Field tests results

[rbinmd]

maryland:
I was stopped for headlight out. I took the HGN, 1 leg stand, and walk and turn on a road while raining. Officer noted it was drizzling. I scored 4 clues on HGN, 3 on Walk and turn. One the one leg stand, I counted to 30 without so much as a twitch, but counted 1,2,3 and not 1001, 1002, 1003. They have no other evidence other than a "slight" odor of alcohol. No indications from driving, none from personal contact other than the slight odor, responded no when asked if I had anyhting to drink,I refused the chemical test.

How does the overall scenario look? How does the counting issue on the one leg stand affect the results? Is is a total fail? Do I get anything positive for counting to 30?

Thanks.

[CdwJava]

Originally Posted by rbinmd

I was stopped for headlight out. I took the HGN, 1 leg stand, and walk and turn on a road while raining. Officer noted it was drizzling. I scored 4 clues on HGN, 3 on Walk and turn. One the one leg stand, I counted to 30 without so much as a twitch, but counted 1,2,3 and not 1001, 1002, 1003. They have no other evidence other than a "slight" odor of alcohol. No indications from driving, none from personal contact other than the slight odor, responded no when asked if I had anyhting to drink,I refused the chemical test.

How does the overall scenario look? How does the counting issue on the one leg stand affect the results? Is is a total fail? Do I get anything positive for counting to 30?

Thanks.

You may have failed. By your statement of the missed clues (and 4 observed on the HGN is real bad ... if the officer was properly trained). It is certainly sufficient to justify the arrest. Whether it is enough to convict in court depends on your state law and local court policy.

Where I used to work in San Diego County, they would go to trial on the observations alone of a trained officer. Where I work now, they will not go without a chemical test. Needless to say, we have to compel blood a lot (i.e. we hold them down at the hospital while the nurse plays Dracula).

You need an attorney who specializes in DUI defense (and he wil be expensive) in order to stand a chance of beating the rap or getting a good plea deal.

- Carl

[Alchohol_Free]

Most states have automatic DMV license suspensions for refusing any kind of testing. Where I'm at, it's an automatic 1 year suspension for refusing a breathlyzer or other type of BAC test. a 3 year suspension if you have a prior DUI. This is called "implied consent" law.

Nothing pisses the courts off more than an implied consent refusal. So that's going to be working against you.

Counting to 30 won't mean anything. The field test is not analyzed in that kind of detail. Based on your field test results, the officer believed he had justification for arresting you. You'll be tried on a combination of your field test results and the Officers testimony.

Any odor of alchohol will likely result in an arrest. If there's not an arrest, I believe the police can still take you to the jail to do a breathlyzer.

The right way to do it is to refuse the Field test. But it's usually a mistake to refuse BAC tests.

[rbinmd]

as I do further research, the fact is the Field sobriety tests, as well as the entire arrest process, needs to follow a specific process and is heavily scrutinized. I fel better about my arrest because:

1) they have no evidence of any negligent driving, weaving, etc. I was pulled over for a headlight out.
2) they only have a "slight" odor of alcohol. No funmbling for license, slurring, etc.
3) They performed the all tests while raining. (officer noted as much in "statement of probable cause" document. The HGN is specifically designed to test the smoothness and jerking of the eye. Hard to measure accurately while raining. I had 4 clues.
4) The NTHSA field sobriety test guidelines state the WAT and One Leg Stand results can be compromised if not performed on a semi flat, well lit and DRY surface. Clearly not the case.
5) lastly, officer must make sure the person fully understands the tests before performing. I asked a question about the WAT and the reply I had gotten was "just do it as I explained". Officr noted this is report as well.

So, still nervous but without any breath test, I am feleing much better about the case.

[CdwJava]

[quote=rbinmd]

1) they have no evidence of any negligent driving, weaving, etc. I was pulled over for a headlight out.

Not necessary for a DUI arrest. The headlight out established reasonable cause for the detention.

2) they only have a "slight" odor of alcohol. No funmbling for license, slurring, etc.

Still not definitive. I have seen .30 drivers perform routine tasks with little or no obvious impairment.

3) They performed the all tests while raining. (officer noted as much in "statement of probable cause" document. The HGN is specifically designed to test the smoothness and jerking of the eye. Hard to measure accurately while raining. I had 4 clues.

Why is nystagmus hard to measure in the rain? The physical tests might be questionable, but the rain does not impair your eyes. I can measure it just fine in the rain ... and with 4 clues, I can only imagine that they might be early onset of nystagmus, failure to follow the stimulus, jerky tracking, and, maybe, a lack of convergence. None of which has anything to do with rain.

I suppose you can argue some other visual distraction, but that's iffy.

4) The NTHSA field sobriety test guidelines state the WAT and One Leg Stand results can be compromised if not performed on a semi flat, well lit and DRY surface. Clearly not the case.

Okay. That might make a good argument against that one test.

