Articles Tagged with SFST’s

A couple was arrested in New Jersey this week for two separate instances of drunk driving, each within six hours of each other according to a report from USA Today’s Daily Record.  The boyfriend was the first to be arrested after a police officer responded to a call about a vehicle left on the side of the highway with its engine running, blinker on and keys in the ignition.  After a lack of cooperation on the boyfriend’s part and a declined Alcotest (New Jersey’s breathalyzer program), he was arrested and charged with driving while intoxicated, refusing a breath test, open container, consumption of an alcoholic beverage in a motor vehicle, reckless driving, failure to exhibit registration, and disorderly conduct.  He was then taken to jail to wait in a holding cell until someone could pick him up.

When his girlfriend arrived to do just that, officers noticed the smell of alcohol on her breath.  She admitted to drinking earlier in the day, and upon taking the field sobriety test and an Alcotest exam, was discovered to have a blood alcohol content (BAC) of .28%—well over the legal limit of .08%.  She was then charged with driving while intoxicated (DWI) and joined her boyfriend to wait for a family member to retrieve her from the police station.
The girlfriend’s arrest raises all sorts of questions about D.C.  DUI law—like when and how a police officer can charge you with a DWI or DUI.   Based on the article alone, the girlfriend wasn’t even driving the vehicle when she spoke with the officers.  How could she have been arrested?  After all, driving under the influence requires that the person was driving not just that they were under the influence.

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In the District of Columbia, the Office of the Attorney General (OAG) is responsible for prosecuting DUIs and it takes this job very seriously. While other jurisdictions routinely offer favorable deals for DUI offenders, DC rarely does. What that means is that often times you would be no better off pleading guilty than you would be if you took the case to trial and lost. Your best bet at beating a DUI conviction is going to trial and holding the government to its burden of proof.

To be convicted of a DUI, the government must prove that you were (1) operating a motor vehicle (2) while under the influence of alcohol or drugs. While two elements may not seem like much to prove for the government, there are numerous ways to challenge the evidence against you on both elements.

The first element of the DUI offense is the trickiest element to challenge because DC law has a broad definition of what it means to operate a motor vehicle. Operate is defined as actual physical control over the vehicle. Physical control means capable of putting the vehicle into movement or preventing movement. If you were pulled over and the police witnessed you driving, it is hard to say you were not operating the vehicle.

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This posting is the first in a three part series that seeks to answer some of the many questions people have regarding DC DUI arrests.  This post, like all posts, is not intended to serve as legal advice and is for educational purposes only.

Do I have to blow into the breath machine?

This question is complicated, but the short answer is no.  However, if you refuse to blow into the breathalyzer or submit to a urine or blood sample, the DC Department of Motor Vehicles can suspend your license for one year.  Although any arrest or conviction for DUI or DWI in DC can result in a loss of license for at least six months anyway.  The refusal may add another six months.  However, most DC DUI judges will give probation to first time offenders.  However, if your breath score is above a .20, then that triggers mandatory minimum jail time under the law.  That means even if the judge only wants you to give you probation, she must give you some mandatory minimum time.  The new law also prevents this time from being served on the weekends.  DUI is the only crime where the law literally requires you to incriminate yourself while police investigate you or be punished.

green-alcohol-cocktail-1422791-mThis blog is the third and final part in a three part series discussing the standardized field sobriety tests (or “SFST’s”) that officers administer during DC DUI traffic investigations.  The first part dealt with the Horizontal Gaze Nystagmus (or “HGN”), which is the follow the pen test.  The second part discussed the Walk and Turn Test, which is the walk the line test.  This part discusses the One Leg Stand Test.

During the One Leg Stand Test, the police officer will instruct the person suspected of driving under the influence to hold one leg six inches above the ground and count aloud.  The officer will instruct the person to count in the thousands (i.e. “one thousand one, one thousand two, etc.”).  The counting will go for thirty seconds but the officer will not inform the person how long to count in advance.  Like with the HGN and Walk and Turn, the officer looks for specific cues of impairment.  For the One Leg Stand Test, the four cues are:

  • If you sway while balancing;
  • If you use your arms to balance;
  • If you hop to maintain balance;
  • If you put your foot down.

In my opinion this test is particularly problematic for individuals–intoxicated or not.  Try standing on one leg for a full 30 seconds with your foot exactly six inches from the ground without at least using your arms to balance.  This task can prove difficult for a completely sober person.  Now imagine doing the test late at night on the side of the road with at least two police officers surrounding you, police lights flashing, cars speeding by, and with the knowledge that failure to successfully complete this test could land you in jail.  In addition, the shoes you wear, how much you weigh, and whether you have any physical health problems can all impact your ability to do the test.

Like with the other SFST’s, the officers investigating DC DUI’s are not trained to interpret an individual’s nervous or anxious behavior as an impediment to successfully completing the test.  In addition, like with the other SFST’s, the officers do not tell the person what cues of impairment they are looking for.  And, again, like the Walk and Turn Test, this test requires that a person exhibit unusual physical movements to somehow prove their sobriety.  For example, if you saw someone standing on the street standing with one foot raised six inches, you would probably wonder what they were doing.

