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Defense Strategy & Police Mistakes

Interviewer: Let’s talk about what sort of strategies you’re going to be taking and some of the mistakes that police officers typically make.

Ron Mondello: Mistakes might be made during the actual field sobriety tests, but those are not going to be put in a report. Where the officer might make some mistakes is when he’s on the stand and he’s going into detail about how he administered the tests. He might make a mistake. Maybe he says, “I told him to take eight steps,” as opposed to nine. That’s unlikely, but it does happen.

Those mistakes will certainly not be evident most of the time in a police report, but those mistakes will become obvious during the direct examination of the police officer that conducted the field sobriety tests.

DWI Defense Attorneys Hire Experts in Field Sobriety Testing

What many of the DWI criminal defense attorneys in New Jersey do is we hire experts in field sobriety testing, and that expert will listen to the police officer give testimony as to how the field sobriety test was conducted and not only assist the attorney with the cross examination, but that expert witness will take the stand and talk how the conditions were not right, so this particular field sobriety test should be ignored.

A good example is that one of my clients was involved in a very serious accident and although he was not seriously injured, the impact was more than substantial. The car was totaled. One of the police officers conducted the field sobriety tests on him, and we had an expert opine that he would have great difficulty in performing those field sobriety tests after having endured his vehicle making contact with the telephone pole and almost splitting it down the middle.

A lot of the field sobriety tests were invalidated and the testimony of the tests did not come into evidence. The judge omitted that testimony in his decision.

Notable Cases

Interviewer: I wanted to know before we go, are there any particular cases that you can recall that might have been where a field sobriety was an integral factor in the case itself?

Ron Mondello: Well, I just mentioned the case where one of my clients was in an accident, and the judge found that the field sobriety tests would not have been effective on someone who just hit a telephone pole. I have seen instances where my clients have done such a poor, poor job on the field sobriety tests that it makes the defense of the DWI just so very, very difficult, especially when it’s on video.

The term most often bandied about would be “fall-down drunk.” If you are unable to even stand up during the walk-and-turn and that’s on video, there’s a high probability that that case is going to be extremely difficult to defend and, more likely than not, the judge would find the defendant guilty as driving while intoxicated.

By Ronald P. Mondello