By: DARREN KAVINOKY
Investigation of DUI Cases: What are the SFST’s? How do CA courts deal with FST’s that are not performed in accordance with NHTSA?
The National Highway Traffic and Safety Administration (NHTSA) has done extensive studies of field sobriety testing (FST’s) in order to determine the probability of intoxication.
Law enforcement agencies have utilized FST’s for many years to develop probable cause for arrest and as evidence to be used in the prosecution for drunk driving. However, not all FST’s have been scientifically determined to be accurate reflectors of alcohol intoxication. NHTSA has determined that three FST’s are accurate indicators of alcohol intoxication, when administered in a standardized manner. These tests are called Standardized Field Sobriety Tests (SFST’s):
1. Horizontal Gaze Nystagmus (HGN). HGN is an eye test that is 77% accurate in reflecting a blood alcohol count (BAC) above .10%. Nystagmus is an involuntary jerking of the eyes at a certain angle, off to the side. 2. Walk-and-Turn (WAT). WAT is a walking test that is 68% accurate in reflecting a BAC above .10%. 3. One-Leg Stand (OLS). OLS is a test done in a stationary position that is 65% accurate in reflecting a BAC above .10%.
The HGN in combination with the WAT reflects an 80% accuracy rate in determining a BAC above .10%.
The WAT and the OLS are “divided attention” tests. Divided attention tests require a subject to listen to and follow instructions while performing simple physical movements. Sober individuals are supposed to perform these tests with no problem. Impaired individuals, however, have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises.
As mentioned above, law enforcement agencies utilize FST’s in addition to SFST’s. The SFST’s have an advantage in that they have scientific backing. However, FST’s do not have such scientific data to support the conclusion that the drunk driving subject is intoxicated. Examples of FST’s include: the Rhomberg Balancing Test, Finger to Nose, Alphabet Test, Count Down, and Hand Pat, among many others.
Even though the FST’s do not have scientific backing reflecting reliability, most courts will still admit the tests into evidence. In California, courts allow all FST’s into evidence, but defense counsel can attack the weight of the evidence by challenging the reliability of the non-standardized tests. Other states only allow the actual SFST’s into evidence.
Saturday, July 7, 2007
Sentencing Alternatives: Electronic Monitoring DUI
By: DARREN KAVINOKY
Sentencing Alternatives: Electronic Monitoring
Electronic monitoring, also known as “house arrest” allows the convicted DUI offender to stay at home instead of being incarcerated in the county jail.
There are many types of electronic monitoring devices. Some attach to the wrist, others to the ankle. Either the device will send a signal to a computer at the probation office or the manufacturer’s business. Another type of monitoring device involves equipment which is strapped to the DUI offender. Some programs require the DUI offender to respond to random phone calls to insure compliance with house arrest. Other programs involve the use of global positioning systems (GPS) which monitor the location of the defendant via satellite. The devices provide surveillance of the DUI offender’s presence within a certain vicinity of an assigned area, such as the home or workplace. Electronic monitoring may include the ability to work during the day, with the requirement that the DUI offender remain at home during the evening, which statistically reduces the likelihood of alcohol-impaired driving at night, which is when most DUI arrests occur.
Incarceration in the county jail is sometimes discretionary and sometimes a mandatory sentence for a DUI offense. The California Vehicle Code delineates the sentencing schemes for first-time and multiple DUI offenders. A first-time DUI offender is eligible to receive up to 6 months in the county jail, however no minimum jail time is required. On the other hand, multiple offenders, those who get another DUI within a ten year span from the prior DUI, are required to serve a mandatory period in the county jail. Studies have proven that jail is among the least effective means of punishment for reducing recidivism among DUI offenders. In addition, the cost of incarcerating the DUI offender in jail is astronomical and adds to the already overcrowded and overburdened jail system.
The cost of being on an electronic monitoring program varies, and is paid for by the DUI offender. There are many different programs and companies who are licensed to provide electronic monitoring. These companies strive to make it as easy and stress-free as possible.
Sentencing Alternatives: Electronic Monitoring
Electronic monitoring, also known as “house arrest” allows the convicted DUI offender to stay at home instead of being incarcerated in the county jail.
There are many types of electronic monitoring devices. Some attach to the wrist, others to the ankle. Either the device will send a signal to a computer at the probation office or the manufacturer’s business. Another type of monitoring device involves equipment which is strapped to the DUI offender. Some programs require the DUI offender to respond to random phone calls to insure compliance with house arrest. Other programs involve the use of global positioning systems (GPS) which monitor the location of the defendant via satellite. The devices provide surveillance of the DUI offender’s presence within a certain vicinity of an assigned area, such as the home or workplace. Electronic monitoring may include the ability to work during the day, with the requirement that the DUI offender remain at home during the evening, which statistically reduces the likelihood of alcohol-impaired driving at night, which is when most DUI arrests occur.
