Cross-Examining the Field Sobriety Opinion in a Massachusetts OUI Trial

At a Massachusetts OUI trial, an officer may describe roadside field sobriety performance and give a limited lay opinion on sobriety or intoxication. During cross-examination, defense counsel tests the basis for requesting the exercises, their administration and scoring, the roadside conditions, and the difference between observation and inference.

The firm addresses the governing rules and each exercise in its Massachusetts field sobriety test defense guide. Concise answers about police authority, refusal, physical force, scoring, and trial use appear in the field sobriety test FAQs.

The Legal Basis for Roadside Exercises

An officer may direct field sobriety exercises when specific and articulable facts create reasonable suspicion of OUI. In Commonwealth v. Blais, 428 Mass. 294, 297-302 & n.3 (1998), the Supreme Judicial Court held that consent and a refusal warning are unnecessary during a lawful investigative detention. On cross-examination, counsel should identify the facts the officer knew before directing the exercises and whether those facts supported the additional detention.

The officer’s authority to direct the exercises does not permit physical force. A judge does not automatically suppress the evidence because of an officer’s statement that the exercises are mandatory when reasonable suspicion supported the direction. The judge weighs the statement if the Commonwealth relies on consent because reasonable suspicion was absent, or if threats, force, or the surrounding circumstances exceeded lawful authority. The judge decides whether to suppress the evidence based on the complete interaction between the officer and the driver.

The Officer’s Training Standard

The National Highway Traffic Safety Administration prescribes instructions, demonstrations, conditions, and clue definitions for the standardized battery. According to the current manual, changing standardized elements may compromise validity. A judge does not automatically exclude the observations because the officer departed from the standardized procedure. A departure may, however, mean that the research on the standardized battery does not support the officer’s conclusion. On cross-examination, counsel should establish the procedure the officer learned and compare that procedure with the report, testimony, and video.

Concrete Observations and the Officer’s Interpretation

On cross-examination, counsel should separate each event from the label the officer gives it. A foot touching the ground, an arm moving, or a heel stopping short of a toe is an observation. Describing such an observation as proof of intoxication is an interpretation. The standardized battery classifies the likelihood of an alcohol concentration at or above a specified level. The battery does not measure the person’s actual alcohol concentration or driving ability.

Counsel can then ask precise questions. How far did the arm move? How long did the foot remain down? Where was the line? What correct performance did the report omit? The officer usually lacks a sober baseline for that driver. On cross-examination, counsel can compare the claimed clue with the correct performance and the testing conditions without arguing with the officer over a summary word such as failure.

Instructions and Roadside Conditions

What happens during the instruction phase is evidence. The walk and turn and one leg stand require a person to remember several commands while maintaining an unfamiliar posture. The officer should identify the instructions, any demonstration, whether questions were answered, and when scoring began. Starting too soon and losing balance during the walk-and-turn instructions can be scored before the first step.

The walking exercises call for a reasonably dry, hard, level, and nonslippery surface. Lighting, wind, traffic, cruiser lights, footwear, fatigue, injury, age, weight, inner-ear conditions, language, and anxiety can affect performance. The court does not automatically exclude the evidence because of those conditions. The jury may consider whether the administration matched the training and whether an innocent condition better explains a scored movement.

Walk-and-Turn and One-Leg-Stand Scoring

The walk and turn has eight clues. The clues are losing balance during instructions, starting too soon, stopping, missing heel to toe by more than the prescribed distance, stepping off the line, using the arms, making an improper turn, and taking the wrong number of steps. The line may be imaginary, and the officer estimates small distances by sight. On cross-examination, counsel should compare each clue with the video and identify correct steps, counts, and turns.

The one leg stand has four clues during approximately 30 seconds. The clues are swaying, using the arms, hopping, and putting the foot down. A momentary foot touch does not end the exercise. The person should raise the foot and continue. The officer must distinguish a clue from an ordinary balance adjustment. Neither walking exercise produces a scientific measurement or literal pass-or-fail result. The jury may evaluate the degree and duration of the movement.

