For the most part, field sobriety tests in many cases, if not most, help the defendant, not the state. I say that because, first, for the HGN test, most jurors do not understand what it is. My feeling is that, for the most part, juries don’t understand what the HGN test is. They don’t put an awful lot of weight on it. My basic strategy with the HGN test quite often is just to ignore it. We go through it and that’s fine, but we ignore it because I think that juries for the most part don’t understand it.
Why I like the other tests, though, is those tend to be things that the average person can relate to, a person being able to stand on one leg or walk on a line, touch the tip of their finger to the tip of their nose. Those tests the average juror can relate to. Remembering, again, that going back to the walk and turn test, there are over 100 practical things a person can do wrong, two of which would indicate they failed. I like to have the average juror image they are doing the walk and turn and doing everything right except perhaps stepping off the line 1 time and not touching heal to toe 1 time and having the officer say that performance would have been poor.
The officers, particularly with the one-leg stand test and walk and turn test, are trained on how to testify. For example, if somebody steps off the line slightly to the left or right while doing the test, they’re trained to say the person fell off the line. I go, “Wait a second. You mean the person fell down?” “No, no. They fell off.” “Oh, you mean the person stepped off to the right slightly?” “Yes.” They’re trained to put their best spin on what the person did to as to make it sound the person did worse than they really did. Pointing that out to a jury helps.
With the walk and turn, for example, what I then like to do is go through how the person performed the test. “Did he take the 18 steps? Did he take 18 steps as directed?” “Yes.” “How many of those did he step off the line?” “None.” “How many of those did he use his arms for balance?” “None.” “How many times did he stop to steady himself as he was doing the test?” “None.” “Did he counter correct number sequence, meaning one through nine and then when he makes the return, one through nine again as opposed to 10, 11, and 12?” “Yes, he did that correctly.”
With the other tests I go through them, and I like to describe the totality as to how the person did, keeping in mind that accounting to the officer if two indicators are present, the person failed the conclusion of poor, but for the average person, that’s not poor. I also emphasize that it wasn’t done in a carpeted courtroom but rather on a city street with one, two, or three officers standing over them with a flashlight, at night and clearly a person is nervous while doing it.
Field sobriety tests, for the most part, unless they’re really bad, help the defendant. I like to then use those too, in a sense, try to impeach the breath or blood test results. As per Arizona law there’s a presumption if you’re .08% you’re impaired, and so I like to argue, “Well wait a second. This person’s performance calls into question the reliability of the breath or blood test results because the performance on there is certainly not consistent with somebody being impaired.”
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If the person refuses the field sobriety tests, we deal with that, but my feeling is unless a person does poorly on them, they help the case, and that’s why I like the field sobriety tests. Unfortunately the officers usually only do the walk and turn and one-leg stand test as a regular course, but when they have the other ones as well, it helps the case. The officer’s conclusion of the person having done poorly by the indicator of two or more cues undermines the state’s case because people want to see what the particulars are. The particulars, as a normal person would understand them, quite often run counter to a conclusion the person did poorly.
I like to think of it in my closing argument as the, “No Question Refrain”. My argument in the end is, “there’s no question based on how my client did the one-leg stand test, there’s, no question he had to have been impaired, at least that’s what the state’s argument is. Certainly his performance on the field tests performance would indicate otherwise”. There’s no question he had to be impaired, according to the state’s argument, but his performance would indicate otherwise. I go into the each of the particulars of what my client did and after each one come back to the No Question Refrain.
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