Incarceration in the county jail is sometimes discretionary and sometimes a mandatory sentence for a DUI offense. The California Vehicle Code delineates the sentencing schemes for first-time and multiple DUI offenders. A first-time DUI offender is eligible to receive up to 6 months in the county jail, however no minimum jail time is required. On the other hand, multiple offenders, those who get another DUI within a ten year span from the prior DUI, are required to serve a mandatory period in the county jail. Studies have proven that jail is among the least effective means of punishment for reducing recidivism among DUI offenders. In addition, the cost of incarcerating the DUI offender in jail is astronomical and adds to the already overcrowded and overburdened jail system.
The cost of being on an electronic monitoring program varies, and is paid for by the DUI offender. There are many different programs and companies who are licensed to provide electronic monitoring. These companies strive to make it as easy and stress-free as possible.
Sentencing Alternatives: What kind of sentencing alternatives are available in DUI cases?
By: DARREN KAVINOKY
Sentencing Alternatives: What kind of sentencing alternatives are available in DUI cases?
The penalties for conviction of a DUI are harsh and include large fines, jail time, and mandatory alcohol education classes.
Conviction for multiple DUIs only increases the amount of punishment. Because of the harsh nature of DUI sentencing laws, courts have developed alternative sentencing options. Sentencing alternatives increase the options available for punishment, allowing for greater plea bargaining choices between the prosecutor and the defense.
Sentencing alternatives have the unique quality of being rehabilitative in nature as opposed to the punitive sentences of large fines and incarceration. There are little, if any, avenues for rehabilitation in sitting at the county jail. In addition, DUI offenders who are incarcerated may lose their jobs, thus making their situation even worse. In addition, if the DUI offender is truly an alcoholic, it is far more beneficial to seek treatment, thus minimizing the likelihood of yet another DUI conviction. Some sentencing alternatives will allow custody credits against the time that would otherwise have been spent in jail and some allow good time/work time custody credits.
Custody and good time/work time credits are hour-for-hour exchanges of alternative sentencing against the hours that would have otherwise been spent incarcerated in the county jail.
DUI Sentencing Alternatives:
Electronic Monitoring: Also known as “house arrest.” Allows the convicted DUI offender to stay at home with their families instead of being incarcerated in county jail.
Community Service: Could include a number of different options, which offers benefit to the community instead of the large expense to taxpayers of incarcerating the DUI offender.
Cal Trans Freeway Cleanup: DUI offenders can work the number of hours that would have been spent in the county jail on a Cal Trans Crew.
Sober Living Environments: A group home, housed with “sober” guests who offer support and counseling sessions, instead of incarceration in county jail.
Drug and Alcohol Rehabilitation Programs: Private programs that offer rehabilitation for drug and/or alcohol addiction.
Alcoholic’s Anonymous Meetings: The DUI offender may attend AA meetings as a condition of probation
Ignition Interlock Devices: Machines which are attached to the DUI offender’s vehicle, requiring an alcohol-free “blow” into a mouth piece before the engine will start.
SCRAM: An alcohol monitoring device, called Secure Continuous Remote Alcohol Monitor, which measures alcohol by way of a device attached to the DUI offender’s ankle.
Work Furlough: This sentencing option allows the DUI offender to go to their job during the day, but is required to check into a dormitory-style housing facility during the evening.
Work Release: This option allows the DUI offender to sleep at home at night, but requires the mandatory attendance during the day at a location determined by the Probation Department.
City Jail AKA “private jail” or “weekend jail.” Many local police departments will “rent out” their jail cells, allowing the DUI offender to check themselves in at the police station, usually spending the night, and then released either the following day or at the end of the weekend.
Sentencing Alternatives: What kind of sentencing alternatives are available in DUI cases?
The penalties for conviction of a DUI are harsh and include large fines, jail time, and mandatory alcohol education classes.
Conviction for multiple DUIs only increases the amount of punishment. Because of the harsh nature of DUI sentencing laws, courts have developed alternative sentencing options. Sentencing alternatives increase the options available for punishment, allowing for greater plea bargaining choices between the prosecutor and the defense.
Sentencing alternatives have the unique quality of being rehabilitative in nature as opposed to the punitive sentences of large fines and incarceration. There are little, if any, avenues for rehabilitation in sitting at the county jail. In addition, DUI offenders who are incarcerated may lose their jobs, thus making their situation even worse. In addition, if the DUI offender is truly an alcoholic, it is far more beneficial to seek treatment, thus minimizing the likelihood of yet another DUI conviction. Some sentencing alternatives will allow custody credits against the time that would otherwise have been spent in jail and some allow good time/work time custody credits.
