Posts Tagged ‘fourth amendment’

The Erosion of the Fourth Amendment

January 9th, 2014

Fourth AmendmentThe Fourth Amendment to the Constitution was a response to the British government’s abuse of writs of assistance.  These writs served as a general type of search power allowing British soldiers to go onto any property without cause.  Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused, thereby putting anyone who held such a writ above the law.  The Fourth Amendment engrained a unique principle of free people that a person’s home and property were beyond the scope of government officials unless a judicially approved warrant was issued.  Furthermore, no warrant could issue unless it was supported by probable cause.  The Fourth Amendment also encapsulated the idea of the “Castle Doctrine” (that was symbolically adopted in the Third Amendment), limiting the government’s ability to oppress its citizens property and land.  Sir Edward Coke, in Semayne’s case (1604), famously stated: “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.” Semayne’s Case acknowledged that the King did not have unbridled authority to intrude on his subjects’ dwellings but recognized that government agents were permitted to conduct searches and seizures under certain conditions when their purpose was lawful and a warrant had been obtained.

The United States Supreme Court enforced the principles of the Fourth Amendment via the “exclusionary rule.”  That rule made evidence obtained without a proper warrant inadmissible against the defendant at a criminal trial.  See Weeks v. United States (1914), Silverthorne Lumber Co v. United States (1920) and Nardone v. United States (1939).  It is from the Nardone decision that we get Justice Frankfurter’s famous labeling of the evidence as “fruit of the poisonous tree.”  In 1961 the Supreme Court extended the Fourth Amendment’s exclusionary rule to the States in Mapp v. Ohio (1961).  The Court reasoned that the rule’s function “is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” See Elkins.

The culture wars of the 1960′s led to a very severe and determined opposition to the Fourth Amendment who wanted to exclude and limit its application.  By the 1980s, critics saw the “War on Drugs”  as a means to an end for such a purpose. Starting in 1974 the Court ruled that grand juries could use illegally obtained evidence in grand jury proceedings. See United States v. Calandra (1974).  The Court reasoned that  ”the damage to that institution from the unprecedented extension of the exclusionary rule outweighs the benefit of any possible incremental deterrent effect.”  The 1980s saw a more bold approach to limiting the Fourth Amendment.  In United States v. Leon, the Court, applying the “good faith” rule, ruled that evidence seized by officers relying in good faith on a warrant was still admissible, even though the warrant was later found to be defective.  INix v. Williams the Court ruled that “fruit of the poisonous tree” evidence could still be introduced if a prosecutor could demonstrate that it would have been an “inevitable discovery” of legitimate investigation. In Segura v. United States, the Court ruled that evidence illegally found without a search warrant is admissible if the evidence is later found and legally seized based on information independent of the illegal search.  The 1990s and 2000s saw further erosion.  Arizona v. Evans (1995) and Herring v. United States (2009), ruled that the exclusionary rule does not apply to evidence found due to negligence regarding a government database, as long as the arresting police officer relied on that database in “good faith” and the negligence was not pervasive. In Davis v. United States (2011), the Court ruled that the exclusionary rule does not apply to a Fourth Amendment violation resulting from a reasonable reliance on binding appellate precedent.

Amie Stepanovich, director of the domestic surveillance project at the Electronic Privacy Information Center, offers three ways the government has attempted to erode Fourth Amendment protections.

  1. They’ve worked around it. In 1979, the Supreme Court denied constitutional protection to information voluntarily turned over to third parties. The government argues this permits warrantless collection of, among other things, information about Web visits, phone calls, location, and banking data.
  2. They’ve limited its scope. The Supreme Court has said that Fourth Amendment protections don’t apply in all places or at all times. For example, U.S. borders have become, practically speaking, Constitution-free zones. And the Department of Homeland Security has decided that the border consists of all land and sea boundaries, and extends out for 100 miles, placing the majority of the U.S. population within that region.
  3. They’ve limited its application. The government argues that nothing that occurs in public is actually a search. Public-space surveillance has been traditionally limited by available resources. But new technology like GPS tracking makes it easy to surreptitiously monitor a person’s location and activities in public.
 This author would argue that the only way to regain the ground we have lost is to strengthen the freedoms of the Fourth Amendment in the States.  It will take a 40-year effort to stem the tide.  It will take overcoming the fear of another terrorist attack, the fear of drugs and the fear of each other – but it can be done.  With the vast resources available to the government in this age of surveillance, the Fourth Amendment is more important than ever.

