Miscounting Designed To Lie - A Diverted Attention Test
The scoring or grading process utilized by NHTSA cleverly diverts attention away from the normal, sober, good or passing performances of a citizen doing field sobriety tests. NHTSA uses the term "clue" as a unit of measurement in assessing whether or not a citizen, given a total number of clues, either passes or fails the tests. Under the designed mis-scoring methodology, a citizen gets no positive clues for performing as instructed, rather, he only gets negative clues for not performing as directed. For simplicity sake, consider that a "clue" is a "point".
This skewed scoring process need not be all the jury sees and hears. Learned defense counsel can uncover for the jury the mis-scoring deception preferred by the government. If we change the negative counting methodology to one which also includes positive points, the citizen's good performance will then be fairly credited and properly scored.
Counsel can use all the numbers to not only bring out the truth as to the totality of the citizen's performance, but also, to expose the government's negative numbers lie.
The first step to the truth is to examine each field sobriety test given and to break it down into its respective parts. For example, scrutiny of the one leg stand shows it is comprised of a total of 151 instructive things for the citizen to do, i.e., follow the officer's instruction = 1; not swaying = 30; not using arms for balance = 30; not hopping = 30; keeping foot off ground = 30; and, counting properly = 30.
Defense counsel should consider each instructive item to equal a point and score accordingly. For example, during his field sobriety one leg stand test, citizen Jose Cuervo used his arms once for balance and dropped his foot twice. The officer scores this as a 3 which is a failure.
Application of the fair scoring methodology yields an entirely different result. Using the positive and negative points, the citizen's actual performance can be divided and computed as follows:
| STEP NO. 1: | Subtract the number missed from the total possible performance, e.g.:
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| STEP NO. 2: | Divide the 148 (total performed correctly) into 151 (total possible performance) yields a quotient of .9801324:
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| STEP NO. 3: | Counsel then should multiply that number by 100 to yield a percentage of 98%. | ||||||||
| STEP NO. 4: | Apply Jose Cuervo's (or your client's) actual and total performance to the academic grading methodology. Wow! 98% cannot be a failure! Failing with 98% flies in the face of our past educational experiences. Remember the following:
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| STEP NO.5: | Create demonstrative exhibits for the field sobriety tests used. It is suggested that counsel use art size poster or have reusable professionally made poster size exhibits which has all the above information and computations on it. Defense counsel can score the exhibit during the cross examination of the testing officer. Further, it is suggested on exact duplicate of the exhibits information and computations be made on pre-prepared letter size paper and that this smaller exhibit be admitted into evidence in lieu of the larger demonstrative exhibit. | ||||||||
The following examples of the "One Leg Stand" and "Walk and Turn" Field Sobriety Tests exhibits are just samples of what learned defense counsel can do with a little creativity.
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SCORING THE ONE LEG STAND
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SCORING THE WALK & TURN
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These exhibits can be used for other field sobriety tests too, such as the finger to nose test; the Rhomberg, etc. These exhibits are not just useful cross examination tools, but also, they are invaluable aids for closing argument. Moreover, inasmuch as they are admissible as computation summaries, they continue to speak the defensive theme of fairness to the jury in the deliberation room even after summation has ended.