Your Drunk Driving Case

Contents:

• Driving under the influence
• Formal Review Hearings
• Why Defend a DUI Case?
• Getting Your Hardship License
• 1st DUI conviction
• 2nd DUI conviction
• DUI Manslaughter
• Administrative suspension
• Mandatory Minimum DUI Penalties
• What is an Ignition Interlock Device?
• DUI Vehicle Impoundment
• DUI Forfeiture
• THE 20 MOST FREQUENTLY ASKED DUI QUESTIONS
• FIELD SOBRIETY TESTS: WHAT YOU NEED TO KNOW
• How To Calculate Your Estimated Blood Alcohol Content (BAC)
• Traffic Stops and Road Blocks
• NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

Driving under the influence

A person is guilty of the offense of driving under the influence and is subject to punishment as provided in the penalties section if the person is:

1. Driving or in actual physical control of a vehicle within this state, and
2. a. The person is under the influence of alcoholic beverages, any chemical substance set forth in s.877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired; or     
   
   b. The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or     
   
   c. The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

Notice that there are three ways for the state to prove the second element of a DUI charge. The second element can be proven solely based upon their normal faculties being impaired. This is the common method of proof when the arrested person refused to provide a breath sample and there was no cause for a blood sample to be taken. Normal faculties are defined as "the ability to see, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives."

The police started gathering evidence that the arrested's normal faculties were impaired the moment they started following the arrested's car. The police document the driving pattern, personal observations of the driver, and the driver's performance on the field sobriety tests.

The second and third way the state can prove a DUI is by the arrested's breath alcohol or blood alcohol content being at or over .08.

In most cases the arrested has done the field sobriety tests and provided a breath sample allowing the state to argue that the arrested's normal faculties were impaired and that his blood alcohol was over .08.

Defending a DUI

It may not be as easy as it sounds to be convicted of a DUI. The State of Florida must prove each one of these "elements" beyond and to the exclusion of every reasonable doubt. When evaluating a DUI case, my firm carefully views every aspect of the case, from the initial observation of the officer to the breath test.

These include:

• The driving pattern of the vehicle
• Road Conditions
• Weather conditions
• Lighting of the area
• Mechanical problems with vehicle
• Did the officer read you your rights
• Were you questioned
• Medical conditions that affect balance
• Witnesses who can testify as to number of drinks
• Was there probable cause for the stop
• Did the officer have a legal reason to request field sobriety tests
• Did the officer give the approved FST's
• Were the FST's administered properly
• Were the FST's given in a proper location
• Was there probable cause to arrest
• Were the proper procedures followed in the Breath Test
• If there was a refusal, was implied consent read
• How does the person arrested look on the FST video
• Does the FST video correlate with the BAC

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Formal Review Hearings

A DUI Has Two Components:

The first component of a DUI in the administrative component conducted by the DHSMV. This component deals exclusively with the suspension or revocation of the arrestee's license.

If you have been charged with DUI, you have TEN (10) calendar days from the date you were arrested to file for a Formal Review Hearing with the Department of Highway Safety and Motor Vehicles. Requesting a Formal Review Hearing accomplishes several objectives.

a) Even if the administrative hearing officer finds that the actions of the police were proper, your privilege to drive will be extended until after the hearing officer has ruled. Formal Hearings are usually held approximately 30 days after being requested.

b) If you prevail at the administrative hearing, your driving privileges will not be administratively suspended. (Note that your privilege to drive can still be suspended by the court in the criminal case).

c) The Formal Administrative Hearing will allow an opportunity for the police officers involved in your case to be subpoenaed and questioned regarding the legality of their actions. This can often provide insight into the strengths and weaknesses of the state's case.

If you chose to have The Law Office of Timothy Hessinger handle your case we will request the Formal Review Hearing, obtain and review all of the arrest and Intoxilyzer reports, subpoena the officers involved, question the officers at the hearing, and obtain a transcript of the hearing if necessary. Please do not allow 10 days to pass before contacting an attorney.

The second phase of a DUI is the criminal complaint brought against the defendant by the county of arrest.

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Why Defend a DUI Case?

The police are under great pressure from advocacy groups to make more DUI arrests. This has resulted in a larger number of 'borderline' cases, or, cases in which an arrest should not have been made at all. The prosecutor's burden in proving DUI is governed by the same rules of law and evidence required by the courts in most cases. However, unlike most charges, the arresting officer's testimony relies on his 'opinion' of your impairment relating to your ability to drive and your normal faculties. In addition, there may also be scientific evidence such as a breath test. In a typical DUI prosecution the state presents evidence regarding your driving pattern, your performance on 'field sobriety tests', and the results of a breath test. Although the evidence against a driver may seem strong at first glance, there are good defenses to the different segments of the state's case. A lack of evidence can be brought to the prosecutor's attention to secure a reduction to a lesser charge such as reckless driving, or possibly dismissal of the case.

Your Driving Pattern

Usually in a DUI case the officer documents what you did wrong, not what you did right. For instance, the officer's report may indicate you were weaving. However, officers usually don't document proper driving behavior such as your speed, you were not following other vehicles too closely, and you obeyed all traffic signs.

There may be other factors to consider such as: road condition (i.e. lack of lighting, road construction, adverse weather conditions, traffic congestion), confusing road signs, you're unfamiliarity with the area, and mechanical difficulties with your vehicle.

In addition, if the officer did not have a valid legal reason to stop your vehicle the court may exclude all evidence against you. This could result in the dismissal of your charge.

Field Sobriety Tests

As part of an officer's DUI investigation they typically request a driver to perform field sobriety tests. These tests usually include standing on one leg, touching your finger to your nose, reciting the alphabet, and walking each step with the heal of one foot touching the toe of another. The officer then 'scores' your performance on these tests to determine whether a driver should be arrested. Most people are surprised to learn the criteria for 'scoring' is very strict on the driver, i.e. more than one small mistake on a test is considered a failure. For example, the 'heal-to-toe' test has more than a dozen scoring criteria. If a driver misses or forgets more than one step the result is scored as a failure and the driver may be susceptible to arrest. This may be the case even if the driver has physical disabilities.

Generally, most police agencies videotape your performance of the field sobriety tests. I order a copy of the videotape and evaluate your performance of the field sobriety tests. We can determine if your performance on the tests is consistent with the officer's version in his police report. The videotape can be compelling evidence and a person who looks good performing the tests can often be a good candidate for a reduction of the DUI charge regardless of the 'score' given by the officer. See Field Sobriety Tests Tab for more detail.

The Breath Test

The breath test results may be inaccurate or unreliable for a variety of reasons. Inaccurate intoxilyzer readings could be caused by such things as the failure of the police to observe you for 20 minutes before the test, the lack of proper training and licensing of the operator, hiccups or burping during the test, high body temperature, radio interference and improper maintenance of the machine.

Sometimes, good performance of the field sobriety tests on videotape can cast doubt on the accuracy of a high breath test result. If a person looks perfectly fine on the videotape of the field sobriety tests how can the high reading on the intoxilyzer be accurate.

I can secure the intoxilyzer maintenance records and review the qualifications of the breath test operator. We can explore possible defenses such as whether your actual blood alcohol level may have been below the legal limit at the time of driving (even though it was above the per se limit at the time of testing). My office also uses state-of-the-art software to check the accuracy of your breath test results.

To fully understand your options, a thorough evaluation of the state's case by an experienced attorney is critical.

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Getting Your Hardship License

The Law Office of Timothy Hessinger can assist you in obtaining your hardship drivers license. Below is an outline of the requirements that you must complete before you will be eligible.

Consulting with an attorney before your administrative hearing is very important to ensure you have the best chance of driving during the suspension period.

Note : There are two types of suspensions. One is for the DUI conviction and the other is the administrative suspension for driving with a BAC of .08 or above.

How do I reinstate my license after a conviction for Driving Under the Influence (DUI)?

1st DUI conviction has a 180 day to 1 year revocation effective on conviction date. Before expiration of the revocation period, you may apply for a hardship license in the county where you live. DUI School completion and treatment, if referred, is required. You then can apply for a hardship license in any Administrative Reviews Office.

If you wait to reinstate your license until your revocation period ends, proof of enrollment or completion of DUI School and treatment, if referred, is required. Failure to complete the course within 90 days after reinstatement will result in cancellation of your driver license by the department until the course is completed. Failure to complete treatment may result in cancellation of your driver license.