Illegal Police Stops (by DaytonDUI)

September 10th, 2012

Protecting You From Illegal Police Stops!

The Fourth Amendment of the United States Constitution protects you against unreasonable searches and seizures, which  includes being unlawfully or illegally pulled over or stopped by law enforcement.  An officer cannot simply pull you over based on a hunch or intuition.  When a police officer observes a traffic violation, he or she is justified in initiating a limited stop for the purpose of issuing a citation.  State v. Brickman(2001), 11th Dist. No. 2000-P-oo58, 2001 Ohio App. LEXIS 2575.  The legal standard applied to traffic stops is reasonable and articulable suspicion, which means that the officer has reason to believe that:

  1. a crime has been committed;
  2. a crime is being committed, or
  3. a crime is about to be committed, AND
  4. the person(s) being stopped is the person who did one of the above

Terry v. Ohio, 392 U.S. 21, 88 S.Ct. 1868 (1968).  It is your attorney’s job to demonstrate to a judge or jury that the officer lacked any credible evidence upon which to base reasonable and articulable suspicion.  In an OVI arrest scenario this often means fighting the reason(s) for the stop in the first place.  You are aided in this fight by having an attorney familiar with the officer’s training as set forth in the National Highway Transportation Safety Administration Student Manual, which is specific on what the officer is to look for and what conclusions he or she can draw from your actions. Our friends at the National Highway Traffic Safety Administration (NHTSA) have created a booklet for law enforcement called “Guide for Detecting Drunk Drivers at Night.”  This guide sets forth some of the most common and reliable indicators of drunk driving.  The list divides driving behaviors into four areas of clues that officers are trained to look for: Maintaining Lane Position, Speed and Braking, Vigilance, and Judgment.  The following is a list of symptoms in descending order of probability that the person observed is at or above a .10% BAC, thus statutorily driving while intoxicated.

  1. Turning with a wide radius
  2. Straddling center of lane marker
  3. “Appearing to be drunk”
  4. Almost striking object or vehicle
  5. Weaving
  6. Driving on other than designated highway
  7. Swerving
  8. Speed more than 10 mph below limit
  9. Stopping without cause in traffic lane
  10. Following too closely
  11. Drifting
  12. Tires on center or lane marker
  13. Braking erratically
  14. Driving into opposing or crossing traffic
  15. Signaling inconsistent with driving actions
  16. Slow response to traffic signals
  17. Stopping inappropriately (other than in lane)
  18. Turning abruptly or illegally
  19. Accelerating or decelerating rapidly
  20. Headlights off
What’s more, they have assigned a probability of intoxication to each of the indicators.  For example, a person who turns with a wide radius will have a blood-alcohol concentration of .10 or higher 65 out of 100 times.  A person who  appears drunk will have a blood-alcohol concentration of .10 or higher 60 times out of 100.  There is also a procedure for calculating multiple factors, “When two or more cues are seen, add 5% to the highest value among the cues observed.”  If we see turning with a wide radius and a suspect who appears drunk, we take the higher number and add 10 (65 + 5 = 70).   Thus, 30 people out of 100 who appear drunk and turn with a wide radius are not at or above the .10 BAC threshold.  Another example: drifting at night had a 45% correlation to a .10 BAC or more and braking erratically  has a correlation of  35% to a BAC of .10 or more.  Thus if we have a driver who was breaking erratically (35%) and drifting (45%) we add 5% to the highest clue to conclude that the driver would have a correlation of 50% to a BAC of .10 or more (only if he or she were driving at night, of course).  Let’s throw in another clue.  Say our suspect was also turning with a wide radius which is correlated to a 60% chance the driver is above a .10 BAC.  When three or more clues are present we add 10% to the highest clue total (in this case the 60% turning with a wide radius) for a total correlation of 70%.  The individual clues have numbers written beside them in the manual which gives the correlation for the clue alone and in combination.  For instance “Problem Maintaining Proper Lane Position” has a correlation of 50% when indicated alone and a 75% correlation when combined with any other clue.  You can visit the NHTSA website at http://www.nhtsa.gov/people/injury/alcohol/dwidwihtml/index.htm for more on the studies and the driving clues or read How to Beat a DUI by James Nesci, pp. 13-15.  “On cross examination, the NHTSA research figures can be used to show that…individuals exhibiting these symptoms are not under the influence.” Taylor & Oberman, Drunk Driving Defense, 6th Ed., p. 210-211.

