For anyone who has crossed a cop regarding the validation studies, you know that some judges will let you do it and some will cut you off early on. Another way to prevent this is to provide the studies to the witness in advance of the hearing, but this is not without its pitfalls. The studies, especially the abstracts, speak as though the field tests are infallible indicators of BAC and a prosecutor can find their fair share of gems to bring out if they actually read them. I propose a different approach.
At a motion to suppress hearing, I often start with the officer on how bloodshot glassy eyes and flushed face are not reliable indicators of DUI from the 1997 study by Jack Stuster entitled The Detection of DWI at BAC’s Below 0.10 using the paragraph on page E-10. I start with that study because I have used it before and the judges and officers are used to hearing about it. If I do it once, we establish that rules of evidence don’t apply at a motion hearing (State v. Edwards, 107 OhioSt.3d 169, 2005-Ohio-6180) and rather than have a big discussion about it, the court concludes that it goes faster to just let me ask my few questions and get it over with.
To attack the Walk and Turn test, I use a different study and it works best in cases where the client did relatively well on the One Leg Stand. In that case, I need to focus on the Walk and Turn and try to set up the officer for trial. To do this I can say, “Isn’t it true that most people under the legal limit fail the Walk and Turn?” When the officer says no, I show him the validation study entitled, “Validation of the Standardized Field Sobriety Test Battery at BAC’s Below 0.10 Percent” from San Diego in 1998. This is a good study to use because the manual instructs officers that, "This is the most current research used the describe the accuracy of the SFSTs" (Session 8, Pg. 16) and the instructors of the SFST course are told to "Emphasize this is the study that should be referenced in court whenever possible." (Instructor Guide, Session 8, Pg. 16) In addition, if the officer was trained on the 2009 version of the 2006 manual, the exact matrix was included in their manual in an appendix. Of course, the 2018 manual removed the arrest decision slide, explained below, that followed the same format, but they still instruct officers to reference the San Diego study over all others.
With the decision matrix in front of the officer I have him state that 76 people who were under the legal limit were tested and 40 of those 76 failed the test by exhibiting two or more clues on the walk and turn. At that point, the study can be put away. I could continue with the officer at the motion hearing or wait for trial to have the officer confirm that the manual teaches him that tests that are difficult for a sober subject to perform have little or no evidentiary value. (Session 7, Pg. 15)
Despite these changes to the manual, at trial, I can ask the officer some of the same set up questions on validation studies and what his training teaches him. Then simply say, “You aware that the study your training tells you to rely on the most demonstrated that most people under the legal limit fail the walk and turn.” If the officer denies it, the transcript from the motion hearing can be used to not only bring out the point about how the Walk and Turn causes sober people to be arrested but also make it look as though he was trying to hide it. If he agrees that most people under the legal limit fail the walk and turn, I can move on to how the manual that states that tests that are difficult for a sober subject to perform have little or no evidentiary value.
Once I have both parts in, I can change the subject entirely and save the rest for closing argument. In closing, I can explain to the jury how the NHTSA Manual, the bible of DUI investigations, tells you that the Walk and Turn test has little no evidentiary value and it is unfair for the State to use it as evidence of DUI when most people fail the test sober.
Attorney Joseph Hada