Field Tests (SFSTs)

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WCPO I-Team Questions the Standardized Field Sobriety Tests

February 20th, 2012

“I would never recommend anyone take the field sobriety test. It’s designed to fail.”  That is the conclusion of Dr. Spurgeon Cole, a retired Clemson University psychology professor whose area of expertise is the study of measurements.  He says all ages are scored the same, and “whether you’re a good athlete or you’re a klutz, you get the same [test].”  This conclusion is set forth in the I-team investigation into the Standardized Field Sobriety Tests by WCPO, ABC 9 in Cincinnati. Full Story HERE.  Attorneys who defend the accused drunk driver agree. “They are setting you up to fail,” MJ Donovan said. “These are not tests that are designed for you to succeed. They are tests that are designed for you to fail.”

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood, Beavercreek, Centerville and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI”

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DUI Law: What Should I Say?

January 30th, 2012

If you are stopped by law enforcement on suspicion of drunk driving, the officer will ask “Have you had anything to drink tonight?”  Some officers ask a variant of this question by making it an accusation, “I smell alcohol, how much have you had to drink?”  We are often asked how best to answer this question.

The short, best and most protective answer is to reply that you are uncomfortable answering any questions without an attorney present.  You have a Fifth Amendment Right to remain silent.  The police cannot punish you for exercising this right. USE IT!  So often a perfectly defensible case will be destroyed by a client’s ridiculous attempts to talk his or her way out of a DUI situation.  Police officers are very willing to listen to what you have to say.  A common tactic used by some experienced officers is the “it’s all over now, I’ve arrested you, let’s be honest” approach. They are seeking to solicit information to bolster the arrest and use against you in court.   It has also become a common practice for police agencies to conduct an “INTERVIEW” after advising a client of his or her Miranda Rights.  These so-called interviews is designed to elicit incriminating statements that destroy in advance any potentially mitigating conditions the defendant may wish to assert.  Questions like, “what have you had to drink?” “where were you driving to?” “when did you have your last drink?” “Do you suffer from any medical conditions?” etc.  The police officer simply goes down the list checking off the elements of the offense of drunk driving that the defendant willingly admits to.  Some clients even admit to being “buzzed” or feeling “inebriated” while they were driving even though credible evidence to the contrary is later discovered.  Admitting to drinking “one or two beers” is acceptable as that amount will not be sufficient to cause intoxication and it may explain why the officer can detect an odor of alcohol.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood, Beavercreek, Centerville and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI.”

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Admissibility of the Standardized Field Sobriety Tests

January 4th, 2012

Ohio Revised Code 4511.19(D)(4)(b) sets forth the standards for admissibility of the results of field sobriety tests in OVI (drunk driving) prosecutions.  See State v. Bozcar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 115 (2007).  In order for the tests to be admissible, the State must demonstrate:

  1. By clear and convincing evidence.
  2. The Officer administered the tests in substantial compliance.
  3. The testing standards for any reliable, credible, and generally accepted test.
  4. Including, but not limited to, the standards set by NHTSA.

The only guidance provided for determining the meaning of “substantial compliance” has come from State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372 (2003), wherein the court indicated that errors that are clearly “de minimus” or “minor procedural deviations” are not substantial.  Thus, the State must set forth the testing standards, offer some testimony that the testing standards have been accepted and that the officer has substantially complied.  If the State fails to introduce testimonial or documentary evidence of the standards (most likely via the NHTSA training manual), then they have not met this burden. See Village of Gates Mills v. Mace, 2005-Ohio-2191 (Ohio Ct. App. 8th Dist., Cuyahoga County), wherein the State did not meet this burden despite the Court having its own copy of the manual.

In my practice we have seen a trend to manipulating the “substantial compliance” standard into a de facto prejudice standard.  The burden is being subtly shifted to the defendant to demonstrate that he or she was somehow prejudiced by the officer’s failure to comply with the NHTSA standards.  For example; if the officer does not articulate that he advised the suspect not to raise his or her arms, the Court says that he substantially complied by merely mentioning that he was trained in NHTSA protocols.  If, however, the defense points out that the officer did not give the proper instruction and still scored the test in a way negative to the defendant, the court may consider excluding some portion or all of the test.  Case law can be helpful on this point.

In State v. Clay, 34 Ohio St. 2d 250, 298 N.E.2d 137 (1973) the court ruled, “[h]owever, if by cross examination or otherwise, the defense places such compliance at issue, it then is incumbent upon the State, in order to maintain its burden of proof, to offer the methods and regulations into evidence and prove compliance.”  Some courts may try to take Judicial Notice of the manual (See Evid. R 201) when no manual was introduced.  In State v. Wells 2005-Ohio-5008 (Ohio Ct. App. 2d Dist., Montgomery County) held that the court cannot assume judicial notice when the record does not demonstrate a request for judicial notice or a reference to the manual by the trial court.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Huber Heights, Beavercreek, Centerville and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook, www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

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The 47 Types & 38 Causes of Nystagmus; (It’s Not Just Caused by Alcohol)

December 28th, 2011
Field sobriety test

The horizontal gaze nystagmus test is an eye test approved by the National Highway Traffic Safety Administration(hereinafter NHTSA) as a tool to detect clues of impairment in drivers. The HGNtest is one of three psychomotor tests approved as part of the standardized field sobriety testing protocol employed by law enforcement officers throughout the United States and used here in Ohio. The HGN is a test of your eyes wherein the testing officer is looking for abnormal movements call saccades.  These movements make the eye appear to bounce or wobble.  The officer uses this movement to make a correlation to alcohol use.  This would valid only if we are able to demonstrate that nystagmus is specific to alcohol impairment.  However, we know that there are other causes of nystagmus.  It is up to your DUI lawyer to demonstrate another valid reason for what the officer is observing.  You can find information about the Horizontal Gaze Nystagmus test and its biases on this site.

