http://www.ruaneattorneys.com/dui

4. What are some of the things an officer
might say leads him to think a person is
under the influence?

10. PROBLEMS WITH SFSTS
HGN administered using chin rest but not done in field in first study
Single set of data used to determine criterion score
Tests are not age and gender neutral
In the lab, officers were monitored to confirm accurate administration
Actual results varied by the time of day but scoring did not account for this
The obesity epidemic had not fully hit America
NOT PEER REVIEWED!

11. WHAT IS NEGATIVE SCORING?
How do we address it?
!
Bring it up in Voir Dire!

12. VOIR DIRE IN DUI CASES
DISTINGUISH THE PER SE/COMMON LAW CASE
LOOK FOR PRIOR FAMILY NEGATIVE INTERACTION
DON’T LOOK FOR PERFECT JUROR - LOOK TO
ELIMINATE ATTILA THE HUN

13. THINGS YOU CAN ASK &
THINGS YOU CAN’T

14. HOW DOES THE STATE
PROVE A DUI?
Driving
Stop
Contact
SFST
Arrest

15. 4 TYPES OF WITNESSES
State Police
Toxicology Experts
Local Police
Chemical Test

16. CROSSING STATE TROOPERS
• Get
them out of uniform (no guns in courtroom)
• they
have universal standard of training (get training records and
curriculum)
• they
can be impeached by other troopers (if you know how to
ask them questions)

17. • The
SFST Manual isn’t just
about SFSTs!
• Manual
is called “DWI
Detection and SFST”
• The
information in the manual
is EVERYTHING a police
officer learns about DUI

18. • Establish
this isn’t First DUI arrest – officer knows what A44 is expecting him to report, so he only
looks for those things
• Establish
officer didn’t take notes during the SFST administration. “Officer, can you tell me the third
question I asked you today?” Trained to remember things, without notes does he remember
questions today? Make sure to set him up, though, and remind him how important his testimony is at
the beginning, etc.
• Alphabet Test. Ask
for validation studies which show the alphabet is an effective test. They were not
trained in it at the academy
• Don’t
cross examine in order of arrest. Close with all the behavior which was not indicative of
alcohol consumption
• Larry Taylor’s
ultimate question: Given the clients performance on the Field sobriety tests, if she had
taken a Breath Test which gave a 0.00 result, would you have let her drive off?

19. Officer Jones Supplemental Report
Officer Jones

20. CROSSING LOCAL POLICE

21. • Examine
the A44 and Narrative. Make sure the “clues” match up - check directions on
street for sloppy police work.
• Develop
the Weather conditions/time of day (Bias of Officer)
• Develop
Physical Condition of Client upon Stop (did you ask him how long he had been
sitting in his car? Do you know my client play professional football for the Patriots and has
horrible knees?)
• Develop
the Officer often pulls people over at night and sees bloodshot eyes etc. so he is
predisposed to DUI.
• Establish
lack of Independent recollection - only writes down incriminating facts (didn’t the
client pull the car over properly, put the car in park, roll down the window, etc.)
!

22. • No
universal training
• Try
to interview them before trial - certified letter
• Rescoring
the Field Tests for them

23. BREAKING DOWN THE
WALK AND TURN
Every Little thing becomes something important

26. • Team
• Tells
player - For their team
the state what to ask him and what NOT to ask
him
• Always
wants to “explain” on cross examination
• professorial
in demeanor - appears to be unbiased

27. • Short, Single
• Up
fact questions
front, get him to agree to answer Yes or No

28. • Ask
if it can be answered “Yes” or “No”
• Withdraw
Question and rephrase
• Put
up your hand to stop him
• Ask
Judge to Instruct him to answer just your question
• Ask
him if answer is “yes” or “no”
• Sit
down and wait, then ask the question again

29. Powers: Machine Underestimates by 10-12%
Partition ration arbitrarily set at 1:2100 by machine
True definition of 1:2100
The higher the partition number, the lower the BAC
2400-2100=300
300/2400=1/8=12%

30. Individuality
Articles have seen ranges from 1:900 to 1:3700
those are in people with “underlying pathologies”
Machine is based on 1:2100
ALL DEFENDANTS ARE NOT 1:2100
Results may be accurate if Client is 1:2100
Powers NEVER knows the client’s partition ratio
If you ask no other question: ask him this!

31. Alveolar Air
Regulation expects Alveolar air to be tested
Powers can’t tell you how long a person has to
blow to get to that portion of lung air
(hint: you cannot get just alveolar air....ever)

33. How Alcohol Gets into the Bloodstream

34. How the Draeger Machine Processes a Sample
8
7
5
4
1
0.08
Gas Solution
6
3
2
9

36. FOR A BREATH TEST TO BE VALID YOU MUST BE SURE
100% Alveolar Air
Post Absorptive
2100:1 or above
34 degrees
No belching
No reflux
No dentures/foreign substances
No mouth alcohol
No interfering substances

40. Who has the responsibility to fix potholes? Not ME!

41. GOOD THEME =
HE JUMPED TO A FAULTY
CONCLUSION
!
BAD THEME =
HE’S WRONG

42. JUDGES/JURIES WANT TO
BELIEVE COPS ARE GOOD
PEOPLE AND GOT IT RIGHT