Author of "The DUI Answer Book" A Citizen's Guide to Understanding Your Rights

Page 13 of NHTSA Manual

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Patrick Silva:
Welcome back to the DUI Trial Lawyers Academy. This is your host DUI trial lawyer, attorney Patrick Silva.
Today we're going to discuss some of the basics of the NHTSA manual. That's the National Highway Traffic Safety Administration. Also, it can be called the National Highway Transportation Safety Administration. It depends on what literature you're reading, but we're going to talk about the cornerstone of the NHTSA manual. Now the NHTSA manual, the correct name, it's called DWI; Detection and Standardized Field Sobriety Testing Participation manual, or participants manual. That name is the full, complete name. If you're a DUI lawyer and you're in court, you're talking to other lawyers, we know it as just the NHTSA manual. Each manual has a student manual and has an instructor manual.
The officer that you have on the stand, he's going to be trained on the student manual. If you happen to subscribe to my curriculum on cross-examination of the arresting officer, you will have access to all 14 of the manuals dating back to 1980.
But when I want to talk about today is the cornerstone of this manual. The cornerstone of this manual is on page 13 of section 8. Page 13 of section 8. I'm referencing the 2015 NHTSA manual. Each different publication of the NHTSA manual is going to have a different page number, but it will still be located in section 8. But let's kind of go through what that is standing. In the following cross-examination sequence, what I did is I took the language from page 13 of section 8 and created cross-examination questions. Then I'll discuss each one. Why is it important? Let's go through it. "Officer validation of the standardized field sobriety test only applies when the test is given in the prescribed standardized manner." Isn't that true?
The reason that that question is important is that an officer in California has to give the field sobriety tests. That's the three different battery tests, the same as an officer in Florida or in New York and Missouri. That's what standardization means. It's taking one thing and doing it over and over and over. And McDonald's is a perfect example. If you go to a McDonald's in California, you're going to get a French fry. That is three eights of an inch in thickness, and it's going to be fried for a certain length of time. That procedure aka standardization is going to be applied to McDonald's in Korea, Hong Kong, New York City, Florida, Georgia, same thing all over. So that's what standardization means. You might want to follow up that question, "Well, officer in layman's terms, what I just asked you and what you disagree to is that you have to give it the same way as an officer who might be on the other side of the country."
Isn't that true? He might agree. He might disagree. He might say, I don't know, it doesn't make sense to me, but it's a follow-up question that allows you to get a little deeper into the questioning.
As a recap, the first thing that the officer must do is he has to administer the test in the same manner as any other officer and do it right. Now let's go on to the second part. "Officer validation of the standardized field sobriety test only applies when the standardized clues are used." Isn't that true? And again, this is on section 8, page 13. Why is that important? Because through your cross examination, and we'll go through it later in a different podcast, there's going to be different clues. The officer must know the clues and he must use the same clues. He can't make up clues and say, Oh, I saw this, this and this, and it's a clue.
So let's kind of go through the three tests on the filter, writing tests. There's three different tests that the officer's going to be looking for. He's going to use the horizontal gaze nystagmus that's called HGN. The next test in order of performance would be the walk and turn. And then the last test would be the one leg stand. Under the NHTSA guidelines, those are the three tests that should be used in a standardized field sobriety test battery. Each has its own clues.
So let's go through the HGN clues. The HGN has three clues, lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation and onset of nystagmus prior to 45 degrees. Those are the three clues three in each eye. The walk in turn I use mnemonic BS. So what that stands for the following clues.
There's eight clues in the walk and turn losing balance during the instruction phase, starting too soon, using the wrong number of steps, stepping off-line, walking is stopped, misses heel to toe, uses his arms and makes an improper turn.
The next test would be the one leg stand. There's four clues. The pneumonic is P-U-S-H. That stands for putting foot down, using arms, swaying or hopping.
The third thing that we're going to ask the officers, "Officer validation of the standardized field sobriety tests only applies when the officer uses the right standardized criteria to interpret performance." What does that exactly mean? Each of the clues has a way to interpretum. That means that's the criteria, that's a fancy word for. "How do you tell what you're seeing?" Let's kind of use a couple of quick ones; missing heel to toe. If the arrestee misses the heel the toe half-inch or last well, that's not a valid clue. And the officer says, "Well, he used his arms. They were out of by his side, out from his side." And if a person just stands normally their arms are going to be about two, three, four inches away.
Well, in order to see the arms away from sign as a clueless has to be six inches or more. So that's what the criteria means.
In a later podcast, I'm going to go through each of these and go through the criteria on each one. That'll be in a follow-up podcast where I devote special time just to one standardized field sobriety test at a time.
The fourth area that we're going to ask the officer is officer, "If any element is changed, the validity is compromised." And again, everything I've talked about so far is on section 8, page 13. Why is that last question? So important? Well, because if the officer changes the criteria, if he changes the way it's administered or he changes the clues, then basically what he sees is wrong. That's why that last question is important. Now let's put it in a layman's term because we're having a discussion with the officer.
He understands field sobriety tests, but you have twelve people, six people sitting in a box. They might not know what this discussion is. So let's kind of break it down into layman terms. "Officer, if we put this into simple language, you must give the test correctly. Isn't that true?" Of course, he's going to say, "You must use the correct clues. Is that that right? And you must use the correct criteria for each of those clues. Isn't that right? And if you change any of those three things in validation, your opinion could be wrong. Isn't that true?" So what we did is we just reemphasized it.
Now in closing, you're going to have this language up on a separate poster board and you'll be able to reference back in his testimony, say, "Well, I asked the officer, what were the standardized field sobriety test clues for the walk and turn, and he said A, B, C, this and that. However, we know that our expert, who is a CHP retired with 4,000 DUI arrests, she enunciated and told you what the correct clues were." And you're pointing back, that the NHTSA manual page 13 of section 8, requires that you do it right.
Then you could even make it simpler, "Officer to put it in even simpler language. You must administer the entire test correctly, or else your opinion that Mr. Smith is impaired may be wrong." What's he going to say? Yes? No? Now remember as cross examiners, we're listening for the answers to follow up. I just laid out 10 questions or less, but when you go through this section on cross, you might have another five, ten questions that you ask, because let's say the officer's coming across as sympathetic to the juror. You might follow up with the question that sets in like this, Well, officer, you know and you just admitted that he didn't know the test correctly. You didn't entirely tiredly give it correctly, but you now know the correct clues, right?" "Yeah." "Well, officer, if you knew the correct clues at the time that you gave the field sobriety test to my client, Jose Cuervo, would you have used those correct clues?" That's a great question to ask at the end, because now he's admitted that I don't know them, but if I did know them, I would have used them. Great area of cross.
This is going to conclude our discussion of page 13 of section 8 of the NHTSA manual. This is DUI trial lawyer, attorney Patrick Silva. Now put on the boxing gloves, climb onto the ring and have great battle. Over and out.

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