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Fiandach & Fiandach (Rochester NY)

585.244.8910

Fiandach & Fiandach - New York's First and Western New York's Only DWI Defense Specialist.
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Cross-Examination in a BWI

February 13, 2008

The boating season, at least in upstate New York, is quickly winding down. In another week or two it will, in our opinion, simply be too cold to make boating worth the effort. This does not mean, however, that on the professional side it's also time to boat our knowledge of boats and boating in drydock. By all indications, increased enforcement means that arrests for Boating While Intoxicated will hit record numbers this year. This means that in the coming months we will return to the water, at least in court, as we begin to see some of these DWI analogs come to trial.

We have previously reviewed the statutory provisions pertaining to this rather novel form of alcohol related operating offense (see, 1 NY DWI Bulletin 5), and we will not be elaborating on them today. Suffice it to say, for our purposes today, that although the similarities are strong, i.e., adaptation of the Cruz reasonable and prudent test, the very nature of the offense dictates some crucial differences. While by and large the presentation of the breath test, or per se, count will remain the same, direct examination on the common law count is far more difficult. Operation of a water craft is far less structured than that of an automobile. Unless one is in a narrow channel, there are no lines across which one can weave. Moreover, although speed limits do exist on most of our major waterways, the trier of fact is generally not impressed with the fact that such limit is exceeded by even fifteen miles per hour. In this regard, one should take note that many pleasure boat users such as those towing water skiers or those riding so-called personal watercrafts such as a Sea-Doo7 seldom travel within the posted limits.

As anyone who has ever tried a roadblock case knows, the going gets much tougher when there exists no proof of operation which is not reasonable and prudent. To some extent, the problem is compounded by the lack of any provision within the Parks and Recreation Law banning the presence of so-called open containers on a water craft.


As those of you who have heard me lecture know, one of my favorite defenses is to contrast what may appear to be an exceptionally high blood alcohol count with observations of the Defendant. This tactic is particularly successful when the charge is Boating While Intoxicated since the logistics of the situation generally interpose a long period of time between the arrest and the time the boater is tested. This opens the door for the argument that as a result of absorption, the boater actually became more intoxicated as he or she was waiting to be tested. This technique gains some support from what many know as the pattern of consumption that is frequently found on watercrafts. One does not generally visit numerous establishments and thereby becomes intoxicated, nor does he or she set out, at least in the first instance, in an intoxicated condition. In the usual situation, the boater will actually become intoxicated on his or her craft. Usually the culprit is a cooler containing beer which is shared communally among all of those on the boat. Moreover, drinking in this environment tends to occur at an accelerated pace. This phenomenon dramatically increases the potential for arguing absorption, particularly when counsel is able to pin-down the precise amount of time the boater has been on the water.

So how does the prosecution prove a B.W.I.? The trick here actually begins with the arresting officer. The prosecution should meet with his or her sea-faring officers early in the year, before the season commences. Explain, if necessary, what I set out above and tell them why, more than ever, a breath test exceeding the statutory limit will not necessarily do the job. Tell them that to convict it will require a showing that the individual looked and acted intoxicated at the scene of the arrest. While the officer's opinion obviously means something, let's face it, it is to some extent suspect. Something more than an opinion will be needed and that extra something is a full battery of field sobriety tests. One or two won't cut it here. To surpass the burden of proof required for a criminal conviction, it will be necessary for the physiological proof to be overwhelming at the scene.


Despite what one would think is the obvious, as we will see in just a few moments, officers need to be told not to give the field sobriety tests on a boat! Even simple non-stature tests such as Horizontal Gaze Nystagmus or HGN or reciting the alphabet are to some extent influenced by the motion of a boat. Further, attention should be paid to the footwear and surface employed for administration of field sobriety tests to a boater. A concrete launch can exceed one-hundred degrees on a hot day. If performed in bare feet a defense has been built in long before counsel is retained. Even in those situations when the surface is not hot, attention should be paid to the character of that surface. Stones, gravel or other rough surfaces can be a nightmare to those not accustomed to going about in bare feet. The impact upon a field sobriety test is obvious and should certainly be avoided.

