| Q. |
You testified that one of the tests
you administered to the defendant required him to
stand with his body erect, feet together, hands
down by his side, head back and eyes shut, correct? |
| A. |
Yes. |
| Q. |
And you reported that his problem with that test
was that he swayed, right? |
| A. |
Yes, he did. |
| Q. |
But you didn't mention any other way in which
he failed to perform properly, did you? |
| A. |
That's true. |
| Q. |
And that is true because that is all he did wrong,
correct? |
| A. |
Yes. |
| Q. |
Have you ever heard of the "sway test?" |
| A. |
I have. |
| Q. |
The test you administered has been nicknamed the
"sway test," right? |
| A. |
Yes. |
| Q. |
Surely, you know that many people sway while standing? |
| A. |
Yes, I know that. |
| Q. |
Shifting your weight swaying, can be a comfortable
way of standing, can't it be? |
| A. |
I suppose so. |
| Q. |
I'll bet that even you sometimes sway while standing
still, don't you? |
| A. |
Most people do. |
| Q. |
But you evaluated the defendant based on the same
body movement you and many other people do, swaying,
correct? |
| A. |
That is what I was taught to do. |
| Q. |
And when you or another person is swaying, shifting
one's weight to stand more comfortably, that has
nothing to do with whether you were consuming alcohol
or not, does it? |
| A. |
No. |
| Q. |
Yet, you judged this young man as having had too
much to drink because he did what most of us do,
he swayed, correct? |
| A. |
That's what we're trained to do. |
| Q. |
Well, if the person who trained you got it wrong,
your test would be, wouldn't it? |
| A. |
!!! |
| Q. |
Now, earlier you testified that you really try
to be fair to these defendants when administering
these tests, correct? |
| A. |
Of course, I always try to be fair. |
| Q. |
Well then, if this "sway" test is to
really be fair, and you have admitted that many
people who have not been drinking sway because it's
a comfortable way of standing, wouldn't it be fair
and reasonable to advise the defendant not to sway
or he'll be considered impaired if he does? |
| A. |
I suppose so. |
| Q. |
But you didn't do that in this case, did you? |
| A. |
No. |
| Q. |
You never once told him not to sway, as most people
do? |
| A. |
No, I didn't. |
| Q. |
Wouldn't that really have been the fair and reasonable
thing to do? Let him know on what basis he was being
judged? |
| A. |
I guess so. |
| Q. |
There was nothing stopping you from warning him
was there? |
| A. |
No, there wasn't. |
| Q. |
Did you have time to tell him not to sway? |
| A. |
Yes I did. I chose not to. I wasn't trained to
do that. |
 |