Custody and good time/work time credits are hour-for-hour exchanges of alternative sentencing against the hours that would have otherwise been spent incarcerated in the county jail.
DUI Sentencing Alternatives:
Electronic Monitoring: Also known as “house arrest.” Allows the convicted DUI offender to stay at home with their families instead of being incarcerated in county jail.
Community Service: Could include a number of different options, which offers benefit to the community instead of the large expense to taxpayers of incarcerating the DUI offender.
Cal Trans Freeway Cleanup: DUI offenders can work the number of hours that would have been spent in the county jail on a Cal Trans Crew.
Sober Living Environments: A group home, housed with “sober” guests who offer support and counseling sessions, instead of incarceration in county jail.
Drug and Alcohol Rehabilitation Programs: Private programs that offer rehabilitation for drug and/or alcohol addiction.
Alcoholic’s Anonymous Meetings: The DUI offender may attend AA meetings as a condition of probation
Ignition Interlock Devices: Machines which are attached to the DUI offender’s vehicle, requiring an alcohol-free “blow” into a mouth piece before the engine will start.
SCRAM: An alcohol monitoring device, called Secure Continuous Remote Alcohol Monitor, which measures alcohol by way of a device attached to the DUI offender’s ankle.
Work Furlough: This sentencing option allows the DUI offender to go to their job during the day, but is required to check into a dormitory-style housing facility during the evening.
Work Release: This option allows the DUI offender to sleep at home at night, but requires the mandatory attendance during the day at a location determined by the Probation Department.
City Jail AKA “private jail” or “weekend jail.” Many local police departments will “rent out” their jail cells, allowing the DUI offender to check themselves in at the police station, usually spending the night, and then released either the following day or at the end of the weekend.
Investigation of DUI Cases: Walk and Turn (WAT)
By: DARREN KAVINOKY
Investigation of DUI Cases: Walk and Turn (WAT)
The Walk and Turn (WAT) is a walking test.
If administered properly, the WAT is 68% accurate in determining blood alcohol content (BAC) above .10%. In order to be administered properly, the test must be conducted on a reasonably dry, hard, level, and non-slippery surface. There should be a designated straight line. However, courts have allowed the introduction of the results of this test into evidence where there has not been a designated line. In this case, defense counsel will attack the weight of the evidence. If the subject is wearing heels above 2 inches, they should be given the opportunity to remove their shoes.
Step One: Instructions and Initial Standing Position
In step one, the officer will direct the subject to put one foot in front of the other in a straight line, with the right foot directly in front of the left, with the heel of the right foot touching the toe of the left foot. The subject is directed to stand in this position until directed to begin the test. It is behavior inconsistent with this instruction that most often will result in a “clue” that is used to determine intoxication. For example, the subject will move out of position, or start test before instructed to do so.
Step Two: Instruction and Demonstration of Walk and Turn Test
The officer will demonstrate the test while giving verbal instructions on how to do test. The officer will tell the subject to take 9 heel-to-toe steps down a straight line. The officer will instruct the subject on how to correctly turn, after the initial 9 steps have been taken. A proper turn is taken with a series of small steps, which the officer demonstrates. The subject is then supposed to take another series of 9 heel-to-toe steps back to the starting position. The officer will instruct the subject to keep the arms at their side, watch their feet at all times, and count each step out loud. The subject is directed not to stop until the test is completed.
The officer must ask if the subject understands the test before the test is initiated.
Clues
If the officer observes two or more clues, then there is a 68% probability that the subject has a BAC above .10%. The clues that the officer is looking for are: 1. Cannot keep balance while listening to instructions. 2. Starts before the instructions are finished. 3. Stops while walking. 4. Does not touch heel-to-toe. 5. Steps off the line. 6. Uses arms to balance. 7. Improper turn. 8. Incorrect number of steps.
Caveat
Original research on the application of the WAT indicated that those individuals over 65 years of age and those persons with back, leg, or middle ear problems had difficulty performing the WAT. In this instance, defense counsel should argue that the weight of this test is in question and should be considered in determining whether the subject was actually intoxicated.
Investigation of DUI Cases: Walk and Turn (WAT)
The Walk and Turn (WAT) is a walking test.
If administered properly, the WAT is 68% accurate in determining blood alcohol content (BAC) above .10%. In order to be administered properly, the test must be conducted on a reasonably dry, hard, level, and non-slippery surface. There should be a designated straight line. However, courts have allowed the introduction of the results of this test into evidence where there has not been a designated line. In this case, defense counsel will attack the weight of the evidence. If the subject is wearing heels above 2 inches, they should be given the opportunity to remove their shoes.