While on the subject of test administration, the pragmatics of boating demand that attention be paid to clothing. Male or female, many of us (particularly legal commentators over 43) tend to be self-conscious in the presence of strangers. Officers should offer a wrap or a towel and defense attorneys should be prepared to make the most of it if they don't. Moreover, don't loose sight of the fact that this is not Southern California. Boating in New York does not always mean perfect weather conditions. Wind, particularly when someone has spent a considerable amount of time in the water or is in wet clothing, can have a chilling effect. This can cause one to be unsteady, tremble or slur his or her speech.

What follows is a cross-examination that we recently did in a B.W.I. which resulted in an acquittal. Even if you never do a B.W.I. in your career, much of what is done in this case can be easily carried over to the realm of Driving While Intoxicated. As it has been some time since we looked at cross-examining the arresting officer, I thought it would be helpful to do a review in this unique format.

The facts are that the Defendant was stopped about 9 p.m. in July for a burned-out navigation light. He had a .15 Breathalyzer7 test and was given field sobriety tests on the Deputy's boat. The Deputy previously testified that he did this because the water was calm and that there were no waves to disturb the test.

Q. Now, the Irondequoit Bay boat launch, that's the one located down by Don and Bob's?[i]

 

A. That's correct.

 

Q That's located at the north end of the bay, isn't it?

 

A. That's correct.


[Locating the scene can be advantageous, particularly when, as here, the site is well-known and the water tends to be rough]

 

Q. It is your testimony that the water was calm that evening, virtually no waves?

 

A. That's correct.

 

Q. Do you recall what the boat traffic was that evening?

 

A. It was steady.

 

Q. So, there were boats on the bay?

 

A. That is correct.

 

Q. Coming in and going out?

 

A. That is correct.

 

Q. To a certain extent I assume you spent a fair amount of time on the water?

 

A. That's correct.

 

Q. Both in your private and professional life?

 

A. That's correct.

 

Q. To a certain extent the number of waves on the water is not dependent upon the weather conditions but upon boat traffic as well; is that correct?

 

[Counsel for both parties should always get a copy of the marine report for the day in question. If none is available, a weather report will nonetheless be helpful in proving rough conditions]

 

A. That's correct.

 

Q. If there was a fairly steady flow of boat traffic will it contribute to higher seas?

 

A. Not in this location.

 

Q. So Mr. Hadenough's boat was absolutely rock solid stable?

 

A. No. It was not rock solid stable, but in the location it is a no wake zone, less than five miles an hour.

 


[Don't be afraid to overstate the witness's proposition, beg him or her to correct you in the manner you want]

 

Q. Then because it is a no wake zone there absolutely no wakes and no waves in this area at the north end of the bay?

 

A. No. I'm not saying that.

 

Q. So there were some waves in the area?

 

A. Very small, but nothing that would contribute to the boat swaying heavily.

 

Q. Well, so the boat isn't swaying at all is what you are telling me?

 

A. No. I wouldn't say that; it was swaying a little.

 

Q. So there was some sway?

 

A. In my opinion, yes.

 

Q. Do you recall how much sway there was to the boat?

 

A. Very minor.

 

Q. The sway, I'm assuming, was variable or was it constant?

 

A. It was variable.

 

Q. Variable. And I'm assuming we're talking about it rocking back and forth type of sway?

 

A. That's correct.

 

Q. I believe you testified on direct that while the various tests were being given, the ABC's, counting, finger-to-nose, that there was a certain amount of sway to the defendant; is that correct?

