Just like the HGN and One Leg Stand, there are specific clues that officers are trained to look for during the Walk and Turn test. There are eight of them, and they are:
1. Losing balance while listening to instructions,
2. Starting the test too soon,
3. Stopping while walking,
4. Not touching heel-to-toe,
5. Stepping off the line,
6. Using arms for balance,
7. Making an improper turn,
8. Taking an incorrect number of steps.
However, these clues are very specific, and are not necessarily as straight-forward as they sound. You should always call for your free strategy session before taking the clues that your officer identified at face value!
Three of the Most Common Issues with Walk and Turn
Again, the instructions that you’re supposed to be given before this test are very specific. The clues that officers are looking for are also very specific. If the officer messes any of that up, the validity of his results may be cast into doubt.
1. The officer incorrectly identifies “Not touching heel to toe.”
In the most recent manual, “not touching heel to toe” is only a clue if you miss your heel-to-toe step by more than half an inch. Many times, officers are unable to remember exactly what this clue is at trial and may not be able to say if your step was outside of this half-inch allowance. If that ends up being his testimony at your trial, who knows how much of the rest of the test he didn’t identify correctly?
2. The officer incorrectly identifies an “improper turn.”
I see this clue messed up with surprisingly regularity. The turn that you’re supposed to take is very specific and requires that you be instructed on how to perform it properly. If the officer failed to properly instruct you on how to turn, we’ve may have an argument that he can’t use his own mistake against you! It is entirely possible to comply with the officer’s instruction yet still take an improper turn as defined by the manual, and vice-versa. This is a strong contender for the #1 field sobriety issue that I see throughout Arkansas.
3. The officer did not provide acceptable test conditions.
Field tests should be performed on a dry and level surface that is reasonably clear of gravel and other debris. If he didn’t provide you with acceptable conditions, why not? Often the excuse is that the flawed test conditions were simply the best they had available. This excuse may not always fly—if you were arrested, you likely saw plenty of dry and level surfaces reasonably clear of debris after you were arrested at the jail. Why not test (or re-test) in the jail’s sally port, hallway, or intake area, where there are wonderful testing conditions, often times on camera?! We may be able to argue that officer laziness should not be held against you.
A Final Word On Field Testing
By no means is the proceeding information an exhaustive account of all the ways that your officer’s field sobriety results can be attacked.
I am a strong proponent of the common-sense observation that every case is unique. Every case comes packaged with its own set of facts out of which we get to cobble our defense. In many cases, the unique combination of facts will allow us to make arguments that would be virtually impossible on any other case. That’s why it’s so important for a good DWI attorney to have completely internalized the field test, it’s goals, and the policy behind it. Your attorney’s knowledge of the tests should be automatic. You have to live and breath the fundamentals so that you can work on the art of defending each individual case rather than the science of the general field testing principles. You cannot focus on artistic flourishes at trial or during negotiations without first mastering the fundamentals.
The field sobriety test is by no means the end-all of your case. There are many other factors that play into your defense. To name just a few, we will want to look at all the following before making a final analysis of your case:
1. How you were driving.
2. How you sounded on video.
3. Statements that you made to the officer.
4. The result of any portable breath test.
5. Any breath test result obtained at the station, and how to get around a >.08 result.
6. Whether any in-custody questioning was done, whether Miranda warnings were given.
If you have any questions about how field testing was done in your case, give me a call at 479-871-9602 to schedule a meeting.
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Brannen is trained as an instructor under the National Highway Traffic Safety Administration's SFST Guidelines.