You are representing John Doe who has been arrested and charged with driving under the influence of alcohol. Not unlike most defendants charged with DWI, the officer (Officer Smith) administered a roadside sobriety test shortly after stopping John. For those unfamiliar with roadside sobriety tests, they are nothing more than a series of physical tests and observations allegedly designed to allow the officer to determine if the driver was driving under the influence of alcohol or narcotics.

One of the standard roadside tests is called the “heel to toe” test. In this test, the driver must walk a certain number of steps down an imaginary or real line, beginning with the foot designated by the officer. After taking the designated number of steps, the officer instructs the driver to turn around, begin with a designated foot, and walk another designated number of steps. All of this is to be accomplished with the driver’s arms at his sides.

In his report, Officer Smith wrote in conclusory fashion, that “Mr. Doe failed the heel to toe test.” He cited the following error: “On steps four and five, Mr. Doe lost his balance and had to raise his arms to remain on the line.”

Assume that John cannot refute this assertion. However, he challenges the notion that he “failed” the heel to toe test. He is also irate over the test being a valid indication of whether he was driving while intoxicated in the first place.

While this might appear to be a hopeless case, there may still be a great number of helpful facts or golden nuggets. A little bit of brainstorming can get the wheels inside your head turning so that you can discover them.

Here are some tips for cross-examining Officer Smith:

• Begin with a study of the terrain where the test was conducted.

1. Was this test conducted on the side of a busy highway with 18-wheeler trucks zooming by at 70 miles an hour?
2. Was this test conducted on an uneven and unpaved shoulder of the road, or on gravel?
3. Was it light out or was it dark?
4. Was John asked to take his shoes off and walk barefoot?
5. If the driver was a female, was she wearing high-heeled shoes. Did her shoes remain on throughout the test?
6. Was it raining or snowing during the test?
7. Was the line real or only imaginary?
8. Did the officer keep flashing all of the lights of his cruiser during the tests?

These and many more facts may be marshaled into one or more convincing chapters that demonstrate the difficulty for any driver of performing this test at this location. The chapters concerning the site of the test and the conditions of the test do not even scratch the surface of the test itself.

For example …

1. If John was told to take ten steps before turning around and did take ten steps before turning around, then he passed the memory part of the test.
2. If John was told to begin with his left foot and did begin with his left foot, then he passed that part of the test.
3. If John was told that after reaching the end of the line he should turn to his left before coming back and he did turn to the left, he passed that part of the test.
4. If John was told that after turning he had to take five steps toward the officer and he did take five steps toward the officer, then he passed that part of the test.

The idea is to visualize the scenario as vividly as possible in order to find those facts that can be marshaled together to form a coherent picture of “things done right by John.” This will undermine the incomplete picture painted by Officer Smith on direct examination.

The only caveat is this: no fact by itself can create the type of vivid pictures that are necessary. For this reason, you should sift through all of the facts and isolate those that will help you establish your goal. The chapter method cross-examination is the perfect tool for doing so. Moreover, it is naive to think that one goal is enough. As demonstrated here, there are several goals that can be accomplished by breaking down the heel to toe test into its individual parts.