Winning with Cross Examination in DWI Cases

Winning with Cross Examination in DWI Cases
By: Charles J Alexander, II
Morrow Alexander Porter & Whitley, PLLC
3890 Vest Mill Road
Winston-Salem, NC 27103

Those of us that are substantially involved in DWI litigation have now had over two years to study, interpret, and generally work with the new legislation which became effective December 1, 2006. Many questions still remain unanswered. Each time the legislature meets they attempt to legislate over defenses that have been developed under this law. Officers are beginning to more frequently use the search warrant provision for taking the blood from your clients when they exercise the right to refuse the breath test. More officers are becoming trained as "Drug Recognition Experts" which allows them to opine as to your client's impairment and the source of same when the results of the Alco sensor are below .08. The new statute also places a tremendous burden upon the defense should they wish to question the results of the EC-IR-II breath analysis by forcing us to make a preliminary showing to the judge of their need for the presence of the BT operator in court. This affidavit usually becomes a educational tool for the operator prior to his appearance and testimony. I bring all of this to your attention at the beginning of this paper, for I have come to the realization that the battleground in successfully representing those accused of DWI is in the pre-trial motion phase as well as the trial of refusal cases.. I believe that many of the cases that are being won under the new legislation are results of effective cross examination of the arresting officer.

A well-planned and effective cross examination is critical in DWI cases. Oftentimes, the defendant does not take the stand, either because he does not clearly remember the facts, or his prior record prevents him from testifying. Therefore, many DWI cases are won (or lost) with the cross examination of the officer, either at the suppression hearing or during trial.

A successful cross examination of the officer starts with good preparation. When you are first retained in the case, immediately file discovery motions and Brady motions to obtain every bit of material you can. You may also want to consider filing motions to produce videos, either from the officer's car or the detention facility where your client was taken. In North Carolina, we are severely limited in our statutory discovery rights in a DWI cases; none exists for a misdemeanor at the present time. Nevertheless, the new law effective December 1, 2006, contemplates the filing of numerous motions throughout the preparation of the case. This has resulted in most District Court judges, whom I have appeared in front of, mandating discovery. Filing an effective discovery and/or Brady motion early in the case is also a good way of getting that second continuance when the State does not comply prior to the trial date.

After you have gathered all the material that is available to you both through voluntary discovery, or other means, develop and plan your cross examination based upon the information furnished. Generally an effective cross examination will start with generalized material and proceed to specific ideas. Do not use a "scatter gun" approach. The judge is less likely to listen to your salient points, if you are attacking everything coming out of the officer's mouth.

Each one of you will have a different manner of cross examination that fits your individual personality. It is important that you try not to imitate another lawyer's style if it does not fit your personality. Firstly, and most importantly, you need to feel comfortable with the approach you take on cross-examination of the witness. Generally, I have found that the "scorched earth" approach to cross-examination is not going to be as productive in the long run, as a calmer, more reasoned approach to questioning the officer. However, this approach may be warranted in situations in which you believe the officer is trying to deceive the court, withhold evidence, or deliberately twisting the facts. Whatever the style, make sure that you are well prepared and knowledgeable about the points you are trying to make during your cross examination.

The effective DWI defense lawyer must be the most knowledgeable participant in the trial. How do you become this person? First of all you must educate yourself. By this I mean you should set about a course of conduct in which you take the same courses or more advanced ones than the officer has taken. The National Highway Traffic Safety Administration (NHTSA) has developed three standardized field sobriety tests- Horizontal Gaze Nystagmus (HGN), Walk and Turn (W+T), and the and One-Leg Stand (OLS). These are the only three tests, at the present time, that have the scientific research linked to identifiable cues observed during the administration of each of these tests. If you really desire to be effective in your defense of DWI clients you should consider obtaining NHTSA training and certification in the standardized field sobriety tests. Along with the training and certification you will be provided with manuals which will be an invaluable resource for the specific standardized manner of performing these tests. These manuals are also quite helpful during the cross examination of an officer; especially, if he testifies that he recognizes the manual and has read it during his training. We will discuss these tests at length later in this paper.

