Law Topics

Investigation of DUI Cases: What are the SFST's?

2007-07-07T05:28:00.000-07:00

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.

Sentencing Alternatives: Electronic Monitoring DUI

2007-07-07T05:27:00.000-07:00

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: What kind of sentencing alternatives are available in DUI cases?

2007-07-07T05:26:00.002-07:00

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.

Investigation of DUI Cases: Walk and Turn (WAT)

2007-07-07T05:26:00.001-07:00

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: What driving patterns do police typically look for in DUI cases?

2007-07-07T05:25:00.001-07:00

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: Non-Standardized FST Verbal Alphabet Test

2007-07-06T12:34:00.000-07:00

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: HGN

2007-07-06T12:02:00.001-07:00

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: What Physical Symptoms?

2007-07-06T12:00:00.003-07:00

By: DARREN KAVINOKY

Investigation of DUI Cases: What Physical Symptoms? Why are they Significant?
Officers will observe the physical appearance of the alleged intoxicated driver very closely.
This is done to determine symptoms of intoxication in order to form the basis of arrest (probable cause). The symptoms will be included in the arrest report for the use by the prosecuting attorney in the prosecution of the driver for DUI.
The type of alcohol that is safe for human consumption is called ethanol. Ethanol is a central nervous system depressant. It is scientifically proven that human beings exhibit tell-tale signs of intoxication. The police officer will utilize the senses of sight, smell, and hearing in order to pick up on these signs.
Signs of Intoxication:
Eyes: Eyes may be bloodshot, watery, red, glassy, runny, eyelids droopy. Although alcohol does not affect pupil size, alcohol will cause the pupils to react sluggishly to light.
Speech: The speech may be slurred, slow, robotic, incoherent, stuttered, lethargic, mumbled, rambling, or low in volume. In a related-topic, the suspected drunk driver may admit having been drinking, or may use abusive language, have inconsistent responses to the officer’s questions, or make unusual statements. The suspected drunk driver may also be very talkative.
Breath: Breath is often described as having the odor of an alcoholic beverage or described as stale. The officer may also note the odor of a “cover-up.” A cover-up odor may be mints, mouthwash, gum, etc.
Face: The face will be described as pale, pallid, flushed, or slack.
Pulse: When under the influence of alcohol, most people will have elevated pulse rates.
Attitude: The suspected drunk driver’s attitude may be described as excited, polite, sullen, talkative, carefree, drowsy, profane, morose, cooperative, combative, discourteous, inattentive, sarcastic, flirtatious, or any combination of these.
Balance and Coordination: These factors may be described as falling, swaying, wobbling, leaning against stationary object for support, or impaired.
Walking: The way the suspected drunk driver walks may be described as staggering, falling, stumbling, swaying, or stomping.

Investigation of DUI Cases: OLS

2007-07-06T12:00:00.001-07:00

By: DARREN KAVINOKY

Investigation of DUI Cases: OLS
The One-Leg Stand (OLS) is a test that is performed in a stationary position.
If administered properly, the OLS has a 65% accuracy rate in determining a blood alcohol content (BAC) above .10%. Proper administration of the OLS requires a reasonably dry, hard, level and non-slippery surface. If the subject is wearing heels above 2 inches, they should be allowed the opportunity to take them off.
Stage 1: Instructions and Standing Position
The officer will demonstrate the standing position and give instruction at the same time. The officer will direct the subject to stand with their feet together, with arms down at the sides. The subject will be instructed not to perform the test until instructed to do so. The officer must make sure that the subject does understand the instructions.
Stage 2: Instructions for Balance and Counting
The officer will demonstrate and give instruction at the same time. The officer will instruct the subject to stand with their hands at their sides, raise either leg 6 inches above the ground, and count to 30. The correct counting method is: “one thousand and one, one thousand and two, one thousand and three, etc.” The subject is instructed to watch their raised foot at all times and count aloud. Before the subject begins the test, the officer must once again ask if the subject understands how to proceed.
Clues
Research has shown that 2 or more clues will yield the 65% accuracy level in determining intoxication above the legal limit. The officer is looking for any 2 of the following clues:
1. The subject sways while balancing. 2. The subject uses arms for balance. 3. The subject hops in order to maintain balance. 4. The subject puts foot down.
Caveat
Original research on the application of the OLS indicated that those individuals over 65 years of age and those persons with back, leg, or middle ear problems had difficulty performing the OLS. 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: Give Examples of Non-Standardized FST's