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.

In almost every DUI I have encountered, the arresting officer has indicated that the alleged drunk driver had “bloodshot” or “glassy” eyes.  We challenge the officer by pointing out that he has never seen the defendant before and has no idea whether or not the defendant was engaging in activity that would logically cause bloodshot eyes (fatigue, being in a smoky environment, etc.).  This would usually end cross-examination on this issue and the officer would be able to establish an important factor in deciding whether or not to remove the driver for standardized field sobriety testing. (Phase II of the NHTSA DUI Investigation) It turns out that NHTSA has conducted a study which could really help out.  NHTSA has discounted these clues as prejudicial and irrelevant to determining intoxication. NHTSA released a report in 1997 that removes all of these clues as indicators of impairment. The materials provide an excellent resource for cross-examination of an arresting officer. Specifically, the report states:

“Finally, some cues were eliminated because they might be indicators more of social class than of alcohol impairment. For example, officers informed us that a flushed or red face might be an indication of a high BAC in some people. However, the cue also is characteristic of agricultural, oil field, and other outside work. Similarly, bloodshot eyes, while associated with alcohol consumption, also is a trait of many shift workers and people who must work more than one job, as well as those afflicted by allergies. A disheveled appearance similarly is open to subjective interpretation. We attempted to limit the recommendation to clear and objective post-stop behaviors.” Jack Stuster, U.S. Department of Transportation, NHTSA Final Report, The Detection of DWI at BACs Below 0.10, DOT HS-808-654 (Sept. 1997), p. E-10.

Your behavior with law enforcement can be vital to the officer’s decision making. Investigating officers are given a great deal of discretion in handling any situation. They may simply be seeking information to put in their report or they may be deciding whether or not to issue a citation. At the initial stage you must know your rights in order to protect yourself and, if necessary, aid your attorney in presenting your case to a jury. At this point it is vital to remember anything you say or do will be used against you. Arguing with the officer, complaining or bad-mouthing the officer does not help you and may give the officer an excuse to arrest you. Given the increased utilization of in-car cameras, the jury may also be allowed to observe your behavior and demeanor at the scene. Stay calm and in control of your emotions and treat the officer the way you would wish to be treated. Above all – KNOW YOUR RIGHTS!

What Level of Proof Does Law Enforcement Need to Pull You From Your Car For Standardized Field Tests?

One of the major decision points in the OVI arrest process is the officer’s decision to remove a suspect from his or her car and conductstandardized field sobriety testing. The officer is trained to arrive at this “decision point” by conducting an interview and using specific “pre-exit interview techniques” which include asking for two things simultaneously; asking interrupting or distracting questions; and asking unusual questions. (NHTSA Student Manual VI-4).  Additional techniques which an officer may employ include and Alphabet test (begin with E and end with P); a Countdown test (count out loud backward starting with 68 and ending with 53); and the Finger Count test (touch the tip of the thumb in turn to the tip of each finger while simultaneously counting).  Absent evidence of intoxication adduced at this point in the investigation, the officer lacks reasonable and articulable suspicion to allow him to request you to step from the car. (NHTSA Student Manual, VI-4, VI-5, VI-6).