The next piece of armor you will need for your battle with the DWI dragon is certification on the EC/IR-II. Notice I did not say the Intoxilizer model 5000. As of the writing of this paper, the EC/IR-II has now replaced the Intoxlilyzer 5000 model in North Carolina. Certification courses for the EC/IR-II are beginning to be offered across the United States. If you are serious about becoming an effective DWI lawyer you should attend one of these courses and obtain your certification. Information about courses being offered can usually be obtained from the National College of DUI Defense (www.NCDD.com). This is an excellent organization, nationally based, if you like rubbing elbows and sharing ideas with the best DWI lawyers in America.

The third piece of armor you should equip yourself with is the complete and thorough knowledge of the Alco-Sensor and the newer FST, both of which are made by Intoximeters. You need copies of the manuals for both these machines. At the present time, many of the law enforcement use one of the models of the Alco-Sensor, however I have seen in recent months, many of the departments around Winston-Salem and Statesville are using the FST, which is the newer model of the Alco-Sensor. In any event, you need the manuals of these machines to effectively cross examine an officer or attempt to exclude his use of the machine during the arrest of your client. The use of alcohol screening tests is governed by N.C.G.S. 20-16.3. This statute sets out the situations in which alcohol screening tests may be required; the approval of the screening devices; and the manner of their use can be read in conjunction with Chapter 10 of the North Carolina Administrative Code, which sets out the approved devices and their accepted manner of use. Having extra copies of the administrative code with you during cross examination is often an effective tool as it can be used to possibly refresh the officer's memory while at the same time educating the court that there are in fact rules and regulations regarding portable breath testing.

In order to be most effective in the cross examination of the officer you need to have a working knowledge of the applicable case law. For instance, North Carolina court of appeals recently recognized the 24 DWI detection cues taught by NHTSA in State the Bonds, 533 S.E. 2D 855, 149 NC app. 627 (2000). They are set forth below:

You may note that speeding is not a DWI cue. Educate your judges about State v. Bonds. NHTSA teaches that there are three phases of DWI detection: vehicle in motion; personal contact; and pre-arrest screening. Using these three phases generally provides a good outline for an organized cross examination of the officer. During the vehicle in motion stage, which is the majority of the cases, the officer would testify as to the driving mannerisms that he observed prior to his making the decision to stop the car. In cases in which your client is stopped for speeding the effective use of Bonds may plant the initial seed of doubt with the presiding judge.

Although the framers of the new DWI statute would like to do away with reasonable, articulable suspicion to stop, they have not been successful. In North Carolina we still have a good case law definition of what constitutes reasonable, articulable suspicion to stop. See State v. Battle, 109 N.C. App. 367 (N.C. Ct. App.1993.) The court opined in the Battle case:

A police officer may conduct a brief investigatory stop of a vehicle, even though there is no probable cause for the stop, when justified by specific, articulable facts, which would lead a police officer to reasonable conclude in light of his experience may be afoot. Battle also provided "these facts and inferences must show a substantial possibility that criminal conduct has occurred, is occurring, or is about to occur."

When cross examining the officer have in mind this definition when pointing out the weakness of the stop. Note that the Bonds case talks about a brief investigatory stop. When justified by specific articulable facts. This definition also talks about experienced police officers. So if you have an officer who is a rookie in training you may want to cross examine him about his training and experience in light of the Battle definition. When formulating your questions for the officer during a motion to suppress a Terry stop, keep in mind the applicable case law as it may pertain to your particular factual situation. For instance, in a weaving case, you may want to consider State v. Watson, 122 N.C. App. 596 (1996). If you have a case in which you consider your client's driving to be normal and believe the reason for the stop is because the officer may be "hyper-sensitive", in looking for suspicious driving mannerisms you want to consult State v. Roberson, 163 N.C. App. 129 (N.C. Ct. App. 2004).