At the time of reinstatement, whether for a hardship license or a full license, you must take the required examination, and pay $115 administrative fee and $60 reinstatement fee and any license fee required. Proof of liability insurance on the arrest date will be required or proof of liability coverage and a $15 reinstatement fee will be required.

2nd DUI conviction in more than 5 years will result in a 180 day to 1 year revocation. You cannot reinstate early for hardship. The full revocation period must be served before requesting driver license reinstatement.

2nd DUI conviction within a five-year period will result in a five-year revocation. You may apply for a hardship license at the Administrative Reviews Office after serving one year from effective date of revocation. DUI School, and treatment, if referred, must be completed and you must have a favorable recommendation from the Special Supervision Services Program to be eligible for a hardship license. If given approval to reinstate early for hardship, you must present this approval to the driver license office. You must remain in the Special Supervision Services Program for the duration of the revocation period to retain your hardship license.

If you wait to reinstate until after your revocation period ends, proof of enrollment or completion of DUI School, and treatment, if referred, is required. Failure to complete the course within 90 days after reinstatement will result in cancellation of your driver license by the department until the course is completed. Failure to complete treatment may result in cancellation of your driver license.

At the time of reinstatement, whether for a hardship license or a full license, you must take the required examination, and pay $115 administrative fee and $60 reinstatement fee and any license fee required. Proof of liability insurance on the arrest date will be required or proof of liability coverage and a $15 reinstatement fee will be required.

3rd DUI conviction in more than 10 years will result in a 180-day to 1-year revocation, unless the last 2 of the convictions fall within 5 years in which case a five-year revocation will apply. You are not eligible for a hardship license, but must wait out the revocation period. 

3rd DUI within a 10-year period will result in a 10-year revocation. You must serve 2 years of this revocation period before being eligible to apply for a hardship license in the Administrative Reviews Office. You must complete DUI School, and treatment, if referred, and have a favorable recommendation from the Special Supervision Services Program to be eligible for a hardship license. If given approval to reinstate early for hardship, you must present this approval to the driver license office. You must remain in the Special Supervision Services Program for the duration of the revocation period to retain your hardship license.

If you wait to reinstate until after your revocation period ends, proof of enrollment or completion of DUI School, and treatment, if referred, is required. Failure to complete the course within 90 days after reinstatement will result in cancellation of your driver license by the department until the course is completed. Failure to complete treatment may result in cancellation of your driver license.

At the time of reinstatement, whether for a hardship license or a full license, you must take the required examination, and pay $115 administrative fee and $60 reinstatement fee and any license fee required. Proof of liability insurance on the arrest date will be required or proof of liability coverage and a $15 reinstatement fee will be required.

4th DUI or Subsequent DUI Conviction will result in a permanent revocation. There is no provision for a hardship license.

DUI Manslaughter (single conviction) will result in a permanent revocation. You must wait 5 years before being eligible to apply for a hardship license in the Administrative Reviews Office. You must complete DUI School, and treatment, if referred, and have a favorable recommendation from the Special Supervision Services Program to be eligible for a hardship license. If given approval to reinstate for a hardship license, you must present this approval to the driver license office, pay a $115 administrative fee, a $60 reinstatement fee and any applicable license fee. Proof of liability insurance on the date of arrest or proof of current liability coverage and a $15 reinstatement fee will be required. You must remain in the Special Supervision Services Program for the duration of the revocation period to retain your hardship license.

How do a reinstate my license after an Administrative suspension for driving with an unlawful alcohol level .08 (you did the breath test) 

You will be suspended as of the arrest date for 6 months for the first offense and one year for any other offense of driving with a BAC of .08 or above. You will be given a 10-day permit on the date of the arrest. Once the permit has expired, then 30 days of the suspension must be served before the driver is eligible to apply for a hardship license.

You will be eligible for a hardship license on the first and any consecutive suspension, unless you have been convicted of DUI two or more times. You must provide proof of enrollment in a DUI School to the Administrative Reviews Office for consideration for a hardship license. If given approval to reinstate early for hardship, you must present this approval to the driver license office. Failure to complete the course within 90 days after reinstatement will result in cancellation of your driver license by the department until the course is completed. Treatment, if referred, is required. Failure to complete treatment will result in cancellation of your driver license.

If you reinstate after your revocation period ends, you must provide proof of DUI School enrollment or completion to the driver license office . Failure to complete the course within 90 days after reinstatement will result in cancellation of your driver license by the department until the course is completed. Treatment, if referred, is required. Failure to complete treatment will result in cancellation of your driver license.

At the time of reinstatement, whether for a hardship license or a full license, you must take the required examination, and pay $115 administrative fee and $35 reinstatement fee and any license fee required. Proof of liability insurance on the arrest date will be required or proof of liability coverage and a $15 reinstatement fee will be required.

How do I reinstate my license after an administrative suspension for refusal to submit to a breath/urine test ? 

You will be suspended as of the arrest date for one year for the first offense and 18 months for any consecutive offenses. You will be given a 10-day permit on the date of arrest and when the permit expires must serve 90 days of the suspension before the driver is eligible to apply for a hardship license on the first suspension. No hardship license is permitted if you have refused to submit two or more times.

You must provide proof of enrollment in a DUI School to the Administrative Reviews Office for consideration for a hardship license. If given approval to reinstate early for hardship, you must present this approval to the driver license office. Failure to complete the course within 90 days after reinstatement will result in cancellation of your driver license by the department until the course is completed. Treatment, if referred, is required. Failure to complete treatment will result in cancellation of your driver license.

If you reinstate after your revocation period ends, you must provide proof of DUI School enrollment or completion to the driver license office. Failure to complete the course within 90 days after reinstatement will result in cancellation of your driver license by the department until the course is completed. Treatment, if referred, is required. Failure to complete treatment may result in cancellation of your driver license.

At the time of reinstatement, whether for a hardship license or a full license, you must take the required examination, and pay $115 administrative fee and $35 reinstatement fee and any license fee required. Proof of liability insurance on the arrest date will be required or proof of liability coverage and a $15 reinstatement fee will be required.

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What is an Ignition Interlock Device?     

An ignition interlock device is an in-car alcohol breath screening device that prevents a vehicle from starting if it detects a blood alcohol concentration (BAC) over a pre-set limit. The device, uses the same breath alcohol technology used by police as road side screening devices and is located inside the vehicle, near the driver's seat, and is connected directly to the engine's ignition system. 

Who is required to have an ignition interlock and for how long?     

Section 316.193, of the Florida Statutes requires Ignition Interlock Devices to be Installed on the Vehicles of Persons Convicted of DUI. 

What is the Cost?     

The cost of an Ignition Interlock device is $70 plus $67.50 per month for monitoring and calibration, plus applicable taxes. There is also a $100 refundable deposit or a $5 per monthly insurance charge.     
Installation is by appointment only. To schedule your Ignition Interlock device installation, call INTERLOCK SYSTEMS OF FLORIDA Central Installation Scheduling Number at: (407) 207-3337. 

How Does It Work? 

• Fuel cell technology
• Prevents the start of the vehicle with breath sample above .05
• Equipped with rolling retest capable of random testing while the car is running
• Data collected through wed-based reporting with access 24 hour a day, 7 days a week
• User funded

How to Apply? 

A person convicted of DUI who applies to the Division of Driver Licenses for driver license reinstatement will receive an instruction letter regarding the Ignition Interlock requirement. If the person is otherwise eligible, a driver license will be issued.     

The convicted person will receive a letter from the department requiring that the device be installed by a certain date. If the convicted person fails to have the device installed by that date, the driver license will be cancelled.     

For further information contact: 

Florida Department of Highway Safety & Motor Vehicles 

(850) 487-1227     
www.hsmv.state.fl.us 

For more details on the Ignition Interlock see: https://alcolockusa.com/locations/florida-ignition-interlock//

Related Florida Statute: 

316.1937 IGNITION INTERLOCK DEVICES 

1. Any person who is convicted of driving under the influence in violation of s. 316.193 shall not operate a motor vehicle unless that vehicle is equipped with a functioning ignition interlock device installed in such a manner that the vehicle will not start if the operator's blood alcohol level is in excess of 0.05 percent or as otherwise specified by the court. The court may require the use of an approved ignition interlock device for a period of not less than 6 months, if the person is permitted to operate a motor vehicle, whether or not the privilege to operate a motor vehicle is restricted, as determined by the court. The court, however, shall order placement of an ignition interlock device in those circumstances required by s. 316.193. 