In State v. Evans (11th Dist 1998), 127 Ohio App.3d 56, the Court cites factors to determine if an officer has reasonable articulable suspicion of driving under the influence: (1) the time and day of the stop (Friday or Saturday night as opposed to, e.g., Tuesday morning); (2) the location of the stop (whether near establishments selling alcohol); (3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.); (4) whether there is a cognizable report that the driver may be intoxicated; (5) the condition of the suspect’s eyes (bloodshot, glassy, glazed, etc.); (6) impairments of the suspect’s ability to speak (slurred speech, overly deliberate speech, etc.); (7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect’s person or breath; (8) the intensity of that odor, as described by the officer (“very strong,” “strong,” “moderate,” “slight,” etc.); (9) the suspect’s demeanor (belligerent, uncooperative, etc.); (10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and (11) the suspect’s admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.

Standardized Field Sobriety Tests

A metal detector can detect guns.  Does that mean that every person who sets off the metal detector has a gun?  The standardized field sobriety tests can detect lack of coordination due to intoxication.  Does that mean that all lack of coordination is indicative of intoxication? The three tests of the SFST are:

  • Horizontal Gaze Nystagmus (HGN),
  • Walk-and-Turn (WAT),
  • and One-Leg Stand (OLS).

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 insubstantial 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.

The validity of SFST results is dependent upon practitioners following the established, standardized procedures for test administration and scoring. NHTSA’s SFST Student Manualstates that the procedures demonstrated in the training program describe how SFSTs should be administered under ideal conditions, but that ideal conditions do not always exist in the field. Variations from ideal conditions, and deviations from the standardized procedures, might affect the evidentiary weight that should be given to test results.  Perhaps the most important statement about standardization can be found at VIII-19 which states:

IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN:

  • THE TESTS ARE ADMINISTERED IN THE PRESCRIBED STANDARDIZED MANNER
  • THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT’S PERFORMANCE
  • THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE

IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED THE VALIDITY IS COMPROMISED.

I have not added capitalization or bold to emphasize the importance of this warning.  The manual itself uses these indicia of importance at VIII-19.  Use this portion of the manual in conjunction with the State’s burden of proof (The State must demonstrate substantial compliance with the NHTSA manual by clear and convincing evidence) and you have some compelling arguments to make to the trier of fact.

THE HORIZONTAL GAZE NYSTAGMUS TEST

Horizontal Gaze Nystagmus is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his or her eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.08 or greater. NHTSA research found that this test allows proper classification of approximately 88 percent of suspects (Stuster and Burns, 1998). HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.

The most important scientific study of the Horizontal Gaze Nystagmus test undertaken by someone not associated with the government is J. Booker, The Horizontal Gaze Nystagmus Test: Fraudulent Science in American Courts, 44 Science and Justice 3 at 133 (July 2004).  The biggest takeaway for DUI attorneys is that the study revealed that the HGN test was improperly administered in the field 95% of the time. (95%!) Booker goes on to argue that the test was rushed into the field without proper scientific scrutiny, applying five hallmarks of fraudulent science.  The use of the HGN by officers in the field meets all five aspects of the fraudulent science test.  The two most important concerns raised in the study are 1) the demonstrable inability of officers in the field to properly estimate the 45-degree angle of onset, despite this being a lynchpin of the test, and 2) the apparent dichotomy between the test being used to determine the presence of alcohol at blood alcohol levels above .10 and its acceptance by the court as evidence of impairment, something inconsistent with the training of the officers. Barone, Defending Drinking Drivers, 2nd ed., pp 5-314.

THE ONE-LEG STAND TEST

In the One-Leg Stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 83 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.08 of greater (Stuster and Burns, 1998).  As stated above, the validity One-Leg Stand results are dependent upon law enforcement officers following the established, standardized procedures for test administration and scoring.  The criteria to establish a proper One-Leg Stand test are set forth in the NHTSA manaual as follows:

