According to experienced criminal lawyers at Culshaw Miller, the arresting officer’s testimony in any DUI case can be devastating. It’s important to mitigate their impact to achieve desirable results at trial. The following tips are easy to set up and inexpensive and will hopefully achieve their goal of bringing balance to the arresting officer’s testimony.
- The Walk and Turn Test: A DUI arrest can be the most stressful point in a person’s life. The impending cost and possible incarceration are enough to make anyone a basket case. As such, the entire event will tend to evoke extreme anxiety in any defendant and, in turn, cause their bodies to function abnormally. This is particularly true with the so-called “Walk and Turn” Test, where the motorist must keep his arms at his side, walk heel-to-toe for a certain distance, make a turn, and then walk back to the officer. The test is not done correctly if the person uses their outstretched arms for balance. The key is to ask the officer whether “nervousness” is considered when failing a motorist on the Walk and Turn test. The officer will likely respond that nervousness is not taken into account; the test is the test, no matter what the emotional state of the motorist is. Next, ask the officer if he were to suspend a two-by-four between two ten-story buildings and then attempt to walk across it whether he would outstretch his arms for balance. If he’s honest, he’ll say “yes”. If not, he’ll say no, and the jury will disregard his testimony completely.
- The Tennis Ball Test: The type of ground and any slant to the pavement or surface is an essential factor in any walking or standing sobriety test. It may be advisable to take a tennis ball and go to the scene of the test and video the ball rolling one way or another to demonstrate a marked slant in the pavement. The key with the officer will be committing him to the idea that it is critical to administer the tests on level payment for the balance to be accurately reflected. Give him hypotheticals of how unfair the test would be given an uneven or slanted surface. Then, you can submit the tennis ball video when presenting the defence. Ideally, this video will show a person with their finger on top of the tennis ball, and when the finger is lifted, the tennis ball will immediately roll along the slanted surface.
- Let Dr Scholls Testify: If there is testimony that a person failed the Head-to-Toe test only by stepping off the line once and failing to go heal-to-toe first, buy a half dozen packages of Dr. Scholl’s shoe inserts (they come two to a pack). Colour two of them red. Then, place them in order using the red inserts to show the two places where the motorist “failed” the test. The jury will see that in the grand scheme of things, given the stressful nature of the environment, your client passed the test.
- The Two Ounce Demonstration. This technique should be used when there is testimony that the motorist only consumed 2 ounces of alcohol. An example might be two drinks of 70-proof liquor, each drink containing one ounce of alcohol. Use a one-quart, clear mearusing cup that shows ounces on the side. Colour some dark blue water with food colouring. Take the coloured water and pour it into the measuring cup. It will barely register on the bottom and seem miniscule. The prosecutor may object, but your response should be that the cup is for demonstration purposes only and will not go back with the jury.
Using these techniques effectively in the courtroom can go a long way toward impeaching an arresting officer’s testimony.