The new DWI law effective December 1, 2006, attempted to gut the seminal case for check points in State v. Rose, 170 N.C. App. 284 ( N.C. Ct. App. 2005). Rose is an excellent case to read and be very familiar with, as I believe it still has applicability. Should also see State v. Burroughs, 648 S.E.2d 561 (N.C. Ct. App. 2007), and a more recent case on check points, State vs. Veazey, 662 S.E.2d 683 (N.C. Ct. App.2008) which has a very good discussion in this whole area and it definitely revives Rose.

Some times the officer's stated reason for the stopping of your client is his mistaken belief that he has violated a law i.e.: broken tail light, no license plate light, or the mistaken belief that he is in a speed zone other than what he is as in State v. McLamb, 649 S.E. 2d 902 (N.C. Ct. App. 2007). McLamb is an excellent discussion and reminder that North Carolina does not recognize the good faith exception State v. Carter 322 N.C. App. 709 (1988). Even the judges need to be reminded that there is no good faith exception to the exclusionary rule in North Carolina. McLamb, a 2007 case, reiterates this and should be used in applicable situations. The recent case of State vs. Styles 362 N.C. 412 (2008) opines that the standard for the stop should be reasonable articulate suspicion not probable cause, however, this change, to the extent it is a change, should have little effect in a case of the mistake of law by the officer.

The second phase of DWI detection deals with personal contact. Of course you will never get to this portion of your cross examination if your cross examination and motions regarding the stop have been successful. Having said that we all know the realities are that you will be able to win only a few of your cases at the initial phase of the stop. Therefore, the effective cross examination of the officer's personal contact with your client is imperative. In order to understand how to effectively cross examine an officer about this phase, the defense lawyer, needs to be the most knowledgeable person in the courtroom regarding the personal contact phase.

NHTSA teaches two major evidence gathering tasks and one major decision during the personal contact phase. A well trained officer should approach, observe and view the driver while he is still in the vehicle, making the note of the presence of the following cues:

When cross examining the officer about these cues, accentuate the positive. In other words, point out through cross examination the cues the officer did not see, hear, or smell.

The second task involved in the personal contact phase in DWI detection is that of pre-exit divided attention sobriety test. This phase involves the administration of pre-exit sobriety test in order for the officer to gain additional information regarding the driver's impairment. This technique involves the officer asking divided attention questions as well as interrupting or distracting questions. For instance a divided attention question would be for the officer to request the driver to produce both his license and registration; or does he produce documents other than those requested? Does the driver fail to see his license or registration while searching through his wallet? Does he fumble or drop his wallet or the license, or is he unable to retrieve the documents at all? When the officer asks interrupting questions, does your client ignore the question and concentrates only on production of the document? Again, remember this phase is another chance for you to accentuate the positive by knowing and understanding what the officer should be looking for. On cross examination, you can elicit all of the things your client did correctly, which will lead to an argument to the court that your client did many more things correctly than incorrectly during this phase. After this interaction with your client in the car, a well-trained officer then should make the decision as to whether or not he should ask the defendant to exit the vehicle. Usually this is an excellent ground for cross examination. The officer should be observing the manner in which your client exits the vehicle. Does he have to lean on the door? Lean on the car? Or still worse, lean on the officer, or does he exit correctly? Does your client need anything for support as he walks from his car to the designated area the officer has asked him to go to? When your client walks from point A to point B, does he walk in a normal fashion? Is there noticeable sway? Is there difficulty walking? Is he slow to respond to any of the officer's questions? During this phase, does the officer say anything about his speech? Is there any part of his speech that the officer says was unintelligible? Remember, accentuate the positive. For at the end of the day you will be arguing to the judge that the lack of these cues equals the lack of impairment.

Phase three of NHTSA DWI detection is pre-arrest screen. During this phase a well trained officer should proceed with two major evidence gathering tasks and one major decision. The two tasks are: (1) administration of three scientifically validated psychophysical (field) sobriety tests, and (2) administration of the preliminary breath tests. At the end of this phase, the major decision is whether to arrest or not from all of the evidence gathered during all three phases.