However, keep in mind that the FST's are designed to assist the officer in developing an opinion of your sobriety and ability to safely operate a motor vehicle. If they feel that you are sufficiently impaired, you can go to jail or be required to submit to a chemical test.

5) lastly, officer must make sure the person fully understands the tests before performing. I asked a question about the WAT and the reply I had gotten was "just do it as I explained". Officr noted this is report as well.

It's a divided attention test and one of the things is the subject's ability to comprehend the instructions. I have no way of knowing if the officer provided competent instructions or not. But, obviously he's going to claim that your inability to comprehend was based upon your impairment and not on his instruction.

So, still nervous but without any breath test, I am feleing much better about the case.

However, in some cases (MD may be one) your refusal may be used against you as consciousness and evidence of guilt. So this may not be such a wonderful thing ... it can work both ways.

Otherwise, if a refusal was a sure win, you woul dsee it happening everywhere. In my county it's why we like refusals ... they not only lose their license for refusing the test, we get their blood by forcing a blood draw AND their refusal can be used against them later. It's a sweet deal, really.

I would still recommend hiring an experienced DUI attorney if you plan to mount a serious defense. I am not an expert at DUI, and have yet to lose a DUI case ... and the only cases that have gone to trial where the defendant has prevailed are those with attorneys that specialize in DUI - and those have been because of glaring errors by the officer.

And if the officer is using the term "clue" in his report, I can almost guarantee that he is well-versed in DUI/Drug evaluations. It is not a commonly used term.

Hopefully it has been a sobering experience for you and that next time, you will re-consider driving after you have had a few drinks.

- Carl

[rbinmd]

Thanks, Carl. Obviously, you are very knowledgeable.

My point to the rain while the HGN is due to the visual distractions, but also the distraction of rain drops on the face while test being performed, The rain causes invluntary reaction in the eyes to protect themsleves...am I reachig here?

You are right on all of your points. It is the States intention to use the collected evidence of driving, interaction, FST and BAC. Combining all of thise gives them very little I hope.

[CdwJava]

Originally Posted by rbinmd

Thanks, Carl. Obviously, you are very knowledgeable.

My point to the rain while the HGN is due to the visual distractions, but also the distraction of rain drops on the face while test being performed, The rain causes invluntary reaction in the eyes to protect themsleves...am I reachig here?

You might be. Unless you had your head tilted up, I doubt that it would have a consistent effect. Plus, the flinching effect would have been on your eyelid and not so much on your pupil. I know that unless you have a driving rain, it is not likely to effect the reactions of the eyeball. Rain MIGHT be an argument for reasonable doubt, but it is probably a reach. A good DUI attorney can evaluate the case for your state and local court's opinion.

Every court sees certain aspects of the evidence differently. My guess, because they did not compel a blood test, is that your court will charge and convict on the officer's testimony and a refusal alone. All the more reason to get a good DUI defense attorney.

You are right on all of your points. It is the States intention to use the collected evidence of driving, interaction, FST and BAC. Combining all of thise gives them very little I hope.

Maybe. But, I have made cases solely on my observations and FSTs before. Though that was a result of my formal training and my experience ... and the fact that where I used to work my agency did not like to compel blood for a refusal. Where I work now, if we don't get a chemical test, the DA is not likely to file unless the guy was sloppy drunk ... so, we force blood.

- Carl

[Alchohol_Free]

CDWJava's given you some good information.

But based on my experience (2 DUI's) you passed or failed the test. The courts don't care about a detailed analysis of your field test performance. And you can fail by just failing one part of the test.

With regard to "procedures" and that kind of stuff. With DUI, procedures are irrelevant. Although there may State statues that require Law Enforcment to follow, with DUI they don't have to. Black and white interpretation of DUI law only applies to the citizen. You'll find this out when you try to give the same defense to an attorney. Critiquing the FST will do you no good whatsoever.

Get enrolled in a State certified treatment program ASAP whether you think you belong there or not. This is what I did, and it made a huge difference in the outcome of my case. Because I took these steps AND FOLLOWED THROUGH, I'm eligible to get my license back in 2 months (1yr suspension instead of 3) and be released from formal probation.

[fagettaboutit]

Originally Posted by Alchohol_Free

CDWJava's given you some good information.

But based on my experience (2 DUI's) you passed or failed the test. The courts don't care about a detailed analysis of your field test performance. And you can fail by just failing one part of the test.

With regard to "procedures" and that kind of stuff. With DUI, procedures are irrelevant. Although there may State statues that require Law Enforcment to follow, with DUI they don't have to. Black and white interpretation of DUI law only applies to the citizen. You'll find this out when you try to give the same defense to an attorney. Critiquing the FST will do you no good whatsoever.

Welcome to the DUI MADDness. How you perform on the monkey tests means nothing.

Get enrolled in a State certified treatment program ASAP whether you think you belong there or not. This is what I did, and it made a huge difference in the outcome of my case. Because I took these steps AND FOLLOWED THROUGH, I'm eligible to get my license back in 2 months (1yr suspension instead of 3) and be released from formal probation.