  • Requirement of a reasonably dry, hard, level, and non-slippery surface.
  • Is the individual over 65 years of age? Did officer question whether individual was over 65 years of age?
  • Did officer ask the individual whether he or she has any back, leg or middle ear problems?
  • Did the officer check to see whether the suspect was overweight by 50 or more pounds?
  • Did the officer check to see whether individual is wearing heels more than 2” high and if so, did he give them the opportunity to remove their shoes?
  • “Please stand with your feet together and your arms down at the sides, like this.” (Demonstrate)
  • “Do not start to perform the test until I tell you to do so.”
  • “Do you understand the instructions so far? (Make sure suspect indicates understanding).”
  • “When I tell you to start, raise one leg, either leg, with the foot approximately 6 inches off the ground, keeping your raised foot parallel to the ground.” (Demonstrate one-leg stance.)
  • “You must keep both legs straight, arms at your side.”
  • “While holding that position, count out loud in the following manner: one thousand and one, one thousand and two, one thousand and three, until told to stop.”
  • Demonstrate a count as follows: one thousand and one, one thousand and two, one thousand and three, etc.
  • “Officer should not look at his foot when conducting the demonstration” – OFFICER SAFETY
  • “Keep you arms at your sides at all times and keep watching the raised foot.”
  • “Do you understand?” (Make sure the suspect indicates understanding.)
  • “Go ahead and perform the test.”
  • “Officer should always time the 30 seconds. Test should be discontinued after 30 seconds.”
  • Observe the suspect from a safe distance.
  • “If the suspect puts the foot down, give instructions to pick the foot up again and continue counting from the point at which the foot touched the ground.”
  • “If the suspect counts very slowly, terminate the test after 30 seconds.”
  • “Observe the suspect from a safe distance and remain as motionless as possible during the test so as not to interfere.”

Information obtained from www.nhtsa.gov and is considered public information provided at www.ohiopd.com

Recall the one-leg stand test’s four indicators of impairment:

  1. swaying while balancing,
  2. using arms to balance,
  3. hopping to maintain balance, and
  4. putting the foot down.

The One-leg stand test requires your body to something unnatural; maintain a rigid body structure while precariously balanced.   The most natural reaction to being on one foot is to sway to find your center of gravity while lifting your arms like a tightrope walker.   Why do humans do this?  This technique provides several advantages. It distributes mass away from the pivot point and moves the center of mass out. This reduces angular velocity because her center of mass is now swinging through a longer arc. It takes longer to sweep out the same angle because the center of mass has a longer distance to go. The result is less tipping.  Millions of years of evolution have designed complex vestibular systems and wired our brains to act this way.  Unfortunately, swaying and holding your arms out will be counted as indicators of impairment according to the government.  As any skipping child will tell you, hopping is an instinctive way to quickly correct the body when attempting to locate the center of gravity. Again law enforcement uses natrual and  instinctive behavior to allege intoxication.  As documented in other articles on this blog, overweight people, older people, arthritic people and the simply uncoordinated may have trouble immediately finding and maintaining balance under ideal and fair conditions.  However law enforcement will unfairly count putting a foot down as an indicator of impairment.  It is up to your attorney to make a compelling defense against the use of this biased and unfair test to demonstrate that you were impaired.

Not only does the one-leg stand test require y0u to behave in an unnatural way, understanding its defects requires a jury to act in a unnatural way.  For example, if you see me trip over a crack in the sidewalk, you would consider me to be clumsy or uncoordinated.  If, however, you trip over a crack in the sidewalk you are much more likely to blame the crack.  The same is true for most people. This discrepancy is called the actor–observer bias.  In social psychology, thefundamental attribution error (also known as correspondence bias or attribution effect) describes the tendency to over-value dispositional or personality-based explanations for the observed behaviors of others while under-valuing situational explanations for those behaviors. The fundamental attribution error is most visible when people explain the behavior of others. It does not explain interpretations of one’s own behavior—where situational factors are often taken into consideration.  This bias can be devastating in a DUI trial when jurors are asked to consider your performance on field sobriety tests.  They will view the actions with a “bias” that they do not know they have.  Furthermore, they use this error to exclude factors of vital importance to both the scientific validity of the tests and your factual innocence.  For instance, jurors may under-value situational factors such as anxiety, lack of sleep, inherent lack of coordination, passing cars, environmental factors etc.  When we look at some of the underlying assumptions of the fundamental attribution error, we see some scary stuff that we, as advocates, must point out and overcome.

