Posts Tagged ‘nhtsa student manual’

Standardized Field Sobriety Tests; the walk & turn test

April 5th, 2013

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 generally 2006 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.

Charles M. Rowland II has been defending the accused drunk driver for over fifteen years.  He holds numerous certifications in the field of DUI law and is Ohio’s only Forensic Sobriety Assessment certificate holder. He has observed Ohio Standardized Field Sobriety Testing first-hand at the Ohio Peace Officer Training Academy and has attended the same training as law enforcement officers in administering and grading the field tests.  He has been used by the Police Academy to instruct officers in courtroom motion practice and has been declared an expert in evidential breath testing by the United States government in court martial proceedings.  If you need an attorney who will fight for you, Charles Rowland says, “All I do is DUI defense.”

Ohio DUI Law: Reasonable and Articulable Suspicion

October 23rd, 2012

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 conduct standardized 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.  Citing five factors present in this case, the Court concluded the officer did have reasonable and articulable suspicion of driving under the influence.

An Ohio OVI lawyer should be prepared to challenge the officer’s determination of reasonable and articulable suspicion.  Make sure the Ohio OVI lawyer you choose has the most recent copy of the National Highway Transportation Safety Administration, Student Manual.  Charles M. Rowland has all such manuals and has received the same level of training in the standardized field sobriety tests as law enforcement.  He has furthered his education by being Ohio’s only Forensic Sobriety Assessment certified attorney which goes beyond the NHTSA manual to investigate the science (pseudo-science) of the tests.  If you need an attorney who has worked hard to achieve the highest level of training possible, contact Charles M. Rowland II today at 937-318-1DUI (318-1384), 1-888-ROWLAND or www.DaytonDUI.com.

Reasonable Articulable Suspicion & Illegal Police Stops

July 17th, 2011

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. (See Detecting Drunk Drivers at Night, previous post)

Dayton DUI lawyer Charles M. Rowland II has been trained in police procedures and tactics by being certified in the same NHTSA standardized field sobriety training that the police themselves undergo.  Charles M. Rowland has every NHTSA Student manual dating back to 1983, and every field sobriety validation study dating back to 1975.  His experience as a city prosecutor and his certification in Forensic Sobriety Assessment puts him in an excellent position to defend you from illegal police stops.  Further, no one is more committed to defending your Fourth Amendment Rights than Charles M. Rowland II.  Call him today at 937-318-1DUI (318-1384) or 1-888-ROWLAND (888-769-5263).

The picture used in this posting is the exclusive property of Charles M. Rowland II and is protected by copyright. No use of this picture is permitted without the express written consent of attorney Charles M. Rowland II.

Standardized Field Sobriety Tests: Validity

March 3rd, 2011

WHEN ARE THE STANDARDIZED FIELD TESTS VALID?

The standardized field sobriety tests, as set forth in the National Highway Traffic Safety Administration Student Manual (Feb. 2006 ed.), are described in Session VIII.  The NHTSA manual provides the standards upon which every law enforcement officer is trained.  One important piece of information about standardization is included in the manual which may help the DUI practitioner provide context to a jury.

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.

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Portable Breath Test Devices Can Produce Falsely High Tests

September 28th, 2010

According to the National Highway Transportation Safety Administration (Student Manual HS178 R2/06), a Portable Breath Test Device may produce an artificially high reading.  The government document is clear: “PBT instruments have accuracy limitations.” (VII-8).  The NHTSA manual goes on to set forth “two common factors that tend to produce high results on a PBT.  The PBT is often seen in Underage Consumption cases and in Boating Under the Influence (BUI) cases as they provide probable cause for an arrest.

Residual mouth alcohol. After a person takes a drink, some of the alcohol will remain in the mouth tissues.  If the person exhales soon after drinking, the breath sample will pick up some of this left-over mouth alcohol.  In this case, the breath sample will contain an additional amount of alcohol and the test result will be higher than the true BAC.

It takes approximately 15 minutes for the residual alcohol to evaporate from the mouth.

The only sure way to eliminate this factor is to make sure the suspect does not take any alcohol for at least 15 to 20 minutes before conducting a breath test.  Remember, too, that most mouthwashes, breath sprays, cough syrups, etc., contain alcohol and will produce residual mouth alcohol.  Therefore, it at least 15 to 20 minutes prior to testing.

Breath Contaminants. Some types of preliminary breath tests might react to certain substances other than alcohol.  For example, substances such as ether, chloroform, acetone, acetaldehyde and cigarette smoke conceivably could produce a positive reaction on certain devices.  If so, the test would be contaminated and its result would be higher than the true BAC. Normal characteristics of breath samples, such as halitosis, food odors, etc., do not affect accuracy.

If you are stopped on suspicion of drunk driving anywhere in the Miami Valley, Dayton DUI lawyer Charles M. Rowland II has the credentials to fight your case.  Contact Dayton OVI lawyer Charles Rowland by calling 937