2. If the court imposes the use of an ignition interlock device, the court shall: (a) Stipulate on the record the requirement for, and the period of, the use of a certified ignition interlock device. (b) Order that the records of the department reflect such requirement. (c) Order that an ignition interlock device be installed, as the court may determine necessary, on any vehicle owned or operated by the person. (d) Determine the person's ability to pay for installation of the device if the person claims inability to pay. If the court determines that the person is unable to pay for installation of the device, the court may order that any portion of a fine paid by the person for a violation of s. 316.193 shall be allocated to defray the costs of installing the device. (e) Require proof of installation of the device and periodic reporting to the department for verification of the operation of the device in the person's vehicle. 

3. If the court imposes the use of an ignition interlock device on a person whose driving privilege is not suspended or revoked, the court shall require the person to provide proof of compliance to the department within 30 days. If the person fails to provide proof of installation within that period, absent a finding by the court of good cause for that failure which is entered in the court record, the court shall notify the department. 

4. If the court imposes the use of an ignition interlock device on a person whose driving privilege is suspended or revoked for a period of less than 3 years, the department shall require proof of compliance before reinstatement of the person's driving privilege. 

5. (a) In addition to any other provision of law, upon conviction of a violation of this section the department shall revoke the person's driving privilege for 1 year from the date of conviction. Upon conviction of a separate violation of this section during the same period of required use of an ignition interlock device, the department shall revoke the person's driving privilege for 5 years from the date of conviction. (b) Any person convicted of a violation of subsection (6) who does not have a driver's license shall, in addition to any other penalty provided by law, pay a fine of not less than $250 or more than $500 per each such violation. In the event that the person is unable to pay any such fine, the fine shall become a lien against the motor vehicle used in violation of subsection (6) and payment shall be made pursuant to s. 316.3025(4). 

6. (a) It is unlawful to tamper with, or to circumvent the operation of, a court-ordered ignition interlock device.     

(b) It is unlawful for any person whose driving privilege is restricted pursuant to this section to request or solicit any other person to blow into an ignition interlock device or to start a motor vehicle equipped with the device for the purpose of providing the person so restricted with an operable motor vehicle.     

(c) It is unlawful to blow into an ignition interlock device or to start a motor vehicle equipped with the device for the purpose of providing an operable motor vehicle to a person whose driving privilege is restricted pursuant to this section.     

(d) It is unlawful to knowingly lease or lend a motor vehicle to a person who has had his or her driving privilege restricted as provided in this section, unless the vehicle is equipped with a functioning, certified ignition interlock device. Any person whose driving privilege is restricted under a condition of probation requiring an ignition interlock device shall notify any other person who leases or loans a motor vehicle to him or her of such driving restriction. 

7. Notwithstanding the provisions of this section, if a person is required to operate a motor vehicle in the course and scope of his or her employment and if the vehicle is owned by the employer, the person may operate that vehicle without installation of an approved ignition interlock device if the employer has been notified of such driving privilege restriction and if proof of that notification is with the vehicle. This employment exemption does not apply, however, if the business entity which owns the vehicle is owned or controlled by the person whose driving privilege has been restricted. 

8. In addition to the penalties provided in this section, a violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.     

History.--s. 1, ch. 90-253; ss. 16, 19, ch. 91-255; s. 18, ch. 94-306; s. 141, ch. 99-248; s. 4, ch. 2002-263. 

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DUI Vehicle Impoundment 

316.193(6) 

Unless the family of the defendant has no other transportation: 

1ST CONVICTION = 10 DAYS 

2ND CONVICTION WITHIN 5 YEARS = 30 DAYS 

3RD CONVICTION WITHIN 10 YEARS = 90 DAYS 

Impoundment or immobilization must not occur at the same time as incarceration. The court may dismiss the order of impoundment of any vehicle that are owned by the defendant if they are operated solely by the employees of the defendant or any business owned by the defendant. 

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DUI Forfeiture: A DUI Can Cause You to Lose your Vehicle Permanently 

Believe it or not, the state of Florida may permanently take away the vehicle of a motorist charged with a DUI without paying a dime! 

This proper name for this action is a "civil forfeiture." Civil forfeiture is widely known from television and movies when the expensive cars and houses of wealthy drug lords are seized by the government and sold off in public auctions. The money raised from the auctions goes into a government fund without any compensation going to the former owner of the auctioned item. This happens in real life, and can happen to your vehicle if you get a second DUI in Florida. 

How does the government accomplish this task? It is accomplished through what is called a civil forfeiture proceeding. The fact that it is a "civil" proceeding is bad for the accused because civil proceedings only require the state to overcome a "preponderance of the evidence" standard. This standard means that the state only needs to show by a 51% to 49% margin that it has the right to take your vehicle away (see below for statute). This is far less than the burden that is required in "criminal" court like a DUI prosecution. In a DUI criminal case, the State must prove the case "beyond a reasonable doubt" which is like saying the state has to prove the case with 99% certainty. The scary result is that someone who is found not guilty of his or her DUI charge could still lose the vehicle as a result of the findings of the civil forfeiture proceeding. 

Now in Florida you will always lose your vehicle temporarily at the time of arrest. Whether this temporary loss turns into a permanent loss is determined at the later civil forfeiture proceeding. These civil forfeiture proceedings have a current backlog hearing time of approximately six months, so you could be waiting a while even to find out whether you will ever get your vehicle back. 

This law has a number of critics and Tim Hessinger is poised to go to bat for you to prevent the unfair application of this harsh law. There may be variety of defenses and remedies available to you, but only if your attorney raises them in time. Therefore, whichever attorney you choose, it's extremely important you contact an attorney ASAP if your vehicle is seized in connection with a DUI arrest. 

The DUI VEHICLE FORFEITURE statute reads as follows. 

Florida Statute 322.34(9)(a) A motor vehicle that is driven by a person under the influence of alcohol or drugs in violation of s. 316.193 is subject to seizure and forfeiture under ss. 932.701 -932.707 and is subject to liens for recovering, towing, or storing vehicles under s. 713.78 if, at the time of the offense, the person's driver's license is suspended, revoked, or canceled as a result of a prior conviction for driving under the influence. 

(b) The law enforcement officer shall notify the Department of Highway Safety and Motor Vehicles of any impoundment or seizure for violation of paragraph (a) in accordance with procedures established by the department. 

(c) Notwithstanding s. 932.703(1)(c) or s. 932.7055, when the seizing agency obtains a final judgment granting forfeiture of the motor vehicle under this section, 30 percent of the net proceeds from the sale of the motor vehicle shall be retained by the seizing law enforcement agency and 70 percent shall be deposited in the General Revenue Fund for use by regional workforce boards in providing transportation services for participants of the welfare transition program. In a forfeiture proceeding under this section, the court may consider the extent that the family of the owner has other public or private means of transportation. 

In layman's terms, the state has to prove two things to permanently take your car away and sell it at an auction: 

1. You must be arrested for DUI after January 1, 2000; and
2. You must have been driving on a license that had already been suspended, cancelled, or revoked for a prior DUI.

The Law Office of Timothy Hessinger can assist you with this issue in several ways. First, we can examine the seizure and determine if it was proper. Second, we can petition the court to return the vehicle if the forfeiture would result in a hardship to other members of your family who are dependent on the vehicle. 

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THE 20 MOST FREQUENTLY ASKED DUI QUESTIONS 

1. What do police officers look for when searching for drunk drivers on the highways? 

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration: 

• Turning with a wide radius
• Straddling center of lane marker
• "Appearing to be drunk"
• Almost striking object or vehicle
• Weaving
• Driving on other than designated highway
• Swerving
• Speed more than 10 mph below limit
• Stopping without cause in traffic lane
• Following too closely
• Drifting
• Tires on center or lane marker
• Braking erratically
• Driving into opposing or crossing traffic
• Signaling inconsistent with driving actions
• Slow response to traffic signals
• Stopping inappropriately (other than in lane)
• Turning abruptly or illegally
• Accelerating or decelerating rapidly
• Headlights off

*Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety. 

2. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say? 

You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication -- and it may explain the odor of alcohol on the breath. 

3. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test? 

The law on this varies from state to state. As a general rule, however, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some states, there is a right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one. 

