arrested for DUI and was not

[yardman]

my wife was puled over in nh.she was told she was going over yellow line.and asked to do a sobriety test. she could not stand on one leg and faild.they asked if she would do a blood test she said yes. off to the hospital they went. she was arrested. they searched her car three times. and her purse over and over and found nothing. spent the night in jail.and when we went to court they dropped it. because nothing was in her blood.we paid for a lawyer. tow charges she had to post bond.all for nothing. can we sue.

[Zigner]

Originally Posted by yardman

my wife was puled over in nh.she was told she was going over yellow line.and asked to do a sobriety test. she could not stand on one leg and faild.they asked if she would do a blood test she said yes. off to the hospital they went. she was arrested. they searched her car three times. and her purse over and over and found nothing. spent the night in jail.and when we went to court they dropped it. because nothing was in her blood.we paid for a lawyer. tow charges she had to post bond.all for nothing. can we sue.

1) US Law Only - when asking a question you must include the name of your state.

2) In the US, yes you can sue (after you file a claim and it is denied)

3) In the US, no you won't win...you have no case.

[RatPackLar]

Will you win, who knows, only a lawyer can really tell you, and even then, only he or she, can offer advice and possible outcomes.

Heck, the idiot Judge sued that drycleaner for what $50 million bucks, cause he claimed they lost his frikken pants. Anybody can sue anbody, but can they win?, not always.

How much do you think you should sue for?

Most lawyers work on a contingent fee basis, they get paid if you win, and only a percentage of the actual recovery. You still may have to pay all the court costs, etc, needed to get the suit started.

Are you willing to pay up front and do that?

If you expect a lawyer to take your case up front, and work for a judgment, then you better be ready to pay and risk as much as he is, for taking your case.

You are not going to win this one.

They had cause to stop her, so they did

She flunked the FST's

So they arrested her and went to take blood.

Let me ask you this

If she was clean, why not blow, take the BAC test, if she had, they might have just let her go.

The cops do not just do a blood draw, unless they suspect impairment, and the BAC results come back clean, or there is an issue of refusal of the roadside or station house chemical tests.

There is more to this story.

Hey she got it kicked, be happy about that. All the cops do is arrest, detain, and charge. That is it, that is what they do, it is all the can do.

Actual guilt and or innocence has to be delt with in the court system.

[Ajosin]

Originally Posted by yardman

my wife was puled over in nh.she was told she was going over yellow line.and asked to do a sobriety test. she could not stand on one leg and faild.they asked if she would do a blood test she said yes. off to the hospital they went. she was arrested. they searched her car three times. and her purse over and over and found nothing. spent the night in jail.and when we went to court they dropped it. because nothing was in her blood.we paid for a lawyer. tow charges she had to post bond.all for nothing. can we sue.

Sorry to see you have been affected by the ruthless DUI laws. I got my charges dropped after 10 moths of uncertanty and tremendous personall loss (my wife had a nervous breakdown), but did not sue since they can threaten you back with prosecution.

You should be happy that your wife had a complete clean blood test. If they had found any traces of drugs (ilegal, prescription, over the counter) and/or alcohol (anything above 0.05 BAC) she would have been charged (regardless of wether the blood findindings may or may not medically cause imparement).

Studies show that 46% of sober people will fail the FST. This may be higher in the field since people are nervous, and police have no motivation to be objective. In fact, they are motivated to make an arrest. For example, in CA, a police officer must have a low BAC average for his DUI arrests (~ 0.12) or face re-training.

Think about what you almost lost and turn that frowny-face upside down. Turn the experience into something positive. Spread the work to your loved ones and friends so they are protected; the only way to protect yourself from the vicious DUI laws/methodoly is to ensure that all chem. tests come back completely clean.

[41tellthetruth]

Josin- what kind of BS are you trying to sell "studies show 45% of sober people fail FST's" Did the study did it include Horiziontal Gaze Nystagmus?

[CdwJava]

Originally Posted by Ajosin

If they had found any traces of drugs (ilegal, prescription, over the counter) and/or alcohol (anything above 0.05 BAC) she would have been charged (regardless of wether the blood findindings may or may not medically cause imparement).

You do not know that. While she COULD have been charged (even UNDER .05), there is no guarantee that she WOULD have been charged.

Studies show that 46% of sober people will fail the FST.

Please cite the name of this study, or where it can be reviewed. Since I am an instructor in the SFSTs, I am eager to learn about any and all valid studies that might compel us to modify our practices.

This may be higher in the field since people are nervous, and police have no motivation to be objective. In fact, they are motivated to make an arrest. For example, in CA, a police officer must have a low BAC average for his DUI arrests (~ 0.12) or face re-training.

Not true at all! Since I AM an instructor, I can say with absolute certainty that this is complete hogwash!

They are trained to conduct the evaluation using all their senses (including what they see, hear, and even smell BEFORE the SFSTs), and to make an arrest ONLY upon the establishment of valid probable cause. This does not mean the officer is always correct, or that the case can be substantiated later on, but officers are NOT threatened with retraining for failing to obtain a "low BAC average" ... and just what is meant by that term anyway? The phrase makes no sense to me.


- Carl

[CavemanLawyer]

The 46% magic number comes from a 1991 study by Cole and Nowaczyk out of Clemson University. The title of the study was, "Field Sobriety Tests: Are they Designed for Failure?" so no bias there of course.