The Trooper gave me a “walk the line” test.  What was he looking for?

The Walk & Turn test is a divided attention test that is used as part of the three-test battery of field sobriety tests.  The officer will observe your performance on this test, looking for eight (8) clues of impairment.  You will be deemed to have failed the test if you present just two (2) of the eight (8) clues.  According to NHTSA, the Walk & Turn test is 68% accurate in determining alcohol intoxication above 0.10% BAC (when two or more clues are present).  See generally2006 NHTSA Student Manual, VII-4, VIII 10, et al.

The law enforcement officer will begin the test by asking you to stand with your right foot in front of your left, touching heel to toe.  He or she will then begin to give you a series of instructions and demonstrate how the test is to be conducted.  This part of the test is commonly referred to as the Instruction Stage. There are two clues that are scored during this preliminary phase:

Clue #1: Cannot Maintain Balance During Instructions

Clue #2: Starts the Test Too Early

The obvious tip here is to listen as best you can to the officer’s instructions.  Ask him or her to repeat any instruction that you did not understand as many times as is necessary to be fully informed of what is expected of you.  DO NOT BEGIN UNTIL TOLD TO DO SO.  This is fundamental and should be one of the easiest parts of the test to comply with.

NOTE: I have seen a number of cases where the subject is taken outside of the range of the cruiser camera to conduct the tests.  Take advantage of the recording by talking your way through the test. One client said, “Oh, I stepped off the line because of that passing truck.”  Another client demanded explanations when they came to the “turn” portion of the test.  Yet another client described the conditions (i.e. cracks in the road, poor shoes, cold, shivering). GIANT CAVEAT: Don’t say things that will hurt your case.  Unfortunately, more than one client has met the challenges of the Walk & Turn test by saying, “I can’t do that sober.”  Admissions against interest will be used against you.

NOTE: You are being judged on your ability to maintain position.  Raising your arms prior to the test will not and cannot be used as a clue. NHTSA specifically instructs that this clue must not be recorded “simply because the subject raises arms or wobbles slightly.” 1995 NHTSA Student Manual, VIII-20; 1995 NHTSA Instructor Manual, VIII-49; 2000 NHTSA Instructor Manual, VIII-42.

The remain clues of the Walk & Turn Test are:

  • The Subject Stops While Walking
  • The Subject Does Not Touch Heel-to-Toe
  • The Subject Steps Off the Line
  • The Subject Raises Arms for Balance
  • The Subject Turns Improperly
  • The Subject Takes the Incorrect Number of Steps

Clue #3: Stops While Walking.  In the early versions of the NHTSA Student Manual (1995 NHTSA Student Manual, VIII-20 later omitted) instructed the officer to only record this clue if the subject stopped to steady himself or herself.  The officer should also not record a clue if the subject is merely walking slowly or carefully.

Clue #4: Heel to Toe.  Would it surprise you to learn that the subject is not required to actually touch heel to toe?  According the NHTSA standards, the officer is only to count this clue if a gap of more than one-half inch is present.

Clue #5: Stepping Off the Line:  Originally, the officer was required to use an actual designated straight line. 1992 NHTSA Student Manual, VIII-19; 1995 NHTSA Instructor Manual, VIII-41; 2000 NHTSA Instructor Manual, VIII-36, but the “straight line must be clearly visible,” 1992 NHTSA Student Manual, VIII-18. Later versions of the NHTSA Student Manual removed the requirement of an actual designated line and allowed the officer to use an imaginary line.  Which raises the following question… “How thick was your imaginary line officer because ours was pretty wide.”

Clue #6: Using Arms for Balance.  If you put most human beings on a balance beam and ask them to walk across, the vast majority will instinctively raise their arms to maintain their balance.  During the walk and turn test we ask people to turn off this instinct and walk with their arms at their sides.  If a subject raises their arms more than six inches, it is used against them.  It is vital that the officer be heard giving this instruction as it is so fundamentally awkward.   If your client was never told to keep his arms at his or her side, then make sure that they are not “clued” on this portion of the test.