 

A. That is correct.

 

Q. And you definitely considered this sway in arriving to your opinion that Charlie was intoxicated?

 

A. Definitely.

 


Q. And some of that sway of course was due to the variable sway of the boat; is that correct?

 

A. It is possible.

 

Q. How long have you been around boats, generally?

 

A. All my life.

 

Q. Are you familiar with the term, Sea legs?

 

A. Yes, I am.

 

Q. What does the term sea legs mean?

 

A. It is when a boater on dry land exhibits a sway. Boater hypnosis is another term which the law uses. It is when someone is on the water for an extended period of time and possibly shows signs of possible intoxication.

 

Q. So what you're saying is that the boater gets off the water and tends to sway back and forth, correct?

 

A. That's correct.

 

Q. Like he or she was intoxicated?

 

A. In some cases.

 

Q. And if the boater is on a boat in calm water such as a protected cove he or she still maintains a certain amount of swaying; isn't that a fact? Isn't that what sea legs do?

 

A. That's correct. It happens when you are in water for an extended period of time, when you have engine noise, when you have large swells, when you have high winds, when you have various things that are going on all at the same time.

 

Q. You testified that you didn't know where Mr. Hadenough was going, correct?

 

A. I don't recall where he was going. He may have stated where he was going.

 

Q. But you could not testify as to where?

 

A. I don't believe so.

 

Q. And your testimony was silent as to where he had been, wasn't it?

 

A. Uh huh.


Q. It doesn't contain any indication whatsoever as to how long he was out on the water that day, does it?

 

A. No.

 

Q. So, you can't preclude that fact that he may have spent the whole day out on Lake Ontario?[ii]

 

A. Well, I don't know if he was on Lake Ontario or not. He was going south when I first observed him.

 

Q. You don't know where the boat had been that day, do you?

 

A. I just know it had been in Irondequoit Bay before I stopped it.

 

Q. You don't know where else it had been that day?

 

A. No.

 

Q. And you don't know how long he had been on the bay that day?

 

A. That's correct.

 

Q. Conditions on the bay tend to change from time to time, do they not?

 

A. They do.

 

Q. And they can change dramatically, can they not?

 

A. That's true.

 

Q. Particularly on the Lake?

 

A.. True.

 

Q. Now you testified at one point in time you gave him the finger-to-nose examination?

 

A. That's correct.

 

Q. That's an agility exercise, is it not?

 

A. In terms, correct.

 

Q. I believe you testified that you asked him to stand straight?

 


A. That's correct.

 

Q. Put his head back?

 

A. That's correct.

 

Q. Close his eyes?

 

A. Correct.

 

Q. Put his arms at his sides?

 

A. Correct.

 

Q. You indicated that on your command he was to take the index finger from his side and place it on his nose?

 

A. Directly from his sides (Indicating).

 

Q. So, we have him standing like this, correct (Indicating)?

 

A. Correct.

 

Q. On the first two occasions he touched his index finger, correct, to the tip of his nose?

 

A. That's correct.

 

Q. Standing on your boat?

 

A. That's correct.

 

Q. Did you ask him to stand with his feet together or feet apart?

 

A. Together.

 

[Recall that the Deputy testified as to a variable amount of sway. Note the continued repetition of that term.]

 

Q. So, we're standing on a boat with a variable amount of sway to it with our feet together, our head back, our eyes closed.

 

A. Yes.

 

Q. He closed his eyes as you requested him to. So, he followed all your instructions in that respect and he put his arms out as you requested him to do; is that correct?


A. With the index fingers out.

 

Q. With the index fingers out as you requested him to do?

 

A. Correct.

 

Q. On two of the four occasions he correctly touched the tip of his index finger to the tip of his nose?

 

A. That is correct.

 

Q. So, up to this point in time we have passed everything you have asked him to do, correct?

 

Q. And although he was standing with his feet together on a boat undergoing a variable amount of sway with his eyes closed he did not fall?