They videotaped completely sober people perform six sobriety tests. They had to do the walk and turn and one leg stand (no problem there) but the rest of the tests were things like Romberg, finger to nose, finger to finger counting dexterity test, ABC's ect... ALL of these alternative tests have been deemed unreliable and are not included in the SFSTs and are only used as a last resort when the subject is physically incapable of doing the standardized tests. I also believe that a study like this is fatally flawed because the officers know that it is a test of SFSTs. They are watching these videos assuming that some people are going to be the sober ones and some are going to be the intoxicated ones. They then view them relative to one another. The person who did flawlessly is the sober one, so the worst performer out of all of them must be intoxicated. Its just a flawed setup.

The SFSTs are only deemed scientifically reliable (by that I mean a specific number of clues elicited can be linked to a BAC of .08 or greater) if all three tests are performed (HGN, OLS, and W/T). For this reason alone, the abovementioned study is just useless since it doesn't use HGN and that is the first test that every officer performs.

Now NHTSA obviously is biased in favor of their own standards so you do have to take their studies with a grain of salt. Their studies have determined that if all tests are done than they are 91% - 94% reliable. Other studies done by independent sources have come in as low as 83% but what ALL of these studies have shown is that the ERRORS weigh in favor of NOT being intoxicated. In other words, the tests will yield valid results 83%-94% of the time, but the majority of the time that the tests yield incorrect results, it is a case of an intoxicated person (.08 or greater) being deemed sober.

I believe that the science shows SFSTs to be perfectly reliable. That 46% claim is quite frankly ridiculous, and I can tell you from experience that, at least in my State, you cannot raise that number in trial. The study is not supported in the scientific community and is not considered reliable and it further cannot be tied to the current SFSTs because HGN was not part of the test. The problem with SFSTs is not the scientific theory, its the application of it. Alot of officers are not performing the tests correctly and are also not interpreting the clues properly.

For what it's worth, when I was in the DA's office we would participate in a SFST "study" every year. We'd each be given a specific number of beers to drink and than take an intoxilyzer test so our BAC was known. Some of us had low BAC's less than .08 and others had right around .08, and some of us volunteered to be .2's. The rookie officers would then use us to train in performing SFSTs. Even with these inexperienced officers the results were always accurate. Of course we volunteered for the study for different reasons...

[CdwJava]

Okay, I think I have heard of something similar ... I may have it somewhere in my notes, but I am currently on the road in a hotel in CO so am without ready access.

There are a series of validation studies performed some years back that tend to support the NHTSA SFSTs ... though, as you mentioned, they stand up best only when the full battery is performed. Taken separately, the reliability drops, but can still be quite good.

In an interesting side note, we have found that the defense bar out here has started to (hesitantly) feel out the argument that the SFSTs were developed to be accurate for a BAC of .10 and are therefore unreliable at .08 or even less ... so far, to my knowledge, it has not gained a foothold, but I have heard of the argument made in the Bay Area in a couple of cases so far. Not sure of the angle, yet, so I am trying to get info from cohorts out that way.

- Carl

[CavemanLawyer]

If any of the three SFST's aren't performed than reliability indeed drops some, but that's not really the key issue. Its not that the reliability is that much lower, its that the studies linking SFST's to a BAC of .08 or greater used all three tests, so if any one is omitted than those scientific studies cannot be cited in court. This means that an officer can only testify that he/she believed the subject to have lost the normal use of their mental or physical faculties. They cannot say that, based on the clues elicited, the subject had a BAC of .08 or greater. This seems like a fairly minor point, but it really takes the science out of the tests and relegates them to a common sense demonstration. The officer is basically limited to saying that the person looked intoxicated, and that they have experience evaluating when people look intoxicated or not. This is opposed to saying that you detected X number of clues therefore based on your training and the supporting science, the subject's BAC should be at least .08.

Once when I was a prosecutor I tried a DWI with a fool for a judge who always gave the defense attorney everything he/she asked for. The Defendant had back injuries so she only performed the HGN and did Romberg, finger dexterity, and recited her ABCs (all the way through then had to start on D and end on W.) Consequently, the judge correctly ruled that my officer couldn't testify that her BAC was .08 or greater, and could only say that she appeared to have lost her mental or physical faculties. That was fine, but he furthered ruled that myself and my officer were prohibited from using the word CLUE or the word INTOXICATION! I had to try a case of driving while intoxicated without being able to say the word intoxication.

As for the .08 versus .10 argument, after nearly every state lowered the legal limit (you can thank or curse MADD for that, depending on your stance,) most every scientific study was revisited to see if it essentially held true at the lower BAC of .08. Here are some of those updated studies.

[url]http://www.scri.org/index_files/StandardizedFieldSobrietyTests.htm[/url]

The defense argument goes something like this... There are 8 or so studies supported by NHTSA, correct officer? Did you realize that half of those studies looked for a BAC of .10 and not .08? And you leave it at that. You don't explain that the 4 tests for .10 have been more or less replaced by the ones testing for .08.

[CdwJava]

All those are studies I have in my texts at home ... at least they appear familiar. I have saved the link and will double check when I return this weekend.

We are taught to form an opinion on the impairment of the subject and NOT that they were or were not at or above .08 or any other number. While some of us are capable of doing this with a great deal of accuracy, the courts (at least in CA) have generally rendered this useless. While I can generally estimate a BAC based upon HGN alone, we are not even permitted to testify to that estimate at trial only that we observed the appropriate "clue".

In one county I used to work in, the DA and the courts would generally accept the testimony of a DRE for drug and alcohol impairment even without a chemical test. In the county I work in now, my DA could care less that I am a DRE and an expert in SFSTs and the evaluation of drug and alcohol impairment - he just wants to see sufficient foundation for probable cause to make the arrest and to get the mandated chemical test. No test, no prosecution ... and if alcohol and not .08 or higher, he won't file even if the fellow was passing out. Ah, life is great ... until we get a new DA.

Though, I am glad I have never had a bonehead judge like you came across!

- Carl