Patrick J. Silva - Attorney at Law

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One Leg Stand Like a Flamingo

Welcome back to the DUI Trial Lawyer's 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 Lawyer's Academy, and this is your host DUI Trial Lawyer, Patrick Silva. In today's episode, we're going to be discussing the one leg stand. The one leg stand is not as simple as some people will make it out to be, just standing on one leg, try not to put your foot down. There are several different cues, and the mnemonic that I use is called, "PUSH", putting foot down, using arms, swaying, or hopping.
The page references and the sections that I mention in this episode are relating to the 2015 DWI Standardized Field Sobriety Tests, NHTSA Manual. Let's kind of start with it. When the officer is giving the instructions to the one leg stand, he has to give the instructions, and he has to give a demonstration. You could find this on session eight, page 66. In order for the officer to give the field sobriety test correctly, there's going to be confirmation, that's where he verifies that the person understood, and he has to give the demonstration. One of the very first confirmation points is going to be after the officer tells the driver to stand with their feet together, arms at your side, and he's going to ask them, "Do you understand what I just told you?", and at that time, the officer is going to do his first demonstration point. The officer's going to stand with his feet together, arms at his side.
After this point, the officer's going to tell him, "I want you to raise a leg, either leg, and keep it approximately six inches off the ground, and keep it parallel to the ground. I want you to keep your leg straight, keep your arms at the side, and while you're holding this position, count out loud in the following manner: 1,001, 1002, 1003, until I tell you to stop, keep your arms at the side at all times.", now this is key because this is the second time that the officer is supposed to tell the driver to keep his arms at his side. Why is this important? Because if the driver's arms come away from their side, more than six inches, that could be counted as a clue.
Following this, the officer's going to tell him, "Keep watching your foot", then the officer's going to ask them, "Do you understand?", this is going to be this second confirmation point. So right now we have two demonstration points, and we have two confirmation points. How long should it take the officer to complete this instructions? Well, it should take about 30 seconds. Now, if you remember the mnemonic, "PUSH", putting his foot down is one of the clues. If your driver puts his foot down, then at that point, the officer's going to tell them, "Well, if you do put your foot down, pick it up, and continuing counting from where you left off.", you could find that on page 69 of session eight.
Let's get into some cross-examination themes. Let's talk about interpretation. So we might want to ask the officer, Officer Jones, well, you're required to interpret what you see, isn't that true? Now what exactly is interpretation? Well, if we look at the dictionary, that's the action of explaining the meaning of something. Basically you have to see something and then tell me what you think you see. At this point, we might tell Officer Jones, and when I say tell, it's basically a question in a declaratory form, in order to properly and correctly interpret what you see, Officer Jones, you must give the proper instructions, and the proper demonstrations to my client, isn't that true? The last question should be setting up the officer for failure or success. If he knows what he's doing, he'll have success. If he doesn't, he won't. And what we're doing is, we'll call it polarizing the case. You're either going to do it right, and everything you see is correct, or you're going to do it wrong, and every thing you see is wrong.
In many a trials, I have had, the officer has more than one time, said that there's more than just the four standardized clue. Now, when I say standardized, remember, this is a standardized field sobriety test, the one leg stand. It means you have to use the right clues, the same clues, the same criteriums, give it the correct way, over and over. There's only four clues, I gave them to you earlier, putting foot down, using arms, swaying, and hopping. But where can you find these? Remember, you might be refreshing the officer memory with the manuals, if he's reviewed it. So that's going to be on page 68, session eight. Now the next one gets me a little bit, on session 8, page seven, it says, if you interpret two or more clues correctly, then there is a good chance that the driver is impaired. Isn't the word, "good chance", something you would use if you're going to Vegas, going to the bingo hall, going to play poker with your friends? No one wants a good chance.
And we'll go into a cross on that, but here's another little nugget right here, session eight, page 70. If you only see one of the four clues, than the driver is not impaired. Bingo. All right, let's talk about cross. Let's focus on good chance. Officer Jones, according to your training, if he had two or more clues, which you said he did, he put his foot down, and used his arms, your training says he has a good chance of being impaired. Officer Jones, how do you define good chance?
Does that mean it's possible he's impaired? Does it mean it's a good possibility that the driver might be impaired? Then we'll turn the tables, so then Officer Jones, the other half of a good chance is that it's possible the driver might not be impaired, and this is from your training off the NHTSA manual. Isn't that true? So just with the little twist there, you're using the words, "good chance", to prove that a good chance he might be impaired, and there's a good chance he might not be impaired. And you might want to focus that, and create a nice little closing argument exhibit.
If you live in a jurisdiction where you see the field sobriety tests on the dash camera, you're going to see maybe a two man team, the arresting officer doing the field sobriety test to the driver, and the other cops walking around the crime scene, doing this, doing that, well, guess what? That can mess up the guy's performance. And you might want to ask the officer, Officer Jones, this is a two man team? Well, yes it is. And you're doing the field sobriety test investigation, Officer Smith is over there watching your back, he's securing the scene, he's moving around. Well, yeah, he's walking around, he wasn't standing like a lump on a log, was he? No, he wasn't. Well, if the officer's moving around, then you could point out, well, you know, officers should minimize the movement during the one leg tests, so he's not interfering.