Clue #7: Improper Turn.  No other portion of the test is as unfair to a novice subject than the turn.  It must be done with precision.  More emphasis is placed on how it looks than how it is accomplished.  If done with deft balance but improper technique it will be counted against the subject.  Make sure the officer instructs the subject properly and make sure the officer demonstrates the turn properly.  My experience tells me that defense counsel can use the inherent unfairness of this test to great effect for the defendant.

Clue #8: Improper Number of Steps.  It may sound odd, but extreme stress caused by the intimidating presence of an intimidating law enforcement officer can cause people to do strange and amazing things.  Some people have a fight or flight response kick in and they run.  Other people shut down or pass out or cry.  Having viewed numerous videos of good people in this stressful environment, I have seen many people “forget” how to count to nine, mess up the alphabet and say horribly stupid things.  The overriding question to ask is whether nerves or intoxication contribute to your client’s missteps.  Jurors, in my experience, are willing to give your client great latitude if given a proper context.

Winning!

A jury instruction which is given at every Ohio DUI trial states,

  • UNDER THE INFLUENCE. “Under the influence means that the defendant consumed some (alcohol)(drug of abuse)(alcohol and a drug of abuse), whether mild or potent, in such a quantity, whether small or great, that it adversely affected and appreciably impaired the defendant’s actions, reactions, or mental processes under the circumstances then existing and deprived him of that clearness of intellect and control of himself which he would otherwise have possessed. The question is not how much (alcohol)(drug of abuse)(alcohol and a drug of abuse) would affect an ordinary person. The question is what effect did any (alcohol)(drug of abuse)(alcohol and a drug of abuse), consumed by the defendant, have on him at the time and place involved. If the consumption of (alcohol)(drug of abuse)(alcohol and a drug of abuse) so affected the nervous system, brain, or muscles of the defendant so as to impair, to an appreciable degree, his ability to operate the vehicle, then the defendant was under the influence.

As can be seen from the definition provided to the jury, some subjectivity does come into play. A skillful prosecutor will attempt to narrow this definition. It will be up to your attorney to demonstrate to the jury that your ability to drive was not impaired at the time of you OVI arrest. It is important to understand that you can be in violation of the law by simply being under the influence. The officer does not need to test your blood breath or urine if he/she believes that sufficient evidence exists for your arrest.  Charles M. Rowland II has worked hard to amass the skills, credentials and experience necessary to fight and win your Ohio OVI case.  He provides this information so that you will feel empowered and will be informed enough to make the best decision in hiring competent OVI counsel.  If you have been arrested in Ohio on charges of OVI, it is important that you consult an attorney right away.  Charles M. Rowland is available 24/7 at 937-776-2671 (DUI Hotline); during business hours at 937-218-1DUI (318-1384) or 1-888-ROWLAND (888-769-5263); text DaytonDUI (one word) to 50500 for immediate help on your cell phone; or you can follow DaytonDUI on Twitter or Dayton DUI/OVI defense on Facebook.  Charles M. Rowland II limits his practice to the representation of the accused drunk driver.  ”All I Do Is DUI Defense.”

DUI Law and the Fourth Amendment: Is Your Home Your Castle?

February 10th, 2012
The Ohio Seventh District Court of Appeals bui...

The doctrine that “a man’s home is his castle” is enshrined in the Bill of Rights.  The Fourth Amendment to the United State Constitution embodies the principle and states that a home should be free from search without a warrant.  The Fourth Amendment states, “The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause * * *.” Furthermore, in United States v. United States Dist. Court for the E. Dist. of Michigan (1972) 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752, 764, the court noted that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”  Under normal circumstances, a police officer is not permitted to enter one’s home to effectuate an arrest.  But does this principle apply in DUI prosecutions?