Phase three is usually the most fertile area of cross examination for the skilled DWI defense attorney. In order to be effective in cross examining the officer you must be the most knowledgeable person in the court room regarding the proper administration of the standardized field sobriety test, note I emphasized "standardized". For these tests to have validity, they must be administered in a prescribed standardized manner (see section VIII of the NHTSA manual, page 19.) The best way to achieve the superior knowledge is to attend and complete NHTSA approved courses in standardized field sobriety testing. You become certified in these tests and the word will quickly spread that you have superior knowledge to the vast majority of officers that you will be cross examining. By fully understanding the correct and standardized way of performing the three field sobriety tests you will be able to more effectively cross examine the officer. This cross examination will often times provide a basis for suppression of these tests by the court. I have provided below the instructions for all three tests.

The instructions for the Walk-and-Turn test are:

Eight clues for walk-and-turn test:

When your client does well on the field sobriety tests, again, accentuate the number of clues he did correctly, keeping in mind if your client steps off the line one time or five times, it is only one clue. If he raises his arms one time or five time it is still only one clue. You may also want to question the officer about how many clues there are in this test and what they are in order to demonstrate his lack of knowledge about the tests he is using to arrest your client.

The next test that will be given by a well trained officer is the One-Leg Stand. Again this test has specific, standardized instructions as to how it is to be conducted.

Instructions for the One-Leg Stand are:

Four clues to the One-Leg Stand Test:

Using the same approach to cross examination as you did with the Walk-and -Turn test. point out the things that your client did correctly and question the officer about his knowledge of this test. For instance, did he give your client the choice of feet to raise? Did he inquire as to any problems with their legs prior to giving the tests? Did he instruct the client as to the correct level that the foot was to be raised? Does the police officer know how many clues there are to the One-Leg Stand test?

The third and final approved NHTSA test is the Horizontal Gaze Nystagmus test. If correctly administered this test is the most accurate of the three standardized field sobriety tests. However, until recently this test was almost never admitted into evidence because of State v. Helms 127 N.C. App. 375 (N.C. Ct. App. 1997) which held the HGN test to be inadmissible unless the State laid a proper scientific foundation for it. The new DWI law attempts to bypass Helms and allow for the officer's testimony without a scientific foundation. If you will become well trained in the proper administration of this test, it will be the most fun you have had in the courtroom in a long time. For, many officers have no idea regarding the proper administration of the Horizontal Gaze Nystagmus test.

The proper administration of the Horizontal Gaze Nystagmus test is extremely precise and complicated test that goes beyond the scope of this paper, however briefly stated, a properly administrated Horizontal Gaze Nystagmus test should start with an officer holding a stylus 12 to 15 inches slightly above eye level and asking the client to follow this stylus with his eyes without moving his head. A properly administered test will have no less than seven passes. Before giving this test, the officer should observe the pupils for a difference in size and then make one pass of the stylus to observe equal tracking of the eyes. If either of these clues presents themselves, then the test should not be given for there may be head injury. If the officer does not observe either one of these clues then he may proceed with the administering of the three tests involved with the Horizontal Gaze Nystagmus test. The first thing the officer should do is pass the stylus from his right to his left two times. On these two passes, the officer is looking for a smooth pursuit of the eyes as they follow the stylus. The second test involves the officer again making two passes. On each of these passes he is observing the angle at the onset of the nystagmus, i.e. if there is onset of nystagmus prior to 45 degrees then this is a clue of impairment. On the third test the officer passes the stylus and holds it at an extreme position to the right and then to the left on two occasions each time looking for sustained and distinct nystagmus for at least four seconds.