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This blog is the second part of a three part series discussing the standardized field sobriety tests police officers will administer as part of a DC DUI and DWI traffic stop.  The first part discussed the horizontal gaze nystagmus test (or “HGN”).  This part discusses the second test, which is the walk and turn test. alcohol-1342726-m

The walk and turn test requires that you walk nine steps heel to toe along a straight line, pivot three steps to turn, and then walk nine steps back heel to toe.  Police officers, who are certified to administer this test by NHTSA, look for eight cues of impairment during this test.  Like with the HGN test, the officers do not tell you what the cues are and they are the sole judge of whether you pass or fail the test.  The eight possible cues are:

  • If you cannot keep balance while listening to the instructions;
  • If you begin before the officer finishes the instructions;
  • If you stop while walking to regain balance,
  • If you do not touch heel-to-toe while walking;
  • If you step off the line;
  • If you use your arms to balance while walking or standing;
  • If you make an improper turn at the end of the first nine steps;
  • If you take an incorrect number of steps.

The main point of this test is to determine whether you can listen to instructions and follow them.  Supposedly, the ability (or inability) to perform this test is evidence of alcohol impairment.  However, in trial, I have asked police officers to step off the stand during cross-examination and asked them to perform the walk and turn test and have, on more than one occasion, witnessed the officer screw up the test.  Why?  Because they drank alcohol before taking the witness stand?  My impression is that they are nervous to do the test in front of the judge (note the irony).

In DC DUI and DWI investigation, officers are not trained to look for or interpret an individual’s nervous behavior as a possible cause for the inability to perform this test satisfactorily.  Often times, as well, police officers fail to give the instructions properly but, because no independent mechanism exists to verify the accuracy of the testing, it does not matter and they will make the arrest anyway.

Officers are trained to find an actual line on the ground (like a line on the sidewalk) when they administer the test in a DC DUI traffic stop.  However, they often just ask you to use an “imaginary” line.  The type of shoes you have on can impact your ability to perform the test.  Knee injuries, obesity, and whether the ground is at an incline can all negatively impact your ability to perform the test.  Police officers who administer this test are supposed to ask you if you have any health problems that could impact your ability to perform the test.  However, most people, whether they have health problems or injuries, simply don’t know what type of injuries would impact their ability to do this test.  I have never heard of any real life scenario where someone is required to walk heel to toe.

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officer-on-duty-542938-mThis blog is the first part of a three part series discussing the standardized field sobriety tests (or “SFST’s”) used to investigate a DC DUI or DWI stop.  If a DC police officer pulls someone over and suspects that the driver has been drinking, the officer will usually ask the person to step outside the vehicle and perform the SFST’s.  The SFST’s are made up of three tests.  Officers who administer the test have usually been certified by the National Highway Traffic Safety Administration (or “NHTSA”) to perform such tests.  Their certification typically consists of a 40 hour training course and a test at the end of the course, which requires them to administer the SFST’s exactly consistent with NHTSA standards.

The three tests consist of the Horizontal Gaze Nystagmus Test (or “HGN”), the walk and turn, and the one leg stand.  The walk and turn and one leg stand in the context of a DC DUI stop will be discussed in the next two posts.  With each test during the DC DUI investigation, the officer looks for specific cues of impairment to determine whether the person passes or fails to test.  Ultimately, if the officer perceives enough “cues” of impairment, he or she will make a DUI arrest.

The HGN is the test where the officers ask you to follow a pen or other stimulus with your eyes.  Many people mistakenly think the officer is just checking to determine whether you move your head while following the pen.  In reality, the officer is looking for specific types of nystagmus in each eye.  Nystagmus is an involuntary jerking of the eyes that is extremely subtle.

The first thing the officer looks for is whether the eyes show a lack of smooth pursuit, which is basically where the eyes move from side to side in a choppy manner (like a broken windshield).  The second cue is distinct and sustained nystagmus at maximum deviation.  The officer here will leave the stimulus at for about four seconds on each side to see if the eyes jerk in a “distinct and sustained” manner.  Finally, the officer checks for “onset of nystagmus prior to 45 degrees.”  This final cue is where the officer takes shorter passes on each side to a 45 degree angle to see if nystagmus (or the involuntary jerking of the eye) occurs.  The officer looks for these three cues in each eye for a total of six cues.

A typical DUI arrest will occur when the officer observes either four out of six or six out of six cues on the HGN (although I have had a case where the officer still made an arrest after only supposedly observing two of six).  Many problems can occur in the officer’s observation and interpretation of the HGN test.  For example, the lighting on the side of the road late at night (frequently where the test occurs) may not be sufficient to see these very subtle eye movements.  In addition, if the officer does not perform the tests exactly according to NHTSA’s standards, the results from the test are compromised.  Moreover, you cannot see what your eyes are doing during the test and typically no independent source confirms the officer’s observations.  There are also many things other than alcohol intoxication that cause nystagmus, including, among other things, caffeine, nicotine, and certain health issues.

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