And that comes from session eight, page 70, and you could develop a couple more cross examination. Officer Jomes in the video, I saw your partner, Officer Smith, actually walking back and forth in front of the camera, looked like he was getting a breathalyzer ready to go, and my client could actually see him out of the peripheral, or front of his vision. According to the training, that's going to interfere with my client's performance, isn't that true?
Let's go into a little bit of the divided attention. The one leg stand forces the driver to divide their attention between balancing, listening, and counting out loud, isn't that true? Now, remember, in other episodes, we talked about dividing attention, and it's not just divided attention on the field sobriety tests that count, it's your client's ability to divide his attention while driving, pulling over, listening to the officers, responding to questions, that's important.
Let's talk a little bit about what type of people are going to have problems with the performing the one leg stand, well, session eight, page 65, says people who are 65 or older are going to have difficulty performing the one leg stand. What you might want to get from the officers, Officer, we know people 65 and older, but it's not like a bright line, like 64, 360 days old, and then on your 65th birthday, you actually can't do them. As you get older, it gets harder to do, if you have the studies like I do, you could actually get a British study that says that at age 40, yes, age 40, people actually start having a lot more difficulties. Now, as a quick aside, when I teach a class in my office to other lawyers on field sobriety tests, Saturday morning, no one's got anything in them, coffee and donuts, and no one could do the field sobriety test, and then moving on, people with back problems, of course they have difficulty. That's still on page 65 as well.
Moving on, of course people with leg problems, ear problems. Now the next one is, I think this is some golden nuggets, people who are 50 pounds or more overweight, will have difficulty performing the one leg stand. I think you get some mileage with the word difficulty, but let's focus on 50 pounds. What is 50 pounds overweight? Well, I'm six feet tall, 185 pounds, by the American Medical Association, I'm getting close to being overweight, believe it or not. According to them, I should be six feet tall, and 150 pounds. That's kind of just crazy at age 55. But what I'm saying is, go to the AMA, get the medical standards for height and weight, and if you're a part of my course, we'll have that on our course outline, but get the measurements from the AMA, and you're going to find out that holy cow, almost everybody's overweight.
Now, you probably always heard that, hey, what about the footwear? Well, this comes from the instructor manual, I haven't uploaded the instructor manual, but I will, but the instructor manual on page 65 says that drivers with any type of unusual footwear, flip-flop, platform shoes, should be given the opportunity to remove them prior to the test. If you're looking at the [inaudible 00:11:49], say well, look it, Officer Jones, my client is wearing stilettos. Yes, she's five foot two, wearing stilettos, now she's five, five. And she just did the field sobriety test, damn near perfect, while wearing the stilettos. You didn't give her the opportunity, you should have given her the opportunity, isn't that right? She probably would have done better barefooted, right? And just work up your cross, and see where it goes. And then officer should consider age, excessive weight, location, [inaudible 00:12:22], injury, physical ailments, when he's administering the one leg stand, again, that's from the instructor manual on page 65.
Where should the test be given? It's the same type of location as on the walk and turn, it's got to be a dry surface, a hard surface, a level surface, a non-slippery surface, and a relatively safe condition surface, that's on page 65, session eight. If any of those aren't met, then the driver should be moved to another location. Let's say you get a pull over on the side of the freeway, well, all the freeways have a natural crown, there's going to be drainage, rocks, gravel. That's not a dry level surface. He could have moved them to the next off-ramp. So look at the videotape, go out to the scene, do a little investigation, and see what type of location it was. Now, here's a little golden nugget for you. If you're seeing the field sobriety test on the video, and the officer puts his foot down where he can't do the test, then he's actually demonstrated it wrong.
Now, if you get bold enough, have the officer do the test in trial. Go to your jurisdiction, California, we have a case on point that says a demonstration is allowed if it's going to add to the general pool of knowledge of the jurors, and what you want to do is make sure you look for the cheat. The cheat is a person who stands on their foot, and that knee is not locked out. So the standing knee has to be locked out. Officers have been taught that if you bend it just a little bit, do that yourself right now, put one foot up, and the other leg, keep it locked out. Now, put a little bend in it, and you're going to see it's a lot easier to stay with your foot up with a little bend in that supporting knee.
Also, if we go back to the girl with the stilettos, if the heels are more than two inches, he should tell them, hey, you could take those off. What if you come across the demonstration, or administration, where the officer doesn't say count 1001, 1002, but they say count to 30, well, that's actually wrong because I've had cases where they tell them count to 30, the guy does it, and if you sit there and watch it, or time it with a stopwatch, it's actually 45 seconds, okay? So count 1001, 1002, 1003, until I tell you to stop, that's on page 67.
And then on page 69 it says an impaired driver cannot keep his foot up for 30 seconds. Let's say your client keeps his foot up for 30 seconds, even though he has a little sway, your cross-examination from that points, going to say, well, officer you've been trained that a impaired driver can not keep his foot up for 30 seconds, would that opposite be true? That if a person keeps up his foot for 30 seconds, he's not impaired? Well Johnny here kept his foot up for 30 seconds, that would lead us to conclude he's not impaired, but ultimately you thought he was impaired.
Alrighty, that's going to conclude this lesson on the one leg stand. There's a lot more to it. You could actually use different studies from different scientific leaders that discuss balance one leg stand, but if you get too deep in it, sometimes you'll lose the jurors. This is DUI Trial Lawyer, Patrick Silva, put on your boxing gloves, get in the ring, and have a good fight, over and out. P.S. One more thing, email me, or post a comment if you have a specific subject question that you want me to discuss on this podcast. Have an awesome day, bye.

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