Of course there is much more detail to this test; and, upon receiving proper training you can readily see this is a very fertile source of cross examination. For instance, in the case where a video has been obtained from the officer's car and the tests are done on video, one can readily observe whether or not there have been seven passes done. If not, the test has been done incorrectly, regardless of what the officer observed. There are many questions that can be asked of an officer about the 45 degree angle and how that was determined. Many officers do not know that they must maintain distinct and sustained nystagmus for at least four seconds. Again a video of these tests may be very revealing. Successful cross examination in this area of the trial requires education and preparation. At this stage of the cross examination you are most likely attempting to convince the judge there was not sufficient probable cause to arrest your client. You have probably already argued to the court about your client's driving if you have objected to the stop of the vehicle, so at this phase you should be accentuating to the court all the things your client did correctly and the clues that your client did not present. At the same time you generally have an excellent opportunity to show the training, or lack of training possessed by or given to the officer. To further drive home this point, you will want to have in the court-room the NHTSA manuals as well as the North Carolina version of the NHTSA manual published by the Department of Justice. This manual is the one that may be recognized by the police office. During the cross examination, show the officer the manual and ask him if he recognizes it. If he does not recognize it, then you have made your point. If he does, then you can use it in further cross examination concerning the manner which he administered the test to your client during the day in question. Another interesting exercise in the defense of your client is to issue a subpoena duces tacum to the officer requesting that he bring his manual. Most officers do not have their own manuals. Again, stake the officer out as to his qualifications. If he indicates to you that he is NHTSA trained, then pull out the manuals, show them to him, and determine how much he remembers about his training.

The second major evidence gathering task set up NHTSA's standards is the administration of the preliminary breath test (PBT) or commonly called the portable Alco-Sensor. One of the few "bones" thrown to the defense with the advent of the new DWI law was that the results of the Alco-Sensor are no longer admissible for any purpose in a DWI case. The officer is restricted to testifying whether or not he received a "positive" or "negative" result. The definition of these terms are left undefined in the statute, leaving the defense counsel the logical argument that negative means "none", so positive must mean "some". Of course the State will argue that positive means .08 or greater. In any event, NHTSA indicates that the proper use of the PBT is only for the determination of the type of impairing substance i.e. if a positive reading is gathered then alcohol would be the source of the impairment as opposed to drugs, etc.

If you wish to suppress any testimony regarding the results of the Alco-Sensor, then you should consult N.C.G.S 20-16.3 as well as the North Carolina Administrative Code 10A N.C.A.C. 41B.0502 et seq. By reading these two statutes in conjunction you learn that the officer has to have reasonable grounds to believe (a) that the driver has consumed alcohol and (b) he has committed a moving violation or been involved in an accident before you can even ask him to take a test (N.C.G.S 20-16.3(c)). A careful reading of 10 N.C.A.C 41B.0503 indicates that only certain devices are approved to be used within this State and they can only be used when the device has been shown to be properly calibrated. These statutes further go on to direct the officer to make sure the oral cavity is void of food, drink, tobacco, chewing gum, etc.; and, in the circumstance in which a client offers, that he has had a recent drink, the officer is required to wait 15 minutes before offering the initial alcohol screening test. Remember the NHTSA manual directs that the PBT result should never be used to indicate the level of the suspect's impairment. The PBT is only one of many factors the officer considers in determining whether he should arrest. It should never be the sole basis for an arrest (see page 7 of the DWI Detection and Standardized Field Sobriety Testing participant manual, U.S. Department of Transportation (2002).)

We have now completed a very detailed discussion of the three phases of DWI detection. This hopefully will lend a good structure for developing and planning an effective cross examination in this area. Always remember, accentuate the positive. Point out in your final argument to the court all of the good things that your client did. Was he cooperative, polite, well-mannered, well-dressed, in control of his faculties? Was he able to do the little things such as recall phone numbers from memory and communicate in a clear and cogent manner with relatives or friends. Was he able to get in and out of the patrol car with his hands cuffed behind his back? Did he walk normally when asked to walk normally (not heel to toe). At the end of the case, list all of the things that your client did well and then argue to the court that either this does not constitute probable cause to arrest your client, or in the case of a refusal, that it is certainly not proof beyond reasonable doubt that your client is guilty of the offense charged. Remember there is no substitute for education and preparation in these cases. Luck is when preparation meets opportunity. Good Luck.