4. What is the officer looking for during the initial detention at the scene? 

The traditional symptoms of intoxication taught at the police academies are: 

• Flushed face
• Red, watery, glassy and/or bloodshot eyes
• Odor of alcohol on breath
• Slurred speech
• Fumbling with wallet trying to get license
• Failure to comprehend the officer's questions
• Staggering when exiting vehicle
• Swaying/instability on feet
• Leaning on car for support
• Combative, argumentative, jovial or other "inappropriate" attitude
• Soiled, rumpled, disorderly clothing
• Stumbling while walking
• Disorientation as to time and place
• Inability to follow directions

5. What should I do if I'm asked to take field sobriety tests? 

There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, alphabet recitation, modified position of attention, fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests. Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitable"fails"; Thus, in most cases a polite refusal may be appropriate. 

6. Why did the officer make me follow a penlight with my eyes to the left and right? 

This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for eye jerking); if this occurs sooner than 45 degrees, it theoretically indicates an excessive blood-alcohol concentration. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the jerking when the eye is as far to the side as it can go. This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement. 

7. Should I agree to take a chemical test? What happens if I don't? 

The consequences of refusing to submit to a blood, breath or urine test varies according to the state. Generally, there are three adverse results: 

Your driver's license will be suspended for a period of time, commonly three, six or twelve months. This is true even if you are found not guilty of the DUI charge. 

• In some states, refusal is a separate crime; in others, it adds jail time to the sentence for the DUI offense.
• The fact of refusal can be introduced into evidence as "consciousness of guilt" Of course, the defense is free to offer other reasons for the refusal. Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.
• Do I have a choice of chemical tests? Which should I choose?

In most states, you have a choice -- usually, of breath, blood or urine (some states, however, do not offer urinalysis). If you choose breath, many jurisdictions permit you to have a second test or blood or urine; this is because a breath sample is not saved and so cannot later be re-analyzed by the defense. Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis. Thus, if you are confident that you are sober, a blood sample is the wise choice; urine, being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit. 

9. The officer never gave me a Miranda warning: Can I get my case dismissed? 

No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. Of more consequence in most cases is the failure to advise you of the state's "implied consent" law that is, your legal obligation to take a chemical test and the results if you refuse. This can effect the suspension of your license. 

10. Why am I being charged with TWO crimes? 

The traditional offense is "driving under the influence of alcohol" (DUI) or, in some states, "driving while intoxicated" (DWI). In recent years, however, 46 or 48 states have also enacted a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration (either .08% or .10%). In those states, BOTH offenses are charged. The defendant can even be convicted of both, but can be punished for only one. If the case involves a refusal to submit to chemical testing, of course, only the traditional offense will be charged. 

11. The officer took my license and served me with a notice of suspension after the breath test: How can he do that if I'm presumed innocent? 

Agreed, it is blatantly unfair. But the law in most states having a "per se" statute (see question #10) provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit). 

12. Can I represent myself? What can a lawyer do for me? 

You can represent yourself -- although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues. What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field -- no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc. 

13. How can I find a qualified drunk driving lawyer? 

The best way to find a good DUI/DWI lawyer is by reputation. There are a few attorneys who have national reputations; these, of course, are expensive. Thus, the best approach is to ask other attorneys in the jurisdiction: Who is the best in the area? If you do not know any attorneys, go to the local courthouse and ask people like bailiffs, clerks and public defenders: Who would THEY go to if arrested for drunk driving? Contrary to popular belief, it is not a wise idea to obtain a referral from the local Bar association or referral service. There are rarely any qualifications required for an attorney to be on a referral list; he usually only has to ask to be placed on it. When you call, you are simply given the next name on that list. 

When you meet with the attorney, make sure of three things: 

• He has extensive experience in DUI/DWI litigation;
• He has a reputation for going to trial in appropriate cases, rather than just "copping out" his clients; and
• The financial terms of representation are clear.

14. What will it cost to get a lawyer? 

This varies, of course, by the reputation and experience of the lawyer and by the geographic location. As with doctors, generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each. The range of fees is huge. A general practitioner in a small community may charge only $300; a DUI specialist with a national reputation may charge $7500 and up. In addition, the fee may vary by such other factors as: 

1. Is the offense a misdemeanor or felony?
2. If prior convictions are alleged, the procedures for attacking them may add to the cost.
3. The fee may or may not include trial or appeals.
4. Administrative license suspension procedures may also be extra.
5. The lawyer may charge a fixed fee, or he may ask for a retainer in advance -- to be applied against hourly charges.
6. Costs such as witness fees, independent blood analysis, service of subpoenas, etc., may be extra. Whatever the fee quoted, you should ask for a written agreement and make sure you understand all the terms.

15. What is the punishment for drunk driving? 

Again, this varies according to the laws of the state and the customs of the local jurisdiction. Generally speaking, a conviction for a first offense may involve a fine, a license suspension or restriction, attendance at a DUI education course for a period of time, and probation for perhaps three years. A short jail sentence may or may not be required; for a second offense, it almost certainly will. Additional punishment may involve community service, ignition interlock devices and/or impounding of the vehicle. For an example of punishment in DUI cases, see the sentencing chart for California in the main menu. 

16. What is a sentence "enhancement"? 

Most states increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense -- usually within five or seven years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include: 

1. A child was in the car at the time.
2. The defendant was traveling 20 or 30 miles over the speed limit at the time.
3. The blood-alcohol concentration was over .15%.
4. The defendant refused to submit to a chemical test.
5. There was property damage or injury.
6. In most states, the existence of any personal injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even, in a few states, second degree murder charges.

17. What is a "rising BAC defense"? 

It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 45 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested. Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .12%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .08%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below. 

18. What is "mouth alcohol"? 

"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat can have a huge impact. Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes of taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. 

19. What defenses are there in a DUI case? 

Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:     

Driving: Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of accidents, there are no witnesses to his being the driver of the vehicle.     

Probable cause: Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.     

Miranda: Incriminating statements may be suppressed if warnings were not given at the appropriate time.     

Implied consent warnings: If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect admissibility of the test results -- as well as the license suspension imposed by the motor vehicle department.     

"Under the influence": The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Witnesses can testify that you appeared to be sober.     

Blood-alcohol concentration: There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.     

Testing during the absorptive phase: The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 45 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.     

Retrograde extrapolation: This refers to the requirement that the BAC be "related back" in time from the test to the driving (see question #17). Again, a number of complex physiological problems are involved here.     

Regulation of blood-alcohol testing: The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.     

License suspension hearings: A number of issues can be raised in the context of an administrative hearing before the state's department of motor vehicles. 

20. I have some questions about my DUI case. Where can I go for answers? 

An experienced DUI/DWI/drunk driving lawyer is the best source, of course. Short of that: 

-Go to a law library (at courthouses and law schools) and research DUI law and blood-alcohol analysis. Try one of these books:     

Drunk Driving Defense, 4th edition by Lawrence Taylor (New York: Aspen Law and Business, 800-638-8437).     

California Drunk Driving Defense, 2nd. edition (San Francisco: Bancroft-Whitney). Hardcover, 886 pages. The California version of Drunk Driving Defense. To order, call the publisher at (800) 313-9339. 

Written by Lawrence Taylor - Dean of the National College DUI Defense for 1995.     
3780 Kilroy Airport Way, Suite 200     
Long Beach, CA 90806 

Written by Lawrence Taylor - Dean of the National College DUI Defense for 1995.     
3780 Kilroy Airport Way, Suite 200     
Long Beach, CA 90806 

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FIELD SOBRIETY TESTS: WHAT YOU NEED TO KNOW 

Should I agree to Submit to Field Sobriety Tests? 

Unfortunately, the answer here is the same answer you will get to many generalized questions like the one above: "It depends." It depends on the facts and circumstances of the situation. If you think you are dexterous enough to pass the Field Sobriety Tests, then the law enforcement officer may decide not to arrest you if you perform well on the tests. If you refuse to participate in a Field Sobriety Test, the law enforcement officer will have to make his or her decision to arrest the driver based on the evidence he has gathered up to that point (i.e. driving, speech, balance). Refusing the Field Sobriety Test, however, will likely result in arrest if the law enforcement officer observed evidence indicating impairment (i.e. red, watery eyes; fumbling with your wallet to get your driver's license). 

But keep in mind that your performance on Field Sobriety Tests is scrutinized heavily and little mistakes and can give the officer the impetus to make arrest. While every mistake you make on a Field Sobriety Test is noted by the law enforcement officer, law enforcement officers' observations themselves are subject to scrutiny because field sobriety tests are usually video-taped in Pinellas County. You will commonly perform the tests in front of a closed business or in an empty parking lot, and may be given the chance to perform the test again if taken in to the police station. If you decide to perform the Field Sobriety Tests it is critical you listen to the law enforcement officer's directions very attentively and perform the actions instructed by the officer exactly or as close to it as you can because the video-taped tests are extremely important evidence for or against you depending on your performance. 

