Cross-examination of the DUI defendant by the prosecutor
PROSECUTOR: Okay, Mr. Smith, you say you felt you did fine on the FSTs?
DEFENDANT: Not now that I know the rules.
PROSECUTOR: Well the officer told you what to do, didn’t he?
DEFENDANT: But not what counted.
PROSECUTOR: So you are saying the officer lied here in court when he told the jury he explained and demonstrated the test for you?
DEFENDANT: No, I am saying he never told me what did or did not count.
PROSECUTOR: Well he told us he takes it all into consideration. So it all counts.
DEFENDANT: But apparently some things count more than others.
PROSECUTOR: Well do you still think you passed?
DEFENDANT: It depends on how you grade it. I can see why the officer said I failed.
PROSECUTOR: You admit you failed.
DEFENDANT: I admit I did not perform the part the officer was checking the way he wanted me to.
The DUI defendant must be prepared to deflect rather than confront the prosecutor on these questions.
PROSECUTOR: Well, John, getting back to where we were, you feel that officer was wrong in arresting you based on your FST performance?
DEFENDANT: Not really, I think that I did fine, given what I was trying to do. Since I did not know the rules and he did, his arrest seems to be okay.
PROSECUTOR: So it is a matter of perception based on limited knowledge?
DEFENDANT: Correct.
PROSEUCTOR: So you have a bad back?
DEFENDANT: Like many other people.
PROSECUTOR: But you did not mention it to the officer?
DEFENDANT: I did not know the importance. I bet a few jurors also have bad backs, and none of them told the judge during the questioning.
PROSECUTOR: I am not asking about the jurors. I am asking if you told the officer you had a condition that would affect your performance on the FSTs?
DEFENDANT: I didn’t tell the officer because he never asked the question like you just did. He asked if I had any physical limitations. Not if anything would affect the FSTs.
PROSECUTOR: So, is it your testimony the officer lied when he testified he did ask you those questions?
DEFENDANT: No, I do not think the officer ever lied here in court. I am saying he did not make it as clear as you are as to why he was asking me. So I was not as clear in my answers.
PROSECUTOR: Then it is the officer’s fault?
DEFENDANT: No, it is no one’s fault. Just a lack of understanding.
Regardless of the specifics of your situation, assistance from a knowledgeable DUI attorney with your testimony is crucial. A DUI defense lawyer will know the right questions to ask and will prepare you to testify honestly but effectively about any problems you had performing the field sobriety tests.