Fighting a Massachusetts DUI charge at trial often involves contesting the reliability of field sobriety tests. To help readers better understand how these tests should be performed, what clues to look for and way to challenge these exercises at trial, I am going to write a series of blogs on the three standardized field sobriety tests, the nine step walk and turn, one leg stand, horizontal gaze test, other non-standardized tests that are used by police. The final Blog in this series will discuss what the police training manuals tells the officer to look for when observing your driving and making the initial contact with you at the scene of the motorist vehicle stop. In this Blog, I will discuss the nine step walk and turn field sobriety test.
The walk and turn field sobriety test is an exercise that many people perform very well on even when arrested for drunk driving in Massachusetts. While the officer will likely say you failed, the purpose of this blog is to explain to you what the officer should have been looking for and how the results of this test can be used in front of a jury to argue that you were not under the influence of alcohol and to achieve a not guilty verdict.
A police officer is suppose to score the nine step walk and turn according to his police training, which is based on the National Highway and Detection Field Sobriety Test Manual. I have a copy of these manuals for the various officer; there are about four different manuals depending on when an officer was trained; however, the testing procedure is basically the same for each manual. Click here to see a copy of a police training manual.
What does an officer look for on the nine step walk and turn.
- Cannot keep balance during the instructions; this is maintaining the heel to toe stance during the instruction phase
- Starts before the instructions are finished
- Stops while walking
- Does not touch heel to toe: This is an important clue because some officers make the test more difficult to perform by not recognizing that the feet do not have to touch. The training manual of the officer indicates that there can be a one-half inch space. Most officer do not recall from their training that the heel and toe do not have to touch for the test to be performed correctly.
- Steps off of the line
- Uses arms for balance: This is another clue that requires the arms to be more than 6 inches from the body. The arms do not have to be glued to the person’s body. Most officers do not tell the suspect that the arms do not have to be stuck to the person’s side.
- Improper turn
- Incorrect number of steps
It is considered a failure on the nine step walk and turn if two or more clues are present. However, the test is only deemed 68% reliable if given under ideal conditions. There are many ways to attack the reliability of the exercise based on medical conditions, weather conditions or conditions of the roadway where the test was performed, but for the purpose of this Blog Post, I will discuss how taking the officer’s training, this exercise can be used to help demonstrate normal coordination and mental ability, which is vital to winning a DUI trial.
In using this test at trial, one common method for a Massachusetts DUI lawyer is to change the jury view of the scoring on the test. Many reports do not contain any details of a motorist stepping off the line. Typically, there is no designated line, making the test harder. Given there are nine steps forward and nine back, one way to look at the scoring is to divide up each of the clues and base the scoring on a maximum of 18 points for each part of the test done correctly. This method of changing the scoring on the field sobriety tests is stressed at conferences held by the National College of DUI Defense.
Missing heel to toe: in some reports the officer states that the person missed heel to toe on 2 or 3 steps; if this is the case, the idea is to show the jury that overall the motorist did very well, scoring 16 for 18, on an unfamiliar test, under difficult conditions.
Taking the correct number of steps is also a good opportunity to demonstrate good mental ability, because it requires the person to count while performing a physical exercise.
Since the nine step walk and turn has so many different components and potential places for a defendant to make a mistake on the exercise, it provides a DUI lawyer with many opportunity to stress positive aspects of the performance that demonstrate good ability to follow instruction, to think clearly and to demonstrate good coordination.
When looking at your police report in your case, it is important to understand how the exercise is to be scored, what other clues the officer could have found, to evaluate how this exercise will be used at trial.
Attorney Michael A. DelSignore is a Massachusetts drunk driving attorney that has cross examined countless officers regarding the nine step walk and turn test, is familiar with the police training and has attended seminars across the country on these this and the other field sobriety tests given by the police. Of all the so-called field exercises, I think that the nine step walk and turn can often be used to demonstrate sobriety. You can reach me to discuss your case anytime at 781-686-5924 or by email through this website. Most calls are answered personally.