One of the most common ways we fight the results of the field sobriety exercises is by re-grading them. The officers are trained that – just as a for instance – there’s an exercise called the ‘walk and turn exercise’ where you’re supposed to take nine steps up a line, turn in a particular way, and take nine steps back down the line, touching heel to toe on every step with your hands down at your side and counting your steps out loud.
If you step off the line on one of the 18 steps you get no credit for the 17 you did right. If for a moment you raise your arms, that counts against you and you don’t get credit for keeping your arms at your side the entire rest of the time.
If the officers see what they call two indicators – one step off the line and one raising your arms – you’ve failed that test and they’re considering it as an indicator that you are impaired.
In defending these cases we re-grade the test using our own criteria. If you do 17 out of 18 heel to toe steps we give, you credit for the 17 you did right. If you kept your arms down at your side during 17 of 18 of those steps, you get credit for the 17 you did right; if you do the turn correctly, if you count out loud correctly.
By the time we’re done re-grading the exercise we can show a jury that you did 98 percent of the things right on the side of the road you were asked to do that night and yet you were arrested for DUI. Well, where I went to school a 98 percent was and A+. In this case an A+ means – and the prosecutor will try and argue that an A+ means that you were guilty.
It’s a powerful defense and it’s one that works. An experienced DUI attorney will be able to employ strategies like that and others in defense of a client accused of a DUI.