Sunday, July 8, 2012

New York DWI Defense Means Holding the Police to Higher Standards



In my DWI defense practice over the years I have cross examined numerous police officers, state troopers, and county deputies. This occurs at administrative DMV hearings, Court suppression hearings, and trials. To cross examine anyone is both an art and a science. It is a way, a tool to get to the truth. The truth of what they did or did not do, what they saw or did not see, and what, if anything is in dispute or disputable. Challenging their investigation is a good way to test the waters,

If law enforcement is to do their job at a higher level then I am there to hold them and their procedures to a higher standard. Standards are more than a word, it is a term of art in DWI defense because they are NOT just called the Field Sobriety Tests, they are in fact the "Standardized" Field Sobriety Tests. 

Testing for sobriety has been around for many decades but "standardized" testing began in earnest in the 1970's. Dr. Marcelline Burns was commissioned to come up a battery of easily applied tests that could quickly and accurately gauge a motorist's sobriety at roadside. The final battery of three DWI tests she and her research team came up with are:

1. The walk and turn
2. The one leg stand
3. The horizontal gaze nystagmus test

I have a transcript from a colleague, Bruce Kapsack, a prominent California DUI lawyer who deposed Dr. Burns concerning these DWI tests. I paraphrase Dr. Burns, "if the tests are going to have meaning and be objective measures then they MUST be administered in a STANDARDIZED way."

Standardized means testing done the exact same way every time.
Standardized means using specific criteria.
Standardized means using standardized instructions.
Standardized means specific scoring.

These are still the same exact sobriety tests for the past 35 years.  They are used in all 50 states. They have to applied, administered, instructed, directed, and scored in a specific manner, hence the term STANDARDIZED. Have I made it clear yet that the police can't willy nilly say do 10 steps instead of 9 steps or hold this position for 40 seconds instead of 30 seconds. The criteria are specific.

As to officer training, the SFST manual states:

"Upon completion of the training the candidate must demonstrate the ability to administer the SFST's in the approved sequence and appropriately document and interpret the results."

Why Must We Have Proper Police Administration?

"It is necessary to emphasize this validation applies only when the tests are administered in the prescribed standardized manner. The standardized clues are used to assess the suspects performance, the standardized criteria are employed to interpret that performance. IF any one of the standardized field sobriety test elements is changed the validity is compromised."
(P.VIII-19, SFST student manual, HS 178 R9/04).

Validity is COMPROMISED!  So the tests become invalid and hence the results from the tests invalid.
So maybe we really have sobriety, a sober person because the tester did not follow protocols?


Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

607-229-5184