DUI Defense Strategies (cont’d.)
Once a DUI lawyer has evaluated the strengths and weaknesses of any horizontal gaze nystagmus test performed by a DUI police officer, the next exercises likely to be evaluated is the “walk and turn.” It is important to note that a DUI police investigator has a number of different field sobriety exercises he/she can make use of. However, most cases involve the use of the same three or four basic exercises. Similarly, most DUI cases involve the use of the same exercises in a specific sequence.
If your DUI case does not include any of these exercises or your exercises were performed in a different sequence, there is no reason for alarm. The law does not require the DUI officer to include field sobriety exercises in any DUI investigation and it is simply a matter of officer preference when it comes to the way exercises are ordered and when it comes to which exercises are include in the investigation.
In any event, most DUI police officers will ask a DUI suspect to perform the “walk and turn” exercise after competing the horizontal gaze nystagmus test.
A DUI lawyer’s evaluation of this part of your case will begin with a review of the police officer’s report. In most DUI reports, the officer will explain in great detail the exact field sobriety exercises included in the DUI investigation. Most importantly, a DUI lawyer is looking at the report to read the officer’s detailed description of how well or poorly his/her client performed.
When a DUI lawyer reads the officer’s report, he/she is first considering the nature of the exercise being performed. When it comes to walk and turn, there are three distinct types of clues DUI investigators look for.
First, the DUI police officer will instruct the person to stand facing the officer with the suspect’s arms casually hanging at his/her sides. At this point the officer will do two things: 1) he/she will begin by giving the DUI suspect specific instructions on how to perform the walk and turn exercise; and 2) the DUI officer will casually observe the suspect to for any physiological or psychological signs of impairment. For instance, the officer will look for the following:
- Is the suspect able to maintain his/her balance?
- Does the suspect sway side to side or front and back?
- Does the suspect fall over or stumble?
- Does the suspect have difficulty paying attention?
- Does the suspect have trouble keeping his/her eyes open?
- Does the suspect doze off?
- Does the suspect act inappropriately?
- Does the suspect act overly emotional?
- Does the suspect act belligerently?
- Does the suspect interrupt the officer?
- Does the suspect appear lost or disoriented?
If the DUI officer makes any of the above observations (or any others that may be consistent with impairment), then he/she will likely make a note in their report. For example, it is very common for officers to note that the suspect was “unable to maintain the instructional position” and swayed side to side.
Before I delve further into this discussion, I wanted to take a tangent to explain the DUI officer’s perspective as an investigator. When an officer pulls someone over, whether for a traffic infraction or suspicion of DUI, he/she likely has not formulated any opinion as to impairment.
Sometimes drivers are distracted by texting, screaming kids, a great song on the radio, or they may be having a health related problem. However, once an officer pulls you over and he/she smells the odor of alcohol, sees red/bloodshot/watery eyes, and you admit to having a beer or two, you automatically become suspect.