Step One: Instructions and Initial Standing Position
In step one, the officer will direct the subject to put one foot in front of the other in a straight line, with the right foot directly in front of the left, with the heel of the right foot touching the toe of the left foot. The subject is directed to stand in this position until directed to begin the test. It is behavior inconsistent with this instruction that most often will result in a “clue” that is used to determine intoxication. For example, the subject will move out of position, or start test before instructed to do so.
Step Two: Instruction and Demonstration of Walk and Turn Test
The officer will demonstrate the test while giving verbal instructions on how to do test. The officer will tell the subject to take 9 heel-to-toe steps down a straight line. The officer will instruct the subject on how to correctly turn, after the initial 9 steps have been taken. A proper turn is taken with a series of small steps, which the officer demonstrates. The subject is then supposed to take another series of 9 heel-to-toe steps back to the starting position. The officer will instruct the subject to keep the arms at their side, watch their feet at all times, and count each step out loud. The subject is directed not to stop until the test is completed.
The officer must ask if the subject understands the test before the test is initiated.
Clues
If the officer observes two or more clues, then there is a 68% probability that the subject has a BAC above .10%. The clues that the officer is looking for are: 1. Cannot keep balance while listening to instructions. 2. Starts before the instructions are finished. 3. Stops while walking. 4. Does not touch heel-to-toe. 5. Steps off the line. 6. Uses arms to balance. 7. Improper turn. 8. Incorrect number of steps.
Caveat
Original research on the application of the WAT indicated that those individuals over 65 years of age and those persons with back, leg, or middle ear problems had difficulty performing the WAT. In this instance, defense counsel should argue that the weight of this test is in question and should be considered in determining whether the subject was actually intoxicated.
Investigation of DUI Cases: What driving patterns do police typically look for in DUI cases?
By: DARREN KAVINOKY
Investigation of DUI Cases: What driving patterns do police typically look for in DUI cases? What do each of these driving patterns signify? Why are they evidence of impairment?
The driving patterns that police typically look for have been outlined by the National Highway Traffic and Safety Administration (NHTSA).
NHTSA has delineated a number of “cues” that police officers can look for in detecting intoxicated drivers driving at night. The list presented below represents, in descending order, the visual cues giving rise to the probability that the person observed is driving while intoxicated. Often, police officers will observe several cues in conjunction, which increases the probability that the driver is intoxicated, that is, driving with a blood alcohol content (BAC), over the legal limit. Studies have indicated that cues by themselves or in conjunction with other cues, give rise to a statistical probability of intoxication.
However, it must be recognized that these cues are not definitive of intoxication. In fact, the following cues have between a 30-70% probability of not reflecting intoxication.
1. Turning with a Wide Radius: During the turn, the radius, defined as the distance between the turning vehicle and the center of the turn, is greater than normal. For example, in making the turn, the driver may go beyond the designated lane markers of the first lane they are supposed to be turning into. This cue indicates a 65% probability that the driver has a BAC at or above .10%. 2. Straddling Center or Lane Marker: Here, the vehicle is moving straight ahead with the center or lane marker between the right and left wheels. Essentially this means that the lane marker is between the right and left wheels. This cue indicates a 65% probability that the driver has a BAC at or above .10%. 3. Appearing to be Drunk: This factor is determined by the officer’s visual observations of the driver and most likely includes several different indicators, including: slouching in the seat, tightly gripping the steering wheel, driving with face close to windshield, and driver’s head sticking out of the driver’s window, in addition to other cues that may present themselves. This cue indicates a 60% probability that the driver has a BAC at or above .10%. 4. Inappropriate or Unusual Behavior: This cue indicates such inappropriate behavior as throwing objects, arguing, and other disorderly actions. This may also include drinking in the vehicle, or urinating on the side of the roadway. Varying Speed: The vehicle alternates between speeding up and slowing down. This cue indicates a 60% probability that the driver has a BAC at or above .10%. 5. Almost Striking Object or Vehicle: The vehicle is observed to almost strike a stationary object or another moving vehicle. For example, the driver may pass abnormally close to another object, which is visually observed by the officer, or the officer observes another vehicle having to maneuver to avoid a collision with the driver. This cue indicates a 60% probability that the driver has a BAC at or above .10%. 6. Weaving: Essentially weaving is demonstrated as driving in a zig-zag pattern, with the vehicle going from one side of the road to the other. This cue indicates a 60% probability that the driver has a BAC at or above .10%. 7. Weaving Across Lane Lines: Extreme cases of weaving when the vehicle wheels cross the lane lines before correction is made. This cue indicates a 60% probability that the driver has a BAC at or above .10%. 8. Driving on Other than Designated Roadway: Here, the vehicle is seen driving off the road entirely, for example in the shoulder or in the dirt, or through turn-only lanes. This cue indicates a 55% probability that the driver has a BAC at or above .10%. 9. Swerving: Swerving occurs in several different situations. For example, a swerve can occur when the car drifts off course and the driver swerves to put themselves back into the lane. This cue indicates a 55% probability that the driver has a BAC at or above .10%. 10. Slow speed (more than 10 mph below speed limit. This cue indicates a 50% probability that the driver has a BAC at or above .10%. 11. Stopping (without cause) in Traffic Lane: Here, the officer cannot observe any identifiable reason as to why the car is stopped in the traffic lane. This most often occurs at intersections because the intoxicated driver needs to make a decision as to which way to go and stops the car in order to do this. This cue indicates a 50% probability that the driver has a BAC at or above .10%. 12. Stopping Problems: Here, the vehicle stops either too far, too short, or stops in a jerky way. This cue indicates a 50% probability that the driver has a BAC at or above .10%. 13. Following Too Closely: Here, the vehicle is following another vehicle without allowing the legal minimum separation between the vehicles. This cue indicates a 50% probability that the driver has a BAC at or above .10%. 14. Drifting: A “drift” is defined as a straight line movement of the vehicle at a slight angle to the roadway. This cue indicates a 50% probability that the driver has a BAC at or above .10%. 15. Tires on Center or Lane Marker: This occurs where the vehicles tires are observed to be consistently on the center line or either tire is consistently on the lane marker. This cue indicates a 45% probability that the driver has a BAC at or above .10%. 16. Braking Erratically: Here, the driver will either “ride the breaks” or else brake unevenly or in a jerky manner. This cue indicates a 45% probability that the driver has a BAC at or above .10%. 17. Driving Into Opposing or Crossing Traffic: This cue occurs in several situations: driving in the opposite lane, backing into traffic, driving the wrong way on a one-way street, or failing to yield the right of way. This cue indicates a 45% probability that the driver has a BAC at or above .10%. 18. Improper or Unsafe Lane Change: Here the driver is observed to take risks or endanger others. The driver will frequently or abruptly change lanes without regard to other motorists. This cue indicates a 45% probability that the driver has a BAC at or above .10%. 19. Illegal or Improper Turn: This cue could mean several things: the turn is too fast, jerky, sharp, etc. It could also mean such maneuvers as turning sharply from the wrong lane, making a u-turn illegally, or turning from outside a designated turn lane. This cue indicates a 45% probability that the driver has a BAC at or above .10%. 20. Signaling Inconsistent with Driving Actions: This cue occurs in several situations: failing to signal a turn or lane change, signaling opposite to the turn or lane change executed, signaling constantly with no accompanying driving maneuver. This cue indicates a 40% probability that the driver has a BAC at or above .10%. 21. Varying Speed: The vehicle alternates between speeding up and slowing down. This cue indicates a 30% probability that the driver has a BAC at or above .10%. 22. Accelerating or Decelerating Rapidly: This cue is observed as any acceleration or deceleration that is significantly more rapid than what is required by traffic laws. This cue indicates a 30% probability that the driver has a BAC at or above .10%. 23. Driving Without Headlights at Night: The vehicle is observed to be driven with both headlights off, when the use of headlights would otherwise be required. This cue indicates a 30% probability that the driver has a BAC at or above .10%. 24. Stopping Inappropriately in Response to Officer: This cue is indicated by any number of factors including stopping at an inappropriate location or under inappropriate conditions, other than in a traffic lane. This cue indicates a 30% probability that the driver has a BAC at or above .10%.
Investigation of DUI Cases: What driving patterns do police typically look for in DUI cases? What do each of these driving patterns signify? Why are they evidence of impairment?
The driving patterns that police typically look for have been outlined by the National Highway Traffic and Safety Administration (NHTSA).
NHTSA has delineated a number of “cues” that police officers can look for in detecting intoxicated drivers driving at night. The list presented below represents, in descending order, the visual cues giving rise to the probability that the person observed is driving while intoxicated. Often, police officers will observe several cues in conjunction, which increases the probability that the driver is intoxicated, that is, driving with a blood alcohol content (BAC), over the legal limit. Studies have indicated that cues by themselves or in conjunction with other cues, give rise to a statistical probability of intoxication.
However, it must be recognized that these cues are not definitive of intoxication. In fact, the following cues have between a 30-70% probability of not reflecting intoxication.