Nonstandard Roadside Exercises

Alphabet recitation, backward counting, a finger count, Modified Romberg, and finger to nose are outside the validated three-exercise battery. The NHTSA drug-recognition curriculum prescribes procedures for Modified Romberg and finger to nose, but recognizes that they have not received the same controlled validation as the standardized alcohol battery. On cross-examination, counsel should identify the training, instructions, and claimed significance of each nonstandard exercise and determine whether the officer assigns an unsupported scientific meaning to an observation.

Field Sobriety Refusal Evidence

An actual refusal of roadside field sobriety exercises generally may not be used as evidence of guilt. In Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995), the Supreme Judicial Court held that the refusal is testimonial under Article 12 of the Massachusetts Declaration of Rights. The Registry of Motor Vehicles does not automatically suspend a license for that refusal. The decision to submit to the breath test or refuse the breathalyzer, and the license consequences of each choice, are explained on a separate page. Counsel should identify any refusal language and obtain a ruling before trial when necessary.

A judge may admit limited refusal evidence if the defense creates a misleading impression. In Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 104 (2011), the Appeals Court permitted limited refusal evidence to rebut a claim of complete cooperation or that police never offered exercises. Statements and conduct during an attempted exercise may be admissible. Counsel should avoid creating that misleading impression while presenting the cooperation the admissible record supports.

Limits on Scientific and Lay Opinions

Horizontal gaze nystagmus test results are scientific evidence. In Commonwealth v. Sands, 424 Mass. 184 (1997), the Supreme Judicial Court required an adequate expert foundation before the jury may hear the result. A police report listing HGN clues is not a substitute for the expert foundation. Counsel should address the witness’s qualifications, the prescribed distances and speeds, the medical screen, and any video if the Commonwealth offers the HGN evidence.

In an alcohol-OUI case, the officer may offer a limited lay opinion about sobriety or intoxication. Under Commonwealth v. Canty, 466 Mass. 535 (2013), the witness may not offer an opinion on whether alcohol diminished the person’s ability to operate safely. In Commonwealth v. Gerhardt, 477 Mass. 775 (2017), the Supreme Judicial Court prohibited pass-or-fail testimony in a marijuana-OUI case and opinions that roadside performance established impairment.

Video and the Written Report

Body-camera and cruiser video can show the surface, instructions, demonstration, pace, movements, correct performance, speech, and responses that the report summarized or omitted. The recording may not show a foot, an eye movement, or a small distance because of the camera angle, so the recording is not automatically conclusive. Counsel can use the recording on cross-examination to test a specific statement, so that the jury can compare the event with the officer’s later description.

The Police Report and the Rest of the Encounter

The roadside exercises occupy only part of an OUI investigation. An officer may also observe how the driver produces a license and registration, exits the vehicle, walks to and from the testing location, speaks during transport, enters the station, answers booking questions, handles personal items, reads forms, and signs documents. Under Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 417 (2014), driving performance, appearance, demeanor, field sobriety performance, and conduct at booking may all be relevant to impaired operation.

Counsel can use an omission from a police report to impeach later testimony when the officer naturally would have included the omitted observation in the report. Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 72 (1995). The omission does not establish that the event never occurred.

On cross-examination, counsel can establish the officer’s training and ordinary report-writing practice and identify the observations that the report includes and omits. Counsel can then ask the jury to decide whether the later testimony is consistent with the contemporaneous account. Attorney Serpa describes the complete method in how he tries a Massachusetts OUI case after a breathalyzer refusal.

A Deliberate Trial Sequence

Counsel begins the cross-examination with the legal basis for directing the exercises. Counsel then establishes the officer’s training and the prescribed procedure and examines each exercise. Counsel should also identify favorable observations, test the clues, address alternative explanations, and avoid creating a misleading impression that would allow the judge to admit refusal evidence. Counsel should end the cross-examination with the limit on the officer’s opinion. The firm discusses the broader method in its article on how Massachusetts OUI cases are tried and its Massachusetts cross-examination page.

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