Well, you could enroll in a program designed for people with disease or you could fight the charge against you. If you were charged with armed robbery and didn't do it, would you hide out in a group of people with a disease that you didn't have?

There's one thing you need to remember, innocent until proven guilty. Hire an attorney that understand DUI laws. It's important you understand that you need a lawyer that SPECIALIZES in DUI laws.

[twinkle33]

i was just arrested last week for dui..my lawyer is seeking no probable cause to pull me over as I did not run a stop sign..i rolled on a yield sign...whats funny is I was only given one fst..and that was HGN, with my glasses on, which I look over because I am near sighted. I was seated in the car while it was performed and had to look up with my eyes because they will not let you move your head..I have no idea what their conclusions were.. they did not tell me..nor did they tell me what I blew in the car..I blew a .1 at the station..my lawyer finds it odd that they only gave me the HGN, and that they didnt pass the pen back once or twice, but about 15 times untill my eyes were watering, then they wrote I had red glassy eyes. He is confident that if it doesnt get theown out, that it will be reduced to reckless op. He has demanded footage from the cruisers camera to determine their cause for a pull over

[LawGirl10]

Originally Posted by twinkle33

i was just arrested last week for dui..my lawyer is seeking no probable cause to pull me over as I did not run a stop sign..i rolled on a yield sign...whats funny is I was only given one fst..and that was HGN, with my glasses on, which I look over because I am near sighted. I was seated in the car while it was performed and had to look up with my eyes because they will not let you move your head..I have no idea what their conclusions were.. they did not tell me..nor did they tell me what I blew in the car..I blew a .1 at the station..my lawyer finds it odd that they only gave me the HGN, and that they didnt pass the pen back once or twice, but about 15 times untill my eyes were watering, then they wrote I had red glassy eyes. He is confident that if it doesnt get theown out, that it will be reduced to reckless op. He has demanded footage from the cruisers camera to determine their cause for a pull over

Only giving one FST is going to be a problem for the officer. We were always trained to use at least three motor-skills tests and the HGN test if we wanted to use in in addition to the first three. You may have a good argument for no PC. It just depends on everything the officer observed before he stopped you and everything he observed after. Even without FST, you can get a conviction for DUI. It just depends.

[twinkle33]

the only thing they observed was red eyes( from smoke) and odor of alcohol, and the 2 people I were with were drinking so my lawyer says that he can argue that...and I was told I was very co operative and that they are used to falling down beligerent drunks...they said the parking lot was icy so they didnt give me any other tests...what about alphabet ot nose touch or whatever? and they put on my ticket that conditions were all clear..nothing about ice

[CdwJava]

Originally Posted by twinkle33

the only thing they observed was red eyes( from smoke) and odor of alcohol, and the 2 people I were with were drinking so my lawyer says that he can argue that...and I was told I was very co operative and that they are used to falling down beligerent drunks...they said the parking lot was icy so they didnt give me any other tests...what about alphabet ot nose touch or whatever? and they put on my ticket that conditions were all clear..nothing about ice

Having someone who might be drunk doing the finger-to-nose test on an icy parking lot is asking for trouble ... it requires a person to close their eyes and stand straight - not good if they might be inebriated and you have ice.

The alphabet test is not supported by any significant research data as evidence of impairment as it can also be a sign of illiteracy not necessarily impairment.

The HGN is a good one for a sitting subject. And based upon any observed driving, coordination on contact, odor of alcohol, and the results of the HGN would almost certainly be enough to allow for a lawful arrest and a chemical test.

- Carl

[twinkle33]

do they usually tell you how you score on HGN? and there want ice in the parking lot ..what if we get the video back and it shows me rolling on a yield sign? you dont have to come to a complete stop do you? and like I said they did the HGN at least 15 times...is that normal?

[CdwJava]

Originally Posted by twinkle33

do they usually tell you how you score on HGN? and there want ice in the parking lot ..what if we get the video back and it shows me rolling on a yield sign? you dont have to come to a complete stop do you? and like I said they did the HGN at least 15 times...is that normal?

We don't usually tell people how they do on any of the tests ... maybe later, but generally not at the scene.

You wrote that the officer believed the lot was icy. If he thought it was unsafe, then okay. There is no law that says he has to do all the tests, anyway.

As for the video, unless he had the camera rolling, it won't show anything. And cameras generally only run when the officer manually activated it, or, the overhead lights come on. So unless you blew the sign (or whatever the accusation might be) when he had his overhead lights on, the camera didn't record anything. Except for pursuits, video rarely - if ever - captures the initial violation.

And "15 times"? Well, in my evaluations I will run the pen side to side at least four times: Center to left, left to center, center to right, right to center. Then I will go center to left and left to center in varying degrees anywhere from two to four times - depending on what I see or think I see. I will then repeat it to the right. THEN, I will go up and down a few times. All told, it could be 15 times or so.

If your attorney thinks there is a chance to beat it, then maybe the report was not written too well, or your courts are pretty merciful. It's hard to say what might happen where you are.

- Carl