2007-07-06T11:59:00.001-07:00

By: DARREN KAVINOKY

Investigation of DUI Cases: Give Examples of Non-Standardized FST’s: How to be given, what clues, what they mean.
Law enforcement agencies employ a number of different field sobriety tests to determine enough probable cause to make an arrest for drunk driving. The National Highway Traffic and Safety Administration (NHTSA) has conducted studies which have determined that some tests are accurate indicators, to a degree, of a blood alcohol content (BAC) above .10%. However, law enforcement agencies often use non-scientific tests, or non-standardized field sobriety tests, to determine intoxication. These tests include:
? Alphabet ? Coin Test ? Hand Clap ? Finger to Nose ? Finger Count ? Rhomberg Balance
Because these tests lack standardization, they are designed for failure, not fairness. It is the officer’s own interpretation of the subject’s performance which determines failure. When police officers are questioned during cross-examination, they cannot cite any studies or scientific research which validates these testing methods or their scoring systems.
Some states do not allow non-NHTSA certified FST’s to be used as evidence of intoxication. However, California does allow these tests into evidence. A trained, experienced criminal defense attorney may attack the weight given the evidence, in light of the lack of scientific backing and reliability.

Investigation of DUI Cases: Non-Standardized FST Finger Count

2007-07-06T11:48:00.000-07:00

By: DARREN KAVINOKY

Investigation of DUI Cases: Non-Standardized FST Finger Count
The “Finger Count” is a non-standardized field sobriety test (FST), not supported by scientific data in determining a blood alcohol count (BAC) above the legal limit.
Non-standardized FST’s do not have a formal scoring method supported by scientific data, whereby a subject will be determined to pass or fail if they miss a certain number of cues.
Method
The Finger Count is a coordination test which requires the subject to hold either hand palm-side up. The subject is instructed to touch the thumb of one hand to the little finger of the same hand, then to each of the remaining fingers until the little finger is reached again. The subject is instructed to count out loud as follows: “4, 3, 2, 1…1, 2, 3, 4.” The subject is required to repeat this procedure for 3 complete sets.
Clues
1) Subject starts too soon 2) Subject does not follow instructions 3) Subject does not count as instructed 4) Subject does not touch the fingers as instructed 5) Subject stops test 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 Rhomberg Balancing Test

2007-07-06T11:46:00.000-07:00

By: DARREN KAVINOKY

Investigation of DUI Cases: Non-Standardized FST Rhomberg Balancing Test (aka modified position of attention)
The Rhomberg Balancing Test is a non-standardized field sobriety test (FST) that does not have scientific backing to support the allegation that the subject was intoxicated because they “failed” the test.
Method
The subject is instructed to stand upright, with their hands at their side. The subject is told to tilt their head back and keep their eyes closed. The officer instructs the subject to silently count to 30 and inform the officer when 30 seconds elapses.
Clues
1) Subject started test before instructed to do so 2) Subject’s body swayed, either forward and back, or side to side (measured in approximate inches) 3) Subject does not estimate 30 seconds correctly
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.
For most people, it is difficult not to “sway” when standing upright, eyes closed and head tilted back. However, police officers will count swaying as a failing factor.

Investigation of DUI Cases: Non-Standardized FST Hand Pat

2007-07-06T11:45:00.000-07:00

By: DARREN KAVINOKY

Investigation of DUI Cases: Non-Standardized FST Hand Pat

The Hand Pat is a non-standardized field sobriety test (FST).
Non-standardized FST’s do not have scientific data supporting their use for the purpose of indicating alcohol impairment.
Method
The subject is instructed to extend either hand in front of them, palm side up. The other hand is placed palm side down, on top of the first hand. The subject is instructed to alternate the hand’s positions, in a smooth motion, counting aloud, until instructed to stop.
Clues
1) Subject starts too soon 2) Subject unable to follow instructions 3) Subject does not count as instructed 4) Subject does not pat hand as instructed. Instead of a smooth motion, the officer will note that the hands “clapped” or “chopped” or moved too slowly. 5) Subject stopped before instructed
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 Finger to Nose

2007-07-06T11:38:00.000-07:00

By: DARREN KAVINOKY

Investigation of DUI Cases: Non-Standardized FST Finger to Nose
The Finger to Nose test is a non-standardized field sobriety test (FST) that does not have scientific backing to support the allegation that the subject was intoxicated, because they “failed” the test.
Finger to Nose
Method
The subject is instructed to stand upright, with their hands at their side. The subject is told to tilt their head back and then to touch the tip of their right index finger to the tip of their nose and then repeat this process with the left index finger.
Clues
1) Subject started test before instructed to do so 2) Subject’s body swayed, either forward and back, or side to side 3) Subject does not touch the “tip” of the finger directly to the “tip” of the nose 4) Subject does not alternate with the right and left index fingers as instructed
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.
Another problem with this test occurs when the officer fails to give specific instructions. Because this test is non-standardized there are no uniform instructions with which to compare the officer’s instructions.