1. Turning with a Wide Radius: During the turn, the radius, defined as the distance between the turning vehicle and the center of the turn, is greater than normal. For example, in making the turn, the driver may go beyond the designated lane markers of the first lane they are supposed to be turning into. This cue indicates a 65% probability that the driver has a BAC at or above .10%. 2. Straddling Center or Lane Marker: Here, the vehicle is moving straight ahead with the center or lane marker between the right and left wheels. Essentially this means that the lane marker is between the right and left wheels. This cue indicates a 65% probability that the driver has a BAC at or above .10%. 3. Appearing to be Drunk: This factor is determined by the officer’s visual observations of the driver and most likely includes several different indicators, including: slouching in the seat, tightly gripping the steering wheel, driving with face close to windshield, and driver’s head sticking out of the driver’s window, in addition to other cues that may present themselves. This cue indicates a 60% probability that the driver has a BAC at or above .10%. 4. Inappropriate or Unusual Behavior: This cue indicates such inappropriate behavior as throwing objects, arguing, and other disorderly actions. This may also include drinking in the vehicle, or urinating on the side of the roadway. Varying Speed: The vehicle alternates between speeding up and slowing down. This cue indicates a 60% probability that the driver has a BAC at or above .10%. 5. Almost Striking Object or Vehicle: The vehicle is observed to almost strike a stationary object or another moving vehicle. For example, the driver may pass abnormally close to another object, which is visually observed by the officer, or the officer observes another vehicle having to maneuver to avoid a collision with the driver. This cue indicates a 60% probability that the driver has a BAC at or above .10%. 6. Weaving: Essentially weaving is demonstrated as driving in a zig-zag pattern, with the vehicle going from one side of the road to the other. This cue indicates a 60% probability that the driver has a BAC at or above .10%. 7. Weaving Across Lane Lines: Extreme cases of weaving when the vehicle wheels cross the lane lines before correction is made. This cue indicates a 60% probability that the driver has a BAC at or above .10%. 8. Driving on Other than Designated Roadway: Here, the vehicle is seen driving off the road entirely, for example in the shoulder or in the dirt, or through turn-only lanes. This cue indicates a 55% probability that the driver has a BAC at or above .10%. 9. Swerving: Swerving occurs in several different situations. For example, a swerve can occur when the car drifts off course and the driver swerves to put themselves back into the lane. This cue indicates a 55% probability that the driver has a BAC at or above .10%. 10. Slow speed (more than 10 mph below speed limit. This cue indicates a 50% probability that the driver has a BAC at or above .10%. 11. Stopping (without cause) in Traffic Lane: Here, the officer cannot observe any identifiable reason as to why the car is stopped in the traffic lane. This most often occurs at intersections because the intoxicated driver needs to make a decision as to which way to go and stops the car in order to do this. This cue indicates a 50% probability that the driver has a BAC at or above .10%. 12. Stopping Problems: Here, the vehicle stops either too far, too short, or stops in a jerky way. This cue indicates a 50% probability that the driver has a BAC at or above .10%. 13. Following Too Closely: Here, the vehicle is following another vehicle without allowing the legal minimum separation between the vehicles. This cue indicates a 50% probability that the driver has a BAC at or above .10%. 14. Drifting: A “drift” is defined as a straight line movement of the vehicle at a slight angle to the roadway. This cue indicates a 50% probability that the driver has a BAC at or above .10%. 15. Tires on Center or Lane Marker: This occurs where the vehicles tires are observed to be consistently on the center line or either tire is consistently on the lane marker. This cue indicates a 45% probability that the driver has a BAC at or above .10%. 16. Braking Erratically: Here, the driver will either “ride the breaks” or else brake unevenly or in a jerky manner. This cue indicates a 45% probability that the driver has a BAC at or above .10%. 17. Driving Into Opposing or Crossing Traffic: This cue occurs in several situations: driving in the opposite lane, backing into traffic, driving the wrong way on a one-way street, or failing to yield the right of way. This cue indicates a 45% probability that the driver has a BAC at or above .10%. 18. Improper or Unsafe Lane Change: Here the driver is observed to take risks or endanger others. The driver will frequently or abruptly change lanes without regard to other motorists. This cue indicates a 45% probability that the driver has a BAC at or above .10%. 19. Illegal or Improper Turn: This cue could mean several things: the turn is too fast, jerky, sharp, etc. It could also mean such maneuvers as turning sharply from the wrong lane, making a u-turn illegally, or turning from outside a designated turn lane. This cue indicates a 45% probability that the driver has a BAC at or above .10%. 20. Signaling Inconsistent with Driving Actions: This cue occurs in several situations: failing to signal a turn or lane change, signaling opposite to the turn or lane change executed, signaling constantly with no accompanying driving maneuver. This cue indicates a 40% probability that the driver has a BAC at or above .10%. 21. Varying Speed: The vehicle alternates between speeding up and slowing down. This cue indicates a 30% probability that the driver has a BAC at or above .10%. 22. Accelerating or Decelerating Rapidly: This cue is observed as any acceleration or deceleration that is significantly more rapid than what is required by traffic laws. This cue indicates a 30% probability that the driver has a BAC at or above .10%. 23. Driving Without Headlights at Night: The vehicle is observed to be driven with both headlights off, when the use of headlights would otherwise be required. This cue indicates a 30% probability that the driver has a BAC at or above .10%. 24. Stopping Inappropriately in Response to Officer: This cue is indicated by any number of factors including stopping at an inappropriate location or under inappropriate conditions, other than in a traffic lane. This cue indicates a 30% probability that the driver has a BAC at or above .10%.