If you decide to take the Field Sobriety Tests, clearly articulate to the law enforcement officer any physical or mental problems that might affect your ability to perform the tests. You do not have to repeat your physical or mental problem to the officer every other sentence, just make sure you tell the officer up front exactly what your physical or mental problem is and how it affects your mental and physical capacities. 

The Tests 

If you are charged with a DUI/DWI/drunk driving and had submitted to a Field Sobriety Test, your criminal DUI case in court will likely include testimony regarding the field sobriety testing. Some of the more popular Field Sobriety Tests are:     
*the one-leg stand     
*the walk-and-turn     
*the horizontal gaze nystagmus (HGN)     
These 3 tests have gained prominence in recent years as seemingly effective, objective, easy to administer methods of determining impairment. Unfortunately these tests are commonly performed by law enforcement without adequate training. Then the results of these tests are presented by the prosecution in court, with one goal in mind. To obtain a conviction! Unless these tests are subject to exacting scrutiny by defense lawyers, a jury may be swayed by their purported "objective and scientific" nature. Although FST's seem simple enough for some sober people to perform, it is a defense lawyer's duty to demonstrate that these initial observations are not always as conclusive as one might think. The single best way to call these evaluations into doubt is by knowing how these FST's work and presenting a thorough and well-prepared cross-examination. 

THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION'S FIELD SOBRIETY TESTS 

Law Enforcement's Field Sobriety Testing Manual 

Police officers are trained to administer road side field sobriety tests using the National Highway Traffic Safety Administration's Manual. Officers typically take a course taught by a National Highway Traffic Safety Administration (NHTSA) Instructor to learn the proper administration of the tests. For each of the standard NHTSA tests, a good DUI lawyer will want to address point by point, the inherent inadequacies of the officers' instructions, demonstration, administration and scoring. Each test will be discussed below. 

THE ONE LEG STAND     
In order for the One-Leg Stand test to be properly administered the law enforcement officer MUST: 

1. Tell the subject to stand with feet together, and arms at side.
2. Tell the subject not to start the test until instructed to do so.
3. Ask the subject if they understand.
4. Tell the subject to stand on one foot, with the other foot held straight about six inches off the ground, toes pointed forward and parallel to the ground.
5. Demonstrate the stance;
6. Tell the subject to count from 1 to 30, by thousands.
7. Demonstrate the count for several seconds.
8. Ask the subject whether they understand; if not, re-explain whatever is not understood.
9. Tell the subject to begin.
10. Allow the subject to resume the test at the point of interruption, should the subject stop or put the foot down, and not require that the count begin again at "one thousand and one".

During the test, officers are trained to look for the following validated clues as signs of impairment.     

*Swaying.     
*Putting the foot down.     
*Hopping.     
*Raising the arms from the sides (6 inches or more). 

Standardized Scoring of One-Leg Stand 

The test is to be scored objectively, giving one point for each indicia (clues indicated above) of intoxication. Importantly, only one point is to be given per indicia regardless of the number of times that indicia manifests it self. For example, even if a suspect hops four times during the test, his score would only be a one. It is also imperative to recognize that points are only to be given for those indicia specified by NHTSA. Officers are encouraged to make a note of other signs of intoxication, but are only to score the test as to those indicia specified by NHTSA. If a suspect exhibits 2 indicia of intoxication on the One Leg Stand, he fails the test. However, many officers do not employ this objective method of scoring. Instead, if a suspect does not perform up to the officer's expectations, he is arrested. If the officer in your case graded your client subjectively, Tim Hessinger can bring to light the fact that although an objective, nationally approved method for scoring a suspect's performance on this test is possible, this officer decided that his personal impression of the suspect's faculties was more reliable. This deviation from the national standards often results in jurors not believing the arresting officer's version of the facts.     
THE WALK AND TURN TEST     

The Walk and Turn test requires that the officer: 

1. Always begin by having the subject assume the heel-toe stance.
2. Verify that the subject understands that the stance is to be maintained while the instructions are given.
3. Cease giving instructions if the subject breaks away from the stance, and have the subject resume the stance before continuing.
4. Tell the subject that they will be required to take 9 heel-to-toe steps down the line, to turn, and to take 9 heel-to-toe steps up the line.
5. Demonstrate several heel-to-toe steps.
6. Demonstrate the turn.
7. Tell the subject to keep the arms at the sides, to watch the feet, to count the steps aloud, and not stop walking until the test is completed.
8. Ask the subject whether they understand; if not, re-explain whatever is not understood.
9. Tell the subject to begin.
10. Allow the subject to resume from the point of interruption, and not from the beginning, should the subject stagger or stop.

During the test, officers are trained to look for the following validated clues as signs of impairment.:     

*Loses balance during instructions (breaking away from the heel-toe stance).     
*Starts walking too soon.     
*Stops while walking.     
*Misses heel-to-toe while walking (misses by at least one-half inch).     
*Raises arms (at least six inches or more) from side while walking.     
*Steps off the line.     
*Turns improperly.     
*Takes the wrong number of steps.     
*Standardized Scoring     

A point is to be given for each indicia (clue) manifested by the suspect. As with the one leg stand, a score of 2 is unsatisfactory. 

THE HORIZONTAL GAZE NYSTAGMUS TEST     
The Horizontal Gaze Nystagmus (HGN) is essentially a measurement of eye movement. Nystagmus means a jerking of the eye. A person under the influence of alcohol will often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes.     
The jerking of the eye measured by this test is measured three different ways. The first is to measure the angle of onset of the nystagmus. By measuring the angle at which the eye begins jerking, an officer can, theoretically, roughly estimate BAC. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles (less than 45 degrees). So in other words, according to the NHTSA, an impaired person's eyes will jerk more often while the person is looking straight ahead and slightly right or left than a sober person's eyes would.     
The second method is to determine whether the nystagmus becomes more "distinct" when the eye is moved to a lateral extreme. In other words, under non-impaired circumstances the jerking of the eye should be become much more prominent when the person follows the officer's pen or flashlight to the extreme right or left. While an impaired person's eyes may be jerking consistently throughout the test. The third technique is to look for a lack of "smooth pursuit"; that is, rather than following a moving object smoothly, the eye jumps or tugs. 

To administer the test, the officer is to: 

1. Hold the stimulus (usually flashlight or pen)12-15 inches in front of the subject's face. 
2. Keep the tip of the stimulus slightly above the subject's eyes. 
3. Always move the stimulus smoothly. 
4. Always check for all 3 clues in both eyes. 
5. Check the clues in this sequence-lack of smooth pursuit; distinct nystagmus at maximum deviation; onset of nystagmus prior to 45 degrees. 
6. Always check for each clue at least twice in each eye. 

The law enforcement officer looks for only three clues:     

*Lack of smooth pursuit.     
*Distinct nystagmus at maximum deviation.     
*Onset of nystagmus prior to 45 degrees.     

A point is to be given for each indicia manifested by the suspect. As there are six clues (three for each eye) of HGN, a score of 4 is unsatisfactory. 

NOTE: Sometimes, an officer will encounter a disabled driver who cannot perform one of the Field Sobriety Tests just mentioned. In such cases, other tests such as counting aloud, reciting the alphabet, or finger dexterity tests (i.e. touching your finger to nose) may be administered. 

The Interested, Imperfect Officer 

A well trained DUI lawyer should show the jury from the outset that this officer; even with his shiny badge and blue uniform, has an interest in the outcome of this case and is capable of making mistakes. Right from the start, your lawyer should ask if it is possible that the officer was wrong in his conclusion that his client was impaired. His response should be used against him in closing argument, whatever it is. If he says yes, your lawyer can suggest to the jury that the arresting officer is not even sure the driver was intoxicated. If the law enforcement officer never makes a mistake, he's done your work for you. He's an egomaniac and the jury will know it. Your lawyer should also show the jury that the officer has only told them half the story. This can be accomplished by asking the following questions. First, ask if there is any record of the arrest other than the officer's report and testimony. Then, go through the 20 possible indicia of intoxication. Verify that the officer's report indicates that the arrested citizen manifested only a few of these conditions. Ask why the officer did not write down that your client did not fumble with wallet and had no trouble getting out of his car or that he was able to converse intelligently without slurring his words or stuttering. Ask why he only wrote down the things he thought the driver did wrong. Show the jury that this officer was more interested in creating a record which would support his decision to arrest than he was in making an accurate record of the events as they transpired. Counsel must show the jury that the FST's in your particular case, as well as in most cases, are merely administered as a formality and for purposes of gathering corroborating evidence. The officer has almost always already made up his mind that the suspect is under the influence by the time the tests are given.     
Your lawyer should also consider requesting copies of the arrest reports of this officer for the month before and after the current arrest. Many officers will invariably testify that the suspects they arrest fumble with their wallet, sway exactly 4 inches and touch down at 19 seconds on the one-leg-stand. If your lawyer can show a pattern of Xeroxed symptoms, he will go far in discrediting the officer. 

