First Contact
Posted on Aug 28, 2011 7:40am PDT
A recent theme of these blog posts has been that if the prosecution is emphasizing the facts which point towards guilt, common sense says the defense should be emphasizing the facts which point towards innocence. Yet in a DUI trial, this is often overlooked; the defense attorney focuses so much on undermining the prosecution's evidence that defense evidence can be ignored. Several examples have been discussed. Another is the officer's initial contact with the driver.
The DWI Detection and Standardized Field Sobriety Testing Manual ("the Manual") is published by the National Highway Traffic Safety Administration (NHTSA). It is the bible of police training for DUI investigations. All officer training is from or based upon the Manual; all officers know this, and know that it is authoritative (although occasionally, especially in outlying counties, you will find one who tries to lie and claim, "I've never heard of it.").
The Manual indicates that the officer should continue to carefully observe the driver during the officer's initial interaction with the driver "to note any face-to-face evidence of impairment." Of course, officer safety provides another powerful motive for the cop to carefully observe the driver during this time. So it is hard for the cop to get away with saying that he wasn't paying enough attention to notice things.
This can be a useful area of cross-examination, and an experienced Phoenix DUI attorney will use this to your advantage. For example, the officer will testify that alcohol can impair fine and gross motor skills, and that he's trained to look for evidence of such loss. I can then ask such questions as:
You asked the driver to lower the window?
He responded to your request immediately?
He immediately moved his hand towards the button/crank?
You were watching his hands for officer safety?
His movements were normal?
He pressed the button/operated the crank
Did so normally?
No evidence of loss of fine motor skills?
Or gross motor skills?
Not even to the slightest degree
And you're trained to notice that?
I use a similar approach to emphasize that the driver had no problem turning off the radio or looking the officer in the eye.
If you are facing DUI charges anywhere in the Valley of the Sun, you should contact us right away for a free consultation. We can help.