if he understands. So that's confirmation point number one.
And then the officer is going to say, when I tell you to start, take nine heel to toe steps on the line, turn and take nine heel to toe steps down the line. When you turn, keep your front foot on the line and take a series of small steps, looking like this. Do you understand? Now, that's confirmation point number two. Now, here's a little nitty gritty NHTSA tip, is that according to the manual, the officer must demonstrate the entire test. He has to demonstrate the holding pattern, that's maintaining heel to toe during the instruction phase. He's got to take nine steps, then he's got to turn around and take nine steps. Many times they're just taking three steps, turn around and take three steps back.
What are the clues and what constitutes a violation of the clues? Going to session eight, page 58 to page 61, is where you're going to find them. But if you remember, I just went through the mnemonic BS SO WHAT. The first one is that the driver loses his balance. This only counts as a clue if he separates his feet from the heel to toe position during the instruction phase. What if your client starts too soon? Well, this is a tricky one, because, make sure you watch the dash camera or listen to the audio because if the officer pauses too long after he gives the instruction phase, your client's going to naturally begin, because they said, okay, the cop stopped, I guess I start now. But a lot of times the officer will not say, go ahead and begin. And they'll count that as a violation. Then they say, well, you didn't listen to me. You know, I told them, wait to begin, and when I tell you to.
Stopping while walking, that means he actually stopped during the nine heel to toe phase. And if he's walking slow, that doesn't count. Missing heel to toe, it has to be more than a half inch. You could get a lot of traction on this. Well, how are you judging what a half inch is? Did you get down there with a tape measure? Of course not. Well, this was on the side of the road. You're in the dirt. It's dark, you're taking notes. You have a flashlight on him, a flashlight on the line. How are you seeing his feet? And a lot of it's just common sense.
What is off the line? So this is where it gets a little weird because if you're using an imaginary line, is the officer's imaginary line the same as the driver's imaginary line? Is the officer's imaginary line a half-inch line, a one inch line? Is it the width of his foot? So stepping off the line, that's a whole other area that you could develop a good cross. If he uses his arm, that's another clue. And it's got to be more than six inches. A person with big lat muscles, their arms are going to be at least four to six inches away, just naturally.
Improper turn, a lot of times, they're good and the officer's going to mark an improper turn. He'd say, he didn't do it exactly like I showed him. And the instructions say, keep your left foot on the line and you take a series of small steps. Wrong number of steps, well, that's just self-evident there, if he counts wrong. I've had some clients do the, what's it called, the Walk and Run. They take 23rd ... I know once arrest, the officer let him go 30 some steps before he told him to turn around.
What else can cause a problem? Well, what we're going to look for on the video is cars driving by the scene. The second officer, who's doing backup, he's moving around, and that can cause distractions and it could cause a problem. Where are you going to find that? Well, of course, session eight, page 61. And then we get to what does all this stuff mean? On the NHTSA manual, there's a little bit of a golden nugget. If there's one clue or less, the driver is under 0.08. That's on page 62. And then there's another golden nugget. The standardized field sobriety tests start to identify blood alcohol content as low as 0.04. You could actually develop a series of cross-examination questions just on that fact alone. Because if Johnny is showing signs of missing the clues on the Walk and Turn, you could come back with a cross and say, well, all that means, Officer, is that he could have been 0.04 or maybe a little higher.
And then we have to tie it all back to session eight, page 13. Officer, isn't it true that validation only applies when the test is given in the prescribed standardized manner? Officer, isn't it true, that validation only applies when the standardized clues are used? Officer, isn't it true validation only applies when you use the right standardized criterion for interpreting the clues? And isn't it true, Officer, if any element has changed, the validity is compromised? That's all on session eight, page 13.
And again, I went through this quickly, but you're going to develop a cross-examination series and I have these, I've developed them, I'm just not going over these right now because that's a longer podcast. But the validation clues, you can say, Officer, you have to give the tests the same way. You have to use the same clues. You have to use the same criterion when judging the clues. And if you change anything, the validity is compromised. Officer, basically it means, if you don't give a test right, what you see might not be correct. Isn't that right?
All right. This is DUI trial lawyer, Patrick Silva. Thank you for listening to this podcast. Now put on the boxing gloves, climb into the ring and have a good fight. Over now.
Thank you for listening to the DUI trial lawyers podcast. This episode brought to you by silvaandsilvalaw.com.
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