In State v. Lake, 2009-Ohio-3057, a police officer observed the Defendant commit several traffic violations, but failed to stop the Defendant before he could pull into his garage.  The Defendant argued in a motion to suppress to the trial court that he was illegally arrested when the officer barged into his garage.  His motion was overruled and he was eventually found guilty.  On appeal, the Seventh District Court of Appeals (Columbiana County) dismissed the Defendant’s argument. The Court held that the “hot pursuit” entry exception to the Fourth Amendment applied. They then stated that a defendant cannot defeat an arrest which has been set in motion in a public place by the escape to a private place, reiterating U.S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed. 2d 598 (1976), the United States Supreme Court case on point.  In United States v. Santana (1976), 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300, the court made it clear that a suspect may not avoid arrest simply by outrunning pursuing officers and finding refuge in her home. The court noted that hot pursuit “need not be an extended hue and cry ‘in and about [the] public streets.’ “ Id. at 43, 96 S.Ct. at 2410, 49 L.Ed.2d at 305, quoting the trial court. Moreover, the court went on to conclude that “a suspect may not defeat an arrest which has been set in motion in a public place * * * by the expedient of escaping to a private place.” Id. at 43, 96 S.Ct. at 2410, 49 L.Ed.2d at 306.  In 2002, the Ohio Supreme Court extended this principle to misdemeanors, see Middletown v. Flinchum 95 Ohio St.3d 43, 2002-Ohio-1625 wherein the court reasoned that since the officers observed at least two traffic violations, they had probable cause to stop the Defendant and pursue the Defendant into his “home” to effectuate an arrest.

So where does this leave us?  Does the proscriptions dating back to Roman law still apply: quid enim sanctius, quid omni religione munitius, quam domus unusquisque civium? (What more sacred, what more strongly guarded by every holy feeling, than a man’s own home? -Cicero-)  The answer lies in how effectively your attorney can argue your case before a trier-of-fact and the strength of the facts you are able to present.  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”

The Fourth Amendment, As American as…

May 24th, 2010

Click on the title to see a young man learn an important American value; due process of law.

Crisis in Fourth Amendment Jurisprudence

May 10th, 2010
I Am The Law!
Image by Kevin H. via Flickr

ACS is pleased to distribute an Issue Brief by Jay Stanley, Senior Policy Analyst at the American Civil Liberties Union’s Speech, Privacy and Technology Program, entitled “The Crisis in Fourth Amendment Jurisprudence.” In this Issue Brief, Mr. Stanley discusses the possible threat to Americans’ privacy as rapid advancements in technology are placing stress on slowly evolving legal doctrines. He argues that “the broken state of our jurisprudence is a serious problem, and poses a substantial risk that advancing technology will leave privacy law in a dysfunctional state and the Fourth Amendment an empty shell.” To emphasize the incongruity between fast moving technological change and the state of the law, Mr. Stanley points out that “[w]e are rapidly moving into a new world dominated by biometrics, location tracking, social networks, pervasive surveillance cameras, data mining, cloud computing, ambient intelligence and the ‘Internet of things,’ and a trend away from individual, case-by-case surveillance and toward wholesale, automated mass surveillance.” Yet, the Fourth Amendment, which is “the constitutional amendment that most directly protects our privacy,” “was created largely in the 1970s by men born between 1898 and 1924.”

Mr. Stanley argues that even though our “evolutionary system of jurisprudence sometimes seems simply overwhelmed” in the privacy context, there are several reasons to be hopeful that the law can begin to catch up to our changing world. Among these reasons, which he discusses in the Issue Brief, are dramatic changes regarding First Amendment rights that occurred in the first half of the 20th century, showing that substantial change in the law is possible; vigorous dissents in cases establishing our current privacy jurisprudence that highlight the complexity of the issues and may provide the reasoning necessary to support a change; the possibility of agreement among liberal and conservative jurists, who have both raised concerns about the law; and developments in the law by state courts that highlight the problems with the Supreme Court’s jurisprudence in this area. Mr. Stanley contends that “[u]nlike so many other rights, privacy in America today is actually in many respects far weaker than in the past.” Nevertheless, he argues that “privacy will never stop being a vital human right,” and change in the law is possible, but “[w]e must work to make this happen, lest America become a meaner, less forgiving, less just, and less free place.”

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