Friday, July 6, 2007
Investigation of DUI Cases: Non-Standardized FST Verbal Alphabet Test
By: DARREN KAVINOKY
Investigation of DUI Cases: Non-Standardized FST Verbal Alphabet Test
There are 2 different types of alphabet tests which law enforcement may administer.
Neither test is a standardized field sobriety test (FST). Non-standardized FST’s do not have scientific data supporting their use for the purpose of indicating alcohol impairment.
Verbal Alphabet
Method
The subject is instructed to stand upright, with their hands at their sides. The subject is instructed to recite the alphabet aloud, either from the letter “A” or another arbitrary letter until reaching the letter “Z” or another arbitrary letter.
Clues
1) Subject starts too soon 2) Subject unable to follow instructions 3) Subject skipped some letters 4) Subject stopped and then restarted test, starting from beginning 5) Subject exhibited objective signs of intoxication
Scoring
Because this test is non-standardized, there is no scientifically-backed scoring system to accurately determine how many clues it takes to “fail” this test. Therefore, whether or not the subject passes or fails is subjective to the officer administering the test and not reliable.
Investigation of DUI Cases: Non-Standardized FST Verbal Alphabet Test
There are 2 different types of alphabet tests which law enforcement may administer.
Neither test is a standardized field sobriety test (FST). Non-standardized FST’s do not have scientific data supporting their use for the purpose of indicating alcohol impairment.
Verbal Alphabet
Method
The subject is instructed to stand upright, with their hands at their sides. The subject is instructed to recite the alphabet aloud, either from the letter “A” or another arbitrary letter until reaching the letter “Z” or another arbitrary letter.
Clues
1) Subject starts too soon 2) Subject unable to follow instructions 3) Subject skipped some letters 4) Subject stopped and then restarted test, starting from beginning 5) Subject exhibited objective signs of intoxication
Scoring
Because this test is non-standardized, there is no scientifically-backed scoring system to accurately determine how many clues it takes to “fail” this test. Therefore, whether or not the subject passes or fails is subjective to the officer administering the test and not reliable.
Investigation of DUI Cases: HGN
By: DARREN KAVINOKY
Investigation of DUI Cases: HGN
Horizontal Gaze Nystagmus
Horizontal Gaze Nystagmus (HGN) is an eye test.
Nystagmus is defined as an involuntary jerking of the eyes as the eyes move from the center position off to the side. Alcohol and some drugs cause HGN. If administered properly, HGN is 77% determinative of the subject having a blood alcohol count (BAC) over .10 percent.
In order to get an accurate result, HGN must be performed properly. In order to rule out the possibility that HGN has been caused by a medical condition, the eyes of the subject must be observed in a resting position. The officer should be facing the subject, with both officer and subject standing. The eyes must first be checked for equal pupil size, resting nystagmus, and equal tracking. Equal tracking refers to the ability of the eyes to follow an object together. If the pupils are noticeably unequal in size, or if the eyes do not track together, there is a chance that the nystagmus is the result of injury or a medical condition.
After it is determined that there is no injury or medical condition, the officer will begin the HGN test. The officer and the subject should both be standing and facing each other. If the subject is wearing eyeglasses, the subject should remove them. The officer should give the subject clear directions. These directions are: 1. “I am going to check your eyes” 2. “Keep your head still and follow this stimulus with your eyes only” 3. “Keep following the stimulus with your eyes until I tell you to stop”
The stimulus that the officer uses may be a pencil, pen, or slim flashlight, called a penlight. The stimulus must be held 12-15 inches from the subject’s nose and held slightly above eye level. There are 3 different “clues” that the officer is looking for.
Clue One: The Lack of Smooth Pursuit
The stimulus begins in the center position and then is moved to the subject’s left, as far as the subject’s eyes can go to the side, so that no white is showing in the corner of the eye. This position is held for 2 seconds and then the stimulus is brought to the subject’s right, as far as the subject’s eyes can go to the side. This position is also held for 2 seconds. This procedure is then repeated. The officer is looking to see whether the eyes move smoothly or if they jerk or bounce. An example of the eyes moving smoothly is like a marble moving across a pane of glass. An example of jerking or bouncing is a marble moving across a piece of sanding paper, in that it does not move in a straight line.