Vehicle DUI Law

2007-07-06T11:36:00.000-07:00

By: DARREN KAVINOKY

“Vehicle”
In order to be arrested and convicted of a DUI, the individual must be driving a vehicle.
The California Vehicle Code defines vehicle as "a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks." Automobiles, trucks, motorcycles, mopeds, and snowmobiles fall within the classification of a vehicle. For the purposes of a DUI arrest and conviction, other type of “vehicles” include bicycles; boats, aquaplanes, and water skis; aircraft; and horses and other beasts of burden. However, wheelchairs and motorized tricycles and quadricycles, operated by persons who, because of physical disability, are otherwise unable to move about as pedestrians, may not be prosecuted for DUI.

DUI and Motorcycles

2007-07-06T11:33:00.000-07:00

By: DARREN KAVINOKY

DUI and Motorcycles
Alcohol intoxication is a leading factor in motorcycle accidents and fatalities.
Law enforcement officers have been trained to identify driving patterns that indicate a probability that a motorcyclist is driving while intoxicated. 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 motorcyclists. The list presented below represents, in descending order, the visual cues giving rise to the probability that the motorcyclist 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.
The following cues have shown a 50 percent or greater probability in predicting impaired motorcycle operation. However, it is also 50 percent as likely that these cues do not reflect intoxication.
Drifting During Turn or Curve Drifting during a turn or curve is the most common cause of single vehicle, motorcycle crashes. This occurs when the motorcycle and rider continues in a straight line instead of turning with the road, ultimately resulting in hitting a stationary object.
Another way this cue represents itself is where the motorcycle appears to drift to the outside of the lane, or into another lane, through the curve or while turning a corner.
However, drifting in a lane is not uncommon where a person is distracted or is unfamiliar with the landscape.
Trouble with Dismount Law enforcement officers look at the dismount as a helpful field sobriety test, as it is reflective of coordination and judgment. First, the motorcyclist must decide upon a safe place to stop the bike. Then the motorcyclist must turn off the engine, locate and deploy the kickstand, then balance on one foot while swinging the other foot over the seat to dismount. Officers look for any problems in the preceding sequence as evidence of alcohol impairment.
However, trouble with dismount is not necessarily an indication of intoxication. Where the officer pulls over the motorcyclist has a lot to do with the location of dismount. Plus, most people are rather nervous when pulled over, which is distracting. These factors have a lot to do with a dismount that takes place in front of an officer while he is waiting to write you a ticket.
Trouble with Balance at Stop There are two general methods of balancing at a complete stop. One, where the rider places one foot on the ground to keep the bike upright, while leaving the other foot on the peg nearest the gear shift lever. Two, where the rider places both feet on the ground for stability. Law enforcement officers look for a shifting from side to side, in a rocking motion, in an effort to maintain balance at a stop.
However, there may be several reasons a rider cannot maintain balance, for example, if the road is not even, the bike is unfamiliar, or the rider is of small stature
Turning Problems 1) Unsteady During Turn or Curve: Law enforcement officers look for a motorcycles wheels to wobble when making a turn.
However, when the motorcycle is undergoing a turn or curve, it must slow down, which makes it less stable in an upright position. At higher speeds the gyroscopic effects of a motorcycle’s wheels tend to keep the motorcycle “on track” so long as the speed is maintained. At slower speeds, the motorcycle is unsteady, so there is a higher probability of wobbling while turning.
2) Late Breaking During a Turn: Law enforcement officers look for the application of break lights during the turn as opposed to prior to the turn, as indicating impairment due to intoxication. The rationale here is that a motorcyclist normally breaks prior to entering a turn or curve, so the motorcycle can accelerate through the maneuver for maximum control.
However, there are many reasons a rider would break during a turn as opposed to prior. For example, the rider may just drive that way, or is unfamiliar with the streets and the street he needs to turn on comes up faster than expected, or any number of reasons, which are not alcohol-related.
3) Improper Lean During Turn: Law enforcement officers look for the rider to be in an upright position during a turn, instead of leaning into the curve.