Listed beloware some other scientifically recognized causes of nystagmus.

47 Types of Nystagmus

1. Acquired

2. Anticipatory(Induced)

3. Arthrokinetic(Induced,Somatosensory)

4. Associated(Induced,Stransky’s

5. AudioKinetic(Induced)

6. Bartel’s(Induced)

7. Brun’s

8. Centripetal

9. Cervical(NeckTorsion,Vestibular-0basilarArteryInsufficiency

10.Crcular/Elliptic/Oblique (Alternataing Windmill, Circumduction, Diagonal,

Elliptic, Gyratory, Oblique, Radiary)

11.Congenital (Fixation, Hereditary)

12.Convergence

13.Convergence Invocked

14.Disaccociated, Disjunctive

15.Downbeat

16.Drug Induced (Barbiturate, Bow Tie, Induced)

17.Epileptic (Ictal

18.Flash Induced

19.Gaze-Evoked (Deviational, Gaze-Paretic, Neurasthenic, Seducible, Setting-In)

20.Horizontal

21.Induced (Provoked)

22.Intermittent Vertical

23.Jerk

24.Latent/Manifest Latent (Monocular Fixation, Unimacular)

25.Lateral Medullary

26.Lid

27.Miner’s (Occupational)

28.Muscle Paretic (Myasthenic)

29.Optokinetic (Induced, Optomotor, Panoramic, Railway, Sigma)

30.Optokinetic After-Induced (Post-Optokinetic, Reverse Post-Optokinetic)

31.Pendular (Talantropia)

32.Periodic/Aperiodic Alternating

33.Physiologic (End-Point, Fatigue)

34.Pursuit After Induced

35.Pursuit Defect

36.Pseudo Spontaneous

37.Rebound

38.Reflex (Baer’s)

39.See-Saw

40.Somatosensory

41.Spontaneous

42.Stepping Around

43.Torsional

44.Uniocular

45.Upbeat

46.Vertical

47.Vestibular (Agotropic, Geotro-Pic, Bechterew’s, Caloric, Compensatory,Electrical/Faradic/Gal Vanic, Labyrinthine, Pneumatic/Compression, Positional/Alcohol, Pseudo Caloric)

Obtained from Dr. L. F. Dell’Osso, Nystagmus, Saccadic Intrusions/Oscillations and Oscillopsia, 3 Current Neuro-Opthamology 147 (1989).  There are also 38 verified causes for a horizontal gaze nystagmus other than alcohol impairment.

 

38 Causes of Horizontal Gaze Nystagmus

1. ProblemsWithTheInnerEarLabyrinth

2. Irrigating The Ears With Warm Or Cold Water Under Peculiar Weather

Conditions

3. Influenza

4. StreptococcusInfection

5. Vertigo

6. Measles

7. Syphilis

8. Arteriosclerosis

9. MuscularDystrophy

10.Multiple Sclerosis

11.Korchaff’s Syndrome

12.Brain Hemorrhage

13.Epilepsy

14.Hypertension

15.Motion Sickness

16.Sunstroke

17.Eyestrain

18.Eye Muscle Fatigue

19.Glaucoma

20.Changes In Atmospheric Pressure

21.Consumption Of Excessive Amounts Of Caffeine

22.Excessive Exposure To Nicotine

23.Aspirin

24.Circadian Rhythms

25.Acute Trauma To The Head

26.Chronic Trauma To The Head

27.Some Prescription Drugs, Tranquilizers, Pain Medications, Anti-Convulsants

28.Barbiturates

29.Disorders Of The Vestibular Apparatus And Brain Stem

30.Cerebellum Dysfunction

31.Heredity

32.Diet

33.Toxins

34.Exposure To Solvents, PCB’s, Dry-Cleaning Fumes, Carbon Monoxide

35.Extreme Chilling

36.Lesions

37.Continuous Movement Of The Visual Field Past The Eyes

38.Antihistamine Use

See Shultz v. State, 664 A.2d 60, 77 (Md. App. 1995) citing State v. Witte; State v. Clark, State v. Superior Court, and Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jur. Proof of Facts 3d 439 (1989); Louise J. Gordy & Roscoe N. Gray, 3A Attorney’s Textbook of Medicine § § 84.63 and 84.64 (1990).

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood, Beavercreek, Centerville and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI.”

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Ohio DUI Law: State v. Haneberg (HGN While Seated In Patrol Car)

December 6th, 2011

The 9th District Court of Appeals issued a great decision on the issue of substantial compliance.  Specifically, the issue involved giving the HGN test while the Defendant was seated in the car.  The Court found that this was not substantial compliance. (State v. Haneberg 5/29/2007, 2007-Ohio-2561, 9th District Court of Appeals).  If you need a DUI/OVI attorney anywhere in Dayton or the Miami Valley, contact Charles M. Rowland II at 937-318-1DUI (318-1384) or visit www.DaytonDUI.com .

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