 

A. Correct.

 

Q. Nor did he grab you or any object for support?

 

A. Correct.

 

Q. And putting the feet together, closing his eyes and not falling was an important part of the test, wasn't it?

 

A. That's correct.

 

Q. And he passed that?

 

A. Correct.

 

Q. Putting the head back is an important part of the test, isn't it?

 

A. Correct.

 

Q. And he passed that portion?

 

A. Correct.

 

Q. Closing the eyes is an important part of the test, isn't it?

 

A. Correct.

 

Q. He passed it?


A. That's correct.

 

Q. And maintaining his balance with his eyes closed and his head back and his feet together is an important part of the test, isn't it?

 

A. Yes, but in my opinion he did not maintain balance.

 

[Since we know the answer, we break the cardinal rule.]

 

Q. Why is that?

 

A. Because he swayed.

 

Q. ---On a boat with variable sway.

 

A. Correct.

 

Q. Was there any reason why you could not have -- At this point in time your boat is down at the boat launch at Irondequoit Bay?

 

A. Right.

 

Q. And because of that sway you believed he was intoxicated, correct?

 

A. It was a factor.

 

Q. Is there any reason why you didn't ask him to get off your boat and conduct this test on dry land?

 

A. Yes, there was.

 

Q. Please tell me the reason.

 

A. Because of the other passengers on his boat wanted to get involved.

 

Q. Because of the other passengers. Now, this test would have been, and I think you have got to agree with me, the test would have been more accurate if it was conducted on dry land, wouldn't it?

 

A. It is possible.

 

Q. Because we wouldn't have at that point the variable sway of the boat.

 

A. It is possible.

 


Q. So, if I understand you correctly because of some activity of the passengers on Mr. Hadenough's boat you denied him an opportunity to conduct this test on dry land; isn't that a fact.

 

A. It is not the fact of denying him a test on dry land. I had him conduct the test where I asked him to conduct the test.

 

Q. Exactly, but you didn't conduct the test on dry land because you say that his passengers were somehow acting rude or getting involved?

 

A. That's correct, and I felt that my vessel was the safest place to conduct the checks.

 

Q. You had another deputy with you that evening, correct?

 

A. That's correct.

 

Q. I'm sure that this deputy is experienced in controlling situations?

 

A. That's correct.

 

Q. Well, why couldn't he control the situation on Mr. Hadenough's boat? I am assuming you were alone with Mr. Hadenough on your boat.

 

[In retrospect, he probably was pushed too far, but it was worth it as the Deputy abandons any justification for conducting the test on his vessel.]

 

A. I just decided to conduct the check on my vessel.

 

Q. That had the variable sway?

 

A. Correct.

 

Q. And the test would have been more accurate if it was conducted on dry land.

 

A. Possibly.

 

Q. Because the variable sway is going to affect Charlie as he attempts the test?

 

A. It is possible.

 

[Normally experience assists the police. In this situation, armed with a pre-trial hearing transcript it is used decidedly to the Defendant's advantage.]

 

Q. How many prior B.W.I. arrests had you made before this particular arrest?

 


A. This was my first Boating While Intoxicated.

 

Q. This is B.W.I. number one. So, for the first time you decide to do a Boating While Intoxicated arrest, you decide to give the field sobriety tests on your boat?

 

A. That's correct.

 

Q. Now, you said prior to this you have made ten DWI arrests?

 

A. Approximately ten.

 

Q. Over how long a period of time?

 

A. Over four years.

 

Q. Approximately four DWI arrests a year?

 

A. Approximately.

 

Q. Fair to say that you weren't making a lot of DWI arrests.

 

A. No. I'm not a driving while intoxicated unit, so no.

 

Q. So, if we average it out, your experience is limited to one every three months, correct?

 

A. Correct.

 

Q. You asked him to do the ABC's?

 

A. That's correct.

 

Q. You detected a pause where T should have been?

 

A. Correct.

 

Q. Was the motor on Mr. Hadenough's boat running?

 

A. I do not recall if it was. I believe that he had shut it off.

 

Q. But you are not sure?

 

A. No.

 

Q. Was the motor on your boat running?


A. No, it was not.

 