However, NHTSA indicates that this cue is observable by a “trained” observer, meaning it is not apparent otherwise. Also, where the turn is made safely, there is no indication of impairment due to intoxication. 4) Erratic Movements During Turn: Law enforcement officers look for any sudden correction of a motorcycle during a turn or curve.
However, there are many other factors which would cause a sudden movement during a turn. For example, the condition of the road may necessitate such a maneuver.
Inattentive to Surroundings Law enforcement officers look for such things as: 1) Failing to notice the light has changed. However, people do this everyday. Getting lost in thought may cause you to not notice that the light has changed: This is not an indication of intoxication. 2) Failing to scan the area around the bike in traffic. However, this is not a requirement required by the DMV and is not necessary where the driver is experienced and the traffic is light. The motorcyclist decides based on road factors, traffic flow, and surroundings how vigilant to be; it is subjective and not an indication of intoxication. 3) Failing to respond to officer’s emergency lights or hand signals. However, this cue can be negated by many reasonable factors, like the motorcyclist concentrating on the road, waiting to pull over on a safer stretch of road, or simply not observing the hand signals.
Inappropriate or Unusual Behavior Officers are looking for any sorts of behavior which are “unusual” or “inappropriate.”
However, this is a matter of subjection and is not necessarily an indicator of intoxication, but matters of circumstance.
Weaving Weaving includes weaving within a lane and weaving across lane lines.
However, weaving may occur to avoid road hazards.
The following cues have been shown to have a 30-50% probability of indicating intoxication. However, at the same time, they are 50-70% times as likely of not being an indicator of intoxication.
Erratic Movements While Going Straight Law enforcement officers look for any sudden corrections while attempting to ride in a straight line.
However, the NHTSA studied reflected a 51-70% probability that there is no impairment reflected in this cue.
Operating without Lights at Night Because of the danger involved in motorcycles driving without lights at night, the NHTSA studies indicated that there is a good chance that the operator is intoxicated.
However, there is a higher likelihood that this cue is not due to intoxication, but rather just an oversight of the rider.
Recklessness Officers look for riding too fast as an indicator of impairment.
However, motorcyclists tend to ride faster than autos, so speeding is not necessarily an indicator of impairment.
Following too Closely Officers look for a rider following at an unsafe following distance.
However, the distance between the motorcycle and other cars is not totally within the motorcyclist’s control. Cars slowing would naturally decrease the following distance.
Running Stop Light or Sign Officers look for the motorcycle failing to stop at a light or sign.
However, cars and motorcycle riders run lights and signs all the time, for a variety of reasons which are not indicators of intoxication.
Evasion This cue occurs when an officer attempts to pull the motorcycle over and the motorcycle rider attempts to flee the officer instead.
This is a common occurrence which has nothing to do with impairment, 50-70% of the time.
Wrong Way This cue occurs when the motorcycle is riding into opposing traffic, such as going the wrong way on a one-way street or crossing a center divider line to ride into opposing traffic.
However, 50-70% of the time this cue is not an indicator of impairment. Going the wrong way on a one-way street occurs with drivers everyday and is usually a matter of mistake. Crossing the divider line also occurs as a sudden movement to avoid another car going into the lane which occurs frequently to motorcycles because other driver’s do not pay attention to the presence of motorcycles.

DUI Elements: Alcohol

2007-07-06T11:31:00.000-07:00

By: DARREN KAVINOKY

DUI Elements: Alcohol
To obtain a conviction for driving under the influence, the prosecution must prove that the defendant drove a vehicle while under the influence of any alcoholic beverage.
Specifically, the elements are:
Driving: The defendant had to be driving at the time alleged to have been intoxicated.
Vehicle: The defendant had to be driving a vehicle, as defined by the California Vehicle Code.
Under the Influence: The defendant had to be “under the influence” of alcohol at the time of driving.
Alcoholic Beverage: The defendant had to be intoxicated by a substance defined as an alcoholic beverage. Per Se Rule: Where the evidence establishes beyond a reasonable doubt that a chemical analysis of the defendant's blood, breath, or urine established that the defendant had a blood alcohol content (BAC) at or above .08% at the time the test was performed, the trier of fact may, but need not, infer that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense.