Randy Goodis, P.A. Attorney at Law

Effective Cross-Examination is Key to Successful DWI Defense - continued

Pattern 4

This is a powerful and reasonable way to attack both the validity of the officer's observations and his penchant for unfairly jumping to conclusions. The same thing can easily be done with all other personal observations.

Q.	You testified that one of the tests you administered to the defendant required him to stand with his
	body erect, feet together, hands down by his side, head back and eyes shut, correct?
A.	Yes.
Q.	And you reported that his problem with that test was that he swayed, right?
A.	Yes, he did.
Q.	But you didn't mention any other way in which he failed to perform properly, did you?
A.	That's true.
Q.	And that is true because that is all he did wrong, correct?
A.	Yes.
Q.	Have you ever heard of the "sway test?"
A.	I have.
Q.	The test you administered has been nicknamed the "sway test," right?
A.	Yes.
Q.	Surely, you know that many people sway while standing?
A.	Yes, I know that..
Q.	Shifting your weight swaying, can be a comfortable way of standing, can't it be?
A.	I suppose so.
Q.	I'll bet that even you sometimes sway while standing still, don't you?
A.	Most people do.
Q.	But you evaluated the defendant based on the same body movement you and many other people do,
	swaying, correct?
A.	That is what I was taught to do.
Q.	And when you or another person is swaying, shifting one's weight to stand more comfortably, that
	has nothing to do with whether you were consuming alcohol or not, does it?
A.	No.
Q.	Yet, you judged this young man as having had too much to drink because he did what most of us do,
	he swayed, correct?
A.	That's what we're trained to do.
Q.	Well, if the person who trained you got it wrong, your test would be, wouldn't it?
A.	!!!
Q.	Now, earlier you testified that you really try to be fair to these defendants when administering these
	tests, correct?
A.	Of course, I always try to be fair.
Q.	Well then, if this "sway" test is to really be fair, and you have admitted that many people who have not
	been drinking sway because it's a comfortable way of standing, wouldn't it be fair and reasonable to
	advise the defendant not to sway or he'll be considered impaired if he does?
A.	I suppose so.
Q.	But you didn't do that in this case, did you?
A.	No.
Q.	You never once told him not to sway, as most people do?
A.	No, I didn't.
Q.	Wouldn't that really have been the fair and reasonable thing to do? Let him know on what basis he was
	being judged?
A.	I guess so.
Q.	There was nothing stopping you from warning him was there?
A.	No, there wasn't.
Q.	Did you have time to tell him not to sway?
A.	Yes I did. I chose not to. I wasn't trained to do that.