Q. Was your police or marine radio running?

 

A. Yes, it was.

 

Q. Were the blowers on either boat going?

 

A. I don't recall.

 

Q. So, you detect a pause where T should have been?

 

A. That's correct.

 

Q. But we aren't ruling out the fact that he said T perhaps not as loud and all you heard is a pause?

 

A. He could have.

 

Q. He said it slow and precisely I believe you said?

 

A. Yes, that's correct.

 

Q. And accurately?

 

A. That's correct.

 

Q. From S to Z he said it precisely and accurately; isn't that correct?

 

A. Besides the slurred and mumbled speech.

 

Q. Well, you never heard Mr. Hadenough speak before had you?

 

A. No, I haven't.

 

Q. Until this day you hadn't heard him speak?

 

A. No, I haven't.

 

Q. So, you can't rule out that's his normal speech?

 

A. No, I cannot.

 

Q. Now, aside from DWI and BWI arrests, how many arrests have you had an opportunity to participate in, traffic stops?


A. Thousands.

 

Q. It is fair to say, isn't it, that even in the most routine traffic stop, an individual tends to be nervous?

 

A. It is possible.

 

Q. In fact, more than being possible it tends to be the norm, isn't it?

 

A. At times I believe, not always.

 

Q. Can you put a percentage on it for me?

 

A. No, I cannot.

 

Q. But a traffic stop, I think you can perceive, you seem to be a sensitive person in terms of perceiving how people are feeling and acting and what condition they are in. You have to agree with me, don't you, that a routine traffic stop, and I'm assuming a BWI stop as well, is a rather unsettling event?

 

A. That's correct.

 

Q. There is something about a roof-rack that just does something to somebody, a roof-rack going off in back of you.

 

A. I'm not familiar with that term.

 

Q. Have you gotten stopped before you were a police officer?

 

A. Yes.

 

Q. How did you feel?

 

A. A little nervous.

 

Q. We can't rule out that nervousness played a certain element in perhaps the pause in the alphabet.

 

A. It is possible.

 

Q. We can't rule out the fact that nervousness played a certain role in continuing three numbers in the number count.

 

A. Anything is possible.

 


Q. When people are nervous their speech tends to tremble, does it not? I mean you've heard it?

 

A. Sure.

 

Q. So you don't know in terms of what you called slurred and mumbled speech, you don't know what components fear or nervousness played, do you?

 

A. No, I do not.

 

Q. You asked him to do the 1 through 20 count and he did 1 through 20, didn't he?

 

A. That's correct.

 

Q. He did it precisely, accurately, as you told him to do, didn't he?

 

A. Besides the slurred and mumbled speech.

 

Q. But we don't know what role nervousness or fear played in that, correct?

 

A. Correct.

 

Q. And you never heard him speak before?

 

A. That's correct.

 

Q. And for that matter he was wearing a swimsuit?

 

A. Yes.

 

Q. And it started to cool down.

 

A. Somewhat.

 

Q. Was that suit wet?

 

A. I don't know.

 

Q. But he later told you he'd been water skiing.

 

A. At some point.

 

Q. And you don't know what role any of that played in producing what you called slurred and mumbled speech?

 


A. I don't.

 

Q. Now, he continued and did an extra three numbers, didn't he?

 

A. That's correct.

 

Q. He did a little more than you wanted him to do, didn't he?

 

A. That's correct.

 

Q. You can't rule out the fact that Mr. Hadenough assumed by doing more than you asked him to do or improving on what you asked him to do that it would somehow impact favorably upon his case, can you?

 

A. No, I cannot.

 

Q. Same thing 20 to 0. He went 20 to 0, didn't he?

 

A. Even though you asked him to do 20 to 1.

 

A. That's correct. With these though I asked him to count specifically 1 to 20 and then 20 to 1.

 

Q. I understand that, but he did a little more?

 

A. That's correct.

 

Q. And he said all of his numbers accurately and precisely?

 

A. Correct.

 

Q. Have you been trained in the nine-step walk and turn?

 

A. Yes, I have.

 

Q. But you chose not to give Mr. Hadenough a nine-step walk and turn that evening; isn't that a fact?

 

A. That's correct, because we were on the Sheriff's marine.

 

Q. And by the Sheriff's marine you mean your boat, don't you?

 

A. That's right.

 

Q. And you did take him off Sheriff's marine 680 at one point in time; is that correct?


A. For testing and processing.

 

Q. Absolutely, but there is no rule or regulation that says you couldn't give him a nine-step walk and turn on the dock or the shore area when you took him off, is there?

 

A. No. That's my discretion.

 

Q. That's your discretion, so you chose not to do it?

 

A. That's correct.

 

Q. Are you familiar with the one-leg stand?

 

A. That's correct.

 

Q. Have you given that on occasion?

 

A. Yes, I have.

 

Q. Have you been trained in it?

 

A. For Driving While Intoxicated, yes.

 

Q. Do you believe it to be an accurate test?

 

A. Yes.

 

Q. On this particular occasion the tests you decide to exhibit are basically a matter of your discretion, are they not?

 

A. That's correct.

 

Q. As a matter of your discretion you decided not to give him the one-leg stand?

 

A. Correct.

 

Q. Have you been trained in horizontal gaze nystagmus?

 

A. Yes, I have.

 

Q. You didn't give him the horizontal gaze nystagmus either?

 

A. It was a matter of my discretion.

 


Q. You testified I think on direct that you've seen people drink small amounts of alcoholic beverages and not become intoxicated?

 

A. That's correct.

 

Q. Can a person have two beers and not become intoxicated?

 

A. Not always if they were a very small person.

 

Q. Mr. Hadenough sitting right there, do you think he can have two beers and not be intoxicated?

 

A. It is possible.

 

Q. What about three beers?

 

A. That's where I draw the line.

 

Q. But that's your personal line, isn't it?

 

A. Uh, yes.

 

Q. That's where you feel you can make an arrest; correct?

 

A. Right.

 

Q. You've never been trained that that's the line, have you?

 

A. No.

 

Q. Does the period of time over which the alcohol is consumed play a role in any of this?

 

Q. So, in other words, a person could consume ten beers over the course of a day and not be intoxicated; is that correct?

 

A. I wouldn't want to test that theory. It is correct though.

 

Q. It is correct.

 

A. It is.

 

A. Possibly, correct.

 

Q. You testified that Mr. Hadenough had, did you say, bloodshot and watery eyes, or did you just say bloodshot?


A. Bloodshot and watery.

 

Q. But Mr. Hadenough had been out on the water in the boat.

 

A. Correct.

 

Q. Do you recall the weather that day?

 

A. It was clear, relatively calm, no wind.

 

Q. A person who is out in a boat all day and you don't know whether he was waterskiing or anything else, that could tend to produce bloodshot and watery eyes, can it not?

 

A. It can.

 

Q. You don't know whether he suffered from allergies or anything of that nature, do you?

 

A. I do not.

 

Q. So the bloodshot and watery eyes certainly can't in and of itself conclude that Mr. Hadenough was intoxicated, can it?

 

A. Not by itself, no.

 

Q. And if I look around the courtroom here today it is possible that one of us may have bloodshot/watery eyes and not be intoxicated?

 

A. It is a possibility.

 

Q. And a person, of course, could have a strong odor of alcohol on his or her breath and not be intoxicated; isn't that correct?

 

A. I don't know for sure. I have an inclination and I suspect that he was intoxicated at that time.

 

Q. So you have an inclination and a suspicion that he was intoxicated?

 

A. Correct.

 

MR. FIANDACH: I have nothing further. Thank you Deputy.

 

 



[i].As a brief aside, for the hamburger aficionado, this place is well worth the trip!

[ii].Irondequoit Bay enters into Lake Ontario.



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