Clue Two: Distinct and Sustained Nystagmus at Maximum Deviation
The stimulus will begin in the center position and then move to the subject’s left as far as the subject’s eyes can go. This position is held for 4 seconds and then the stimulus is brought to the subject’s right as far as the subject’s eyes can go to that side and held for 4 seconds. This procedure is then repeated. The officer is looking to see if the eye has distinct and sustained jerking when the eye is at maximum deviation (off to the side).
Clue Three: Onset of Nystagmus Prior to 45 Degrees
The stimulus begins in the center position and then moved to the subject’s left, approximately the edge of the subject’s shoulders, and held for 4 seconds. This is then repeated, to the subject’s right. This procedure is then repeated. The officer is looking for a distinct jerking. If the officer sees jerking, the officer is supposed to hold the stimulus in place and confirm that the jerking is present. In order to determine that the stimulus is indeed brought to just before 45 degrees takes a great amount of skill and practice on the part of the law enforcement officer.
The officer will note all clues exhibited at each stage, which includes both the right and the left eye. If the officer determines that the subject exhibited 4 or more clues during the HGN test, then there is a 77% probability that the subject has a BAC above .10 percent.
Caution
If the officer holds the subject’s eyes at maximum deviation for more than 30 seconds, the subject’s eyes will become fatigued and will reflect nystagmus. This is referred to as Fatigue Nystagmus.
Investigation of DUI Cases: HGN
Horizontal Gaze Nystagmus
Horizontal Gaze Nystagmus (HGN) is an eye test.
Nystagmus is defined as an involuntary jerking of the eyes as the eyes move from the center position off to the side. Alcohol and some drugs cause HGN. If administered properly, HGN is 77% determinative of the subject having a blood alcohol count (BAC) over .10 percent.
In order to get an accurate result, HGN must be performed properly. In order to rule out the possibility that HGN has been caused by a medical condition, the eyes of the subject must be observed in a resting position. The officer should be facing the subject, with both officer and subject standing. The eyes must first be checked for equal pupil size, resting nystagmus, and equal tracking. Equal tracking refers to the ability of the eyes to follow an object together. If the pupils are noticeably unequal in size, or if the eyes do not track together, there is a chance that the nystagmus is the result of injury or a medical condition.
After it is determined that there is no injury or medical condition, the officer will begin the HGN test. The officer and the subject should both be standing and facing each other. If the subject is wearing eyeglasses, the subject should remove them. The officer should give the subject clear directions. These directions are: 1. “I am going to check your eyes” 2. “Keep your head still and follow this stimulus with your eyes only” 3. “Keep following the stimulus with your eyes until I tell you to stop”
The stimulus that the officer uses may be a pencil, pen, or slim flashlight, called a penlight. The stimulus must be held 12-15 inches from the subject’s nose and held slightly above eye level. There are 3 different “clues” that the officer is looking for.
Clue One: The Lack of Smooth Pursuit
The stimulus begins in the center position and then is moved to the subject’s left, as far as the subject’s eyes can go to the side, so that no white is showing in the corner of the eye. This position is held for 2 seconds and then the stimulus is brought to the subject’s right, as far as the subject’s eyes can go to the side. This position is also held for 2 seconds. This procedure is then repeated. The officer is looking to see whether the eyes move smoothly or if they jerk or bounce. An example of the eyes moving smoothly is like a marble moving across a pane of glass. An example of jerking or bouncing is a marble moving across a piece of sanding paper, in that it does not move in a straight line.
Clue Two: Distinct and Sustained Nystagmus at Maximum Deviation
The stimulus will begin in the center position and then move to the subject’s left as far as the subject’s eyes can go. This position is held for 4 seconds and then the stimulus is brought to the subject’s right as far as the subject’s eyes can go to that side and held for 4 seconds. This procedure is then repeated. The officer is looking to see if the eye has distinct and sustained jerking when the eye is at maximum deviation (off to the side).
Clue Three: Onset of Nystagmus Prior to 45 Degrees
The stimulus begins in the center position and then moved to the subject’s left, approximately the edge of the subject’s shoulders, and held for 4 seconds. This is then repeated, to the subject’s right. This procedure is then repeated. The officer is looking for a distinct jerking. If the officer sees jerking, the officer is supposed to hold the stimulus in place and confirm that the jerking is present. In order to determine that the stimulus is indeed brought to just before 45 degrees takes a great amount of skill and practice on the part of the law enforcement officer.
The officer will note all clues exhibited at each stage, which includes both the right and the left eye. If the officer determines that the subject exhibited 4 or more clues during the HGN test, then there is a 77% probability that the subject has a BAC above .10 percent.
Caution
If the officer holds the subject’s eyes at maximum deviation for more than 30 seconds, the subject’s eyes will become fatigued and will reflect nystagmus. This is referred to as Fatigue Nystagmus.
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