The Nervous Client 

At trial, the officer is likely to state that the driver fumbled with is wallet, slurred his words and seemed nervous or confused. The stress induced by a road side confrontation with the police is enough to cause even the most well spoken individual to stutter and the most coordinated to fumble and falter. It is important to paint an intimidating picture in the jury's minds. Your attorney should ask the officer if it is normal for people to be nervous when confronted by the police. Another strategic question is to ask a burly officer his height and weight. He should also be asked if he pointed his flashlight in the suspect's face. It's critical to get him to admit he is trained to use a forceful tone and demeanor with suspects in order to establish his command over confrontational situations in the field. The officer should be asked if he inquired whether the person stopped had any infirmity, mental or physical, which would preclude him from successfully completing this test. Show the jury the officer did not really care whether the FST's would be accurate with regard to your client. Showing the jury that the only thing the officer was interested in was gathering incriminating evidence, is a good way to discredit him. 

Unnatural Tasks 

The prosecution will invariably seek to show that the FST's requested the arrestee were such that any sober individual could easily perform them. Your counsel must show the opposite. The officer will likely be asked by the prosecutor to demonstrate the ease with which these tests are performed. On cross examination, an experienced DUI lawyer will get the officer to admit that practice makes perfect. The officer should also be asked how many times he has performed these FST's. This will show the jury that this battery of tests was foreign to the driver. 

Poor Instructions     

Often the arresting officer will decide a suspect has failed a particular FST due to inadequate performance when in fact is was the failure of the officer to explicitly describe what he wanted the driver to do. If the driver was merely told to tip his head back, hold out his arms out to the side palms up and touch his finger to his nose, he should not fail the test merely because he did not touch the tip of his finger to the tip of his nose. If any portion of his finger touched any part of his nose, he was just doing as he was told, and doing it well. If the officer states the subject swayed while performing the One Leg Stand or any FST for that matter, then he should be asked if he told the driver not to sway. When he says no, it will confirm that the driver was judged on criteria he was not told would be on the test. Last, your lawyer should ask the jurors to try the one leg stand during their deliberations. 

Unfavorable Conditions 

Perhaps it was a dark and stormy night when the driver was required to perform FST's on the road side. Perhaps the road was steeply graded or the emergency lane was filled with loose gravel. Maybe the citizen was asked to perform the one leg stand and walk and turn in 5 inch stiletto heels. If the conditions under which the driver was administered these tests were poor, it will usually offend the jury. Once it has been established that conditions for FST administration were not ideal, ask the officer should be asked if he considered giving the driver the test battery in the dry, warm, level, and well lit conditions of the police station. This will show the jury that the officer was holding all the cards in administering these tests and never gave your client a fair shake. 

What Can You Do? 

Despite the seemingly objective and scientific nature of the state's Field Sobriety Tests; and despite the effect that scientific testimony often carries substantial weight with a jury, the credibility of the state's impairment detection methods can effectively be brought into question by an experienced attorney. You can visit our page on how to select an attorney (insert hyperlink) for information on how to select an experience DUI attorney. With Tim Hessinger's 18 years of experience as a Pinellas County prosecutor and criminal defense attorney, you can be sure he has the experience and expertise to demonstrate the weaknesses inherent in Field Sobriety Testing. 

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How To Calculate Your Estimated Blood Alcohol Content (BAC) 

The estimated percent of alcohol in the blood by number of drinks in relation to body weight can be estimated by: 

1. Counting your drinks. Remember: 1 drink equals 1 ounce of 100-proof liquor, one five ounce glass of table wine or one 12-ounce bottle of regular beer.     

2. Under number of "drinks" and opposite "body weight" find the percent of blood alcohol listed by using the table below. 

3. After finding this number, subtract the percent of alcohol taken in during the time elapsed since your first drink. This figure is .015% per hour. For example: 180 lb. man - 8 drinks in 4 hours / .167% minus (.015x4) = .107% 

DRINKS 

These numbers are approximate. There are many other factors that effect a person's BAC. Do not assume you can drink a specific number of drinks and not be arrested. Remember that your ability to operate a motor vehicle may be affected before your BAC reaches .08 

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Traffic Stops and Road Blocks 

A seizure takes place under the Fourth Amendment whenever a person's freedom of movement is terminated by an instrumentality put in place by law enforcement officers to terminate that freedom. It is a seizure even if the person stopped is not the one police intended to stop. Thus, a seizure occurred where police put a roadblock across both lanes of a highway. Clearly, the use of such techniques for various kinds of traffic enforcement that is tempting because it permits law enforcement to confront a large number of drivers in a relatively short period of time in an environment structured and controlled by police. It does, however, have a great potential for abuse. Such stops are made without probable cause or reasonable suspicion. Accordingly, officers cannot randomly stop drivers to check licenses and registrations, where there is "no empirical evidence" that such stops promotes highway safety. 

Road blocks have been frequently been used for DUI investigations. Thus, in State v. Jones, the Florida Supreme Court established standards for this procedure. First, the roadblock must be established and operated according to detailed guidelines regarding the selection of vehicles, detention techniques, assignments and the disposition of vehicles so that little discretion is left to the officers conducting the road block. 

An arrest that is associated with a road block must be carefully scrutinized to ensure that law enforcement followed all the required procedures. Attorney Timothy Hessinger carefully evaluates motor vehicle stops and determines whether the government complied with all of the legal requirements. If the government failed to comply, a motion to suppress is filed to knockout any evidence collected during and after the stop. 

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS 

November 2004, Page 51     

DWI -- Modern Day Salem Witch Hunts     
By Mimi Coffey     

DWI: Modern Day     
Salem Witch Hunts     

Judge Daryl Coffey of County Criminal Court number 8, in Tarrant County, Texas, once remarked to me that all a prosecutor has to do to win a DWI case is just make sure that the three letters 'DWI' are mentioned at least 15 times in a trial.1 It is this type of environment that has allowed history to repeat itself. All we have to do is look back to the Salem Witch Hunt trials of 1692 where 19 convicted 'witches' lost their lives on 'specter' evidence.2 Evidence in DWI trials has not come very far since 1692 when claims of apparitions only visible to their victims were enough to support execution of the accused. The greatest challenge to DWI practitioners these days and to those accused of DWI/DUI related crimes is that courtrooms have not kept pace with the science. Bad science is rubberstamped with approval by the majority of the judiciary as long as the government sponsors it.     

Horizontal Gaze Nystagmus     
The horizontal gaze nystagmus test, or HGN, is alleged to be 77% accurate (80% accurate with the W&T) in determining if a person is .10 BAC3 or more.4 The first problem with this test is the particularity. Police officers are not ophthalmologists trained in the detection of eye movements and or eye pathologies. There are 47 types of nystagmus in individuals, separate from Horizontal Nystagmus:     

(1) Acquired; (2) Anticipatory (induced); (3) Arthrokinetic (induced, somatosensory); (4) Associated (induced, Stransky's); (5) Audio kinetic (induced); (6) Bartel's (induced); (7) Brun's; (8) Centripetal; (9) Cervical (neck torsion, vestibular-basilar artery insufficiency); (10) Circular/Elliptic/Oblique (alternating windmill, circumduction, diagonal, elliptic, gyratory, oblique, radiary); (11) Congenital (fixation, hereditary); (12) Convergence; (13) Convergence-evoked; (14) Dissociated (disjunctive); (15) Downbeat; (16) Drug-induced (barbituate, bow tie, induced); (17) Epileptic (ictal); (18) Flash induced; (19) Gaze-evoked (deviational, gaze-paretic, neurasthenic, seducible, setting-in); (20) Horizontal; (21) Induced (provoked); (22) Intermittent Vertical; (23) Jerk; (24) Latent/Manifest Latent (monocular fixation, unimacular); (25) Lateral Medullary; (26) Lid; (27) Miner's (occupational); (28) Muscle-Paretic (myasthenic); (29) Optokinetic (induced, optomotor, panoramic, railway, sigma); (30) Optokinetic After-Induced (post-optokinetic, reverse post-optokinetic); (31) Pendular (talantropia); (32) Periodic/Aperiodic Alternating; (33) Physiologic (end-point, fatigue); (34) Pursuit After-induced; (35) Pursuit Defect; (36) Pseudo spontaneous; (37) Rebound; (38) Reflex (Baer's); (39) See-Saw; (40) Somatosensory; (41) Spontaneous; (42) Stepping Around; (43) Torsional; (44) Uniocular; (45) Upbeat; (46) Vertical; (47) Vestibular (ageotropic, geotro-pic, Bechterew's, caloric, compensatory, electrical/faradic/gal vanic, labyrinthine, pneumatic/compression, positional/alcohol, pseudo caloric.5     

It is unrealistic given this extensive laundry list -- which includes medical condition that a police officer can make the important distinction that he is indeed observing horizontal gaze nystagmus. Even if he could, the next issue is causation. Officers jump to an incorrect premise that if they do isolate horizontal gaze nystagmus this must be indicative of ethanol intoxication. There are actually 38 different causes of horizontal gaze nystagmus unrelated to alcohol as judicially recognized in Schultz v. State:     

(1) problems with the inner ear labyrinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arteriosclerosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Korchaff's syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension; (15) motion sickness; (16) sunstroke; (17) eyestrain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anti-convulsants; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, PCBs, dry-cleaning fumes, carbon monoxide; (35) extreme chilling; (36) lesions; (37) continuous movement of the visual field past the eyes; and (38) antihistamine use.6     

Another real problem with the horizontal gaze nystagmus test is the timing of its presence and an actual alcohol concentration. The HGN, as administered by the National Highway Transportation Safety Administration's (NHTSA) protocol for the Standardized Field Sobriety Tests (SFST) has been cited as the only reliable index of blood alcohol when examined for its ability to distinguish BACs under and over .04% within the .00-.08% range.7 So it is a fallacy to use this test to determine that someone may be over .08 BAC. What is also alarming is the fact that nystagmus can remain for some time once the BAC has reached .000. In a dose/response study of 89 subjects,8 62% of the dosed subjects exhibited nystagmus in one or both eyes at BAC levels of .00% when tested immediately after all alcohol was cleared from their blood and 56% of those subjects still exhibited nystagmus one hour later.9 In the same study, it was determined from 66 healthy, well-rested subjects10 who did not consume any alcohol and completed 5.5 to 8.0 hours of sleep after being awake for 9 to 14.5 hours (average 11.2) that they had distinct nystagmus in one or both eyes.11 Afterwards these same subjects were re-examined with an average awake time of 24.5 hours and distinct end position nystagmus was observed in one or both eyes in 55% of the group.12     

What is particularly troublesome is the stamp of imprimatur by the American Optometric Association13 -- touted by prosecutors in laying the foundation for the test's admissibility.14 Its important to distinguish that no such resolution of acceptance for the HGN exists by the American Academy of Ophthalmology. It s unsettling how eager the American Optometrist Association has been to embrace the possibility of providing expert testimony as a puppet of the government without any legitimate scientific inquiry of its own. The seminal scientific research article on HGN states it best:     

In an article designed to inform optometrists how to provide expert testimony on the HGNT (HGN), the only evidence of a correlation between BAC and nystagmus given is a reference to the NHTSA's work. Specifically the article stated 'through a series of studies, the National Highway Traffic and Safety Administration (NHTSA) has been able to establish a high correlation between alcohol concentrations in the body and performance on a series of field sobriety tests.' It is interesting, and perhaps revealing, that no other evidence is referenced to support this correlation.15     

One only needs to look at the criticism of NHTSA's foundational research16 -- which led to the development of the HGN test- to understand that this is yet another example of agenda government science which misses the mark. It is interesting to note that researchers have determined that percentages generally cited by the courts in support of HGN exist only in NHTSA publications.17 Jurists and prosecutors in the United States have been quick to embrace the HGN test as hardcore science but this component has not been adopted by Great Britain.     

Standardized Field Sobriety Tests     
Outside of the HGN, DWI cases concentrate on psychomotor skills measured by standardized field sobriety tests; but just how good are these tests? This requires some basic understanding of testing fundamentals. The first incorrect presumption with this framework is that these tests measure impairment related to driving. They do not.18 The walk and turn and one leg stand are purported to have 'face validity'19 -- that is the tests relate to actual driving tasks. Face validity is the lowest form of validity a researcher can achieve and is generally not accepted by academia because 'face validity rests on the investigator's subjective evaluation of the appropriateness of the instrument for measuring the concept rather than whether the instrument measures what the researcher wishes to measure.'20     

For a test to be valid, there must be high reliability and validity both measured by a correlation coefficient ranging from 0 to 1.0 (highest end of the scale).21 Reliability relates to the consistency of scores based on re-testing. Validity relates to the ability of a test to predict particular benchmarks. Intelligence tests such as the Wechsler Intelligence Test have a reliability of .90. According to the 1977 SCRI study, which developed the 3-part standardized field sobriety tests, the validity correlation coefficient22 was .48, the walk and turn was .55.23 In layman's terms what this means is that using a one-leg stand to predict a .10 BAC is only 25% better than chance.24 The HGN interestingly enough had only a correlation coefficient of .67 equating to an approximate 33% better prediction than chance.     
25 Use of the walk and turn is only 27-28% better than chance.26 The overall error rate (wrong percentage of decisions to arrest) was 47%.27 In 1981, laboratory field sobriety tests (this time just the HGN, walk and turn, and one leg stand) were researched again and the error rate was found to be 32%.28 Validity correlation coefficients were not mentioned in this study. Reliability correlation coefficients were given for this study: HGN .66, walk and turn .72.29 For a test to be reliable the coefficient must be .85 or higher.30 When different officers performed the test on the same subject at the same BAC, the coefficients dropped down to .59 for the HGN and .34 for the walk and turn. A 66% error rate was indicated for the walk and turn and the one leg stand error rate equated to a 40%.31 Dr. Burns herself indicated that the '77 and '81 error rates were unacceptable.32 In response to a cross-examination question as to whether 32% was acceptable, she replied, 'It is getting there.'33 This is the meat and potatoes of what still exists today.     

Once one gets over the initial shock of how unacceptable these tests are according to government research, the next logical step is to look at the relevant scientific peer review community. Dr. Spurgeon Cole and Ronald Nowaczyk did just that in 1994 in a field sobriety study sponsored by Clemson University. According to this study, field sobriety tests that included the walk and turn and one leg stand test were compared to normal tasks such as reciting basic information and walking in normal manner for 21 sober individuals all with a BAC of .000.     

Forty-six percent of the officers determined the subjects intoxicated by SFST(s) with only fifteen percent of said subjects determined to be intoxicated by normal tests.34 The promulgation of these tests, the HGN, walk and turn and one leg stand may be good enough for government work but are a far cry from reliable, scientific standards. Because of this, innocent people are being convicted every day on these premises, which are taken at face value despite their invalidity. When most states lowered legal limits to .08, the government found itself in a quandary that it has not been able to solve; hence, the continuation of the misleading 1981 percentages of accuracy: HGN 77%, walk and turn 68%, one leg stand 65%.35 The Colorado,36 Florida37 and San Diego38 studies attempted to quantify accuracy at .08 but none proved worthy of the mission. Such roadblocks as documented by Steve Rubenzer, Ph.D, included but were not limited to the following critiques:     

1. The field studies validated the arrest decisions of the officers in the studies, not the SFSTs.     
2. The police officers and the degree of supervision in the field studies were not typical of DWI stops.     
3. The studies were insufficiently documented for scientific papers as cited in U.S. v. Horn, 185 F. Supp.2d 530, 558 (D. Md. 2002).     
4. The authors did not report the accuracy of arrest decisions for stops that were observed versus those that were not, or for SFSTs performed under adverse climate conditions versus those that were not.39     

The new purported levels of accuracy in the recent validation studies regarding the same field tests at lower limits are proof of the tests' inherent low reliability correlation coefficient. How these statistically unreliable and invalid tests are somehow more purportedly valid at lower limits is yet proof positive how radical the DWI religion has become to lawmakers and jurists alike in blind disregard of the science.     

Leading Jurisdictions     
Despite ignorant, widespread acceptance of the validity of the HGN, walk and turn and one-leg stand tests, there are some jurisdictions that have started down a very unpopular but judiciously righteous path in respect of scientific principles and constitutional liberty. In Homan v. State, the court determined that in order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures.40 Most unfortunately, and without any respect for scientific realities, this case was later abrogated by legislation. The court at least recognized that 'testing' requires standardization and not haphazard administration if scoring criteria is to be used. What is key in this case is the court's threshold requirements merely address admissibility at the probable cause level. The mistake in Homan is to give the standardized tests any scientific evidentiary value at all. It however, at least recognizes that adherence to protocol is necessary to admissibility as opposed to weight. In U.S. v. Horn, Judge Grimm wrote:     

There is no factual basis before me to support the NHTSA claims of accuracy for the WAT and OLS tests or to support the conclusions about the total number of standardized clues that should be looked for or that are missing a stated number means the subject failed the test. There is very little before me that suggests that the WAT and OLS tests are anything more than standardized procedures police officers use to enable them to observe a suspect's coordination, balance, concentration, speech, ability to follow instructions, mood and general physical condition -- all of which are visual cues that laypersons, using ordinary experience, associate with reaching opinions about whether someone has been drinking.41     

Some of the more notable premises the Horn case stands for are that: 1) The results of properly conducted tests may be considered for probable cause;42 2) The SFST(s) cannot be correlated with a specific BAC;43 3) The court where requested by counsel should take judicial notice of the fact that there are many causes of HGN outside of alcohol;44 4) value added descriptive language regarding the SFST(s) such as 'failed the test,' 'exhibited' a certain number of 'standardized clues' or any other bolstering attempts by the officer is not allowed.45 SFST(s) or any specialized information learned from law enforcement or traffic safety instruction should not be referred to as scientific, technical or specialized.46     

Judge Paul Grimm, much like Governor William Phipps of Salem, Massachusetts, who suspended the special court of Oyer and Terminer,47 which based convictions on specious 'specter' evidence, has echoed some reason and common sense that is necessary in a court of law in the wake of mass hysteria over DWI prosecutions. Special recognition goes to courts responsible for cases like State v. Doriguzzi,48 where HGN was ruled not admissible because the state had failed to show Frye acceptance and reliability and Young v. City of Brookhaven,49 where the HGN test was ruled as a scientific test but not one generally accepted by the scientific community. These courts provide hope in proving that science is the voice of reason and we have a long way to go in spreading such reason to all parts of the country because science has no jurisdictional bounds.     

Notes     
1. Unlike most jurists, Judge Coffey has a scientific background: a Bachelor of Science in Agriculture from Western Kentucky University.     
2. See Rosemary Ellen Guiley, The Encyclopedia of Witches and Witchcraft, 234-299 (1989).     
3. Indicating the chemical concentration of alcohol in the blood as being greater than .10%.     
4. See v. Tharp, M. Burns, and H. Moskowitz, Development and Field Test of Psychophysical Tests for DWI Arrest, DOT-HS-805-864, U.S. Department of Transportation, NHTSA, Washington (1981).     
5. Dr. L. F. Dell -- Osso, Nystagmus, Saccadic Intrusions/Oscillations and Oscillopsia, 3 Current Neuro-Ophthalmology 147 (1989).     
6. Schultz v. State, 664 A.2d 60, 77 (Md. App. 1995).     
7. See A.J. McKnight, et al., Sobriety Tests for Low Blood Alcohol Concentrations,     
Accid. Anal. Prev. 2002 May; 34(3): 305-11.     
8. See J.L. Booker, End-position nystagmus as an indicator of ethanol intoxication, 41 Science and Justice 113, 115 (2001). (79 men and 10 women between the ages of 22 and 67 who were well rested and in good health, alcohol levels determined by blood and urine assays conducted by gas chromatography and breath concentrations determined by CMI Intoxilyzer 5000 instruments with wet-bath reference units operated at 34_C).     
9. See Id. at 115.     
10. See Id. at 114-15. (The study consisted of 44 men and 22 women between the ages of 20 and 57 who denied use of alcohol or drugs within the preceding 24 hours).     
11. See Id. at 115.     
12. See Id. at 115.     
13. See Karl Citek, HGN and the role of the Optometrist, in Admissibility of Horizontal Gaze Nystagmus Evidence: Targeting Hardcore Impaired Drivers, 15 (Am. Prosecutors Research Inst. 2003). (The following resolution was adopted by the American Optometric Association House of Delegates, on June 1993:     

Whereas drivers under the influence of alcohol pose a significant threat to the public health, safety, and welfare; and     

Whereas optometric scientists and the National Highway and Traffic Safety Administration have shown the Horizontal Gaze Nystagmus (HGN) test to be a scientifically valid and reliable tool for trained police officers to use in field sobriety testing; now therefore be it     

Resolved that the American Optometric Association acknowledges the scientific validity and reliability of the HGN test as a field sobriety test when administered by properly trained and certified police officers; and be it further     

Resolved that the American Optometric Association urges doctors of optometry to become involved as professional consultants in the use of HGN field sobriety testing.)     

14. See Predicate Questions: Optometrist. . . . Appendix K (visited June 18, 2004)http://nhtsa.com/people/injury/enforce/nystagmus/app_k.html. (Direct Examination questions for the state's expert optometrist end with: 88. Are you familiar with the 1993 resolution 'Horizontal Gaze Nystagmus as a Field Sobriety Test' passed by the House of Delegates of the American Optometric Association? 89. Is this a copy of the resolution? 90. Please read it to the court).     
15. Charles R. Honts, Susan L. Amato-Henderson, Horizontal Gaze Nystagmus Test: The State of the Science in 1995, 71 N.D. L.Rev. 671 at 6 (1995). (citing David V. Tiffany, Optometric Expert Testimony: Foundation for the Horizontal Gaze Nystagmus Test, 57 J. of Amer. Optometric Ass'n 705 (1986)).     
16. See Id. at 15.     
17. See Joseph R. Meaney, Horizontal Gaze Nystagmus: A Closer Look, 36 Jurimetrics J. 383, 385 (1996).     
18. Jack Stuster and Marcelline Burns, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent, DOT-HS-808-839 6, (1998).     
19. See Id. at 27-28.     
20. Chava Frankfort-Nachmias & David Nachmias, Research Methods in the Social Sciences, 150 (6th ed. Worth Pub. 2000).     
21. See Trial Transcript at 14-16, later reported asState v. Meador, 674 So.2d 826 (Fla. Dist. Ct. App. 1996).     
22. See Id. at 21, (The formula is actually the square root of 1.48.).     
23. See Id. at 20.     
24. See Id. at 21.     
25. See Id. at 20, 22.     
26. See Id. at 22.     
27. See Id. at 29.     
28. See Id. at 37.     
29. See Id. at 42.     
30. See R. Rosenthal & R.L. Rosnow, Essentials of Behavioral Research: Methods and Data Analysis (2nd ed. McGraw-Hill 1991).     
31. See Meador, supra note 21, at 31.     
32. See Id. at 141.     
33. Id. at 141.     
34. See Spurgeon C. Cole & Ronald H. Nowaczyk, Field Sobriety Tests: Are They Designed for Failure?, Perceptual and Motor Skills, 79, 99-104, (1994).     
35. See Tharp, supra note 4.     
36. See Anderson, Ellen and Marcelline Burns, PH.D., A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery, November 1995.     
37. See Dioquino, Sgt. Teresa, ET AL., A Florida Validation Study of the Standardized Field Sobriety (SFST) Battery, (date of publication is unknown).     
38. See Burns, supra note 18.     
39. See Ste Rubenzer, DWI- Part 1 The Psychometrics and Science of Standardized Field Sobriety Tests, The Champion, May 2003, at 24-34.     
40. See Homan v. State, 89 Ohio St.3d 421 (2000).     
41. U.S. v. Horn, 185 F. Supp. 2d 530, 557 (D. Md. 2002).     
42. See Id. at 532-33.     
43. See Id. at 533.     
44. See Id. at 533.     
45. See Id. at 533.     
46. See Id. at 533-34.     
47. See Guiley, supra note 2 at 299.     
48. 334 N.J. Super. 530 (App. Div. 2000)     
49. 693 So.2d 1355 (Miss. 1997).     

Special thanks to: Dr. Ron Henson of Beron Consulting and Lab Works, Peoria, Il. Richard Essen of Essen, Essen, Susaneck, Canet, & Goodis P.A., Aventura Fl 33180 (and paralegal Jason Hedges), Dr. Joe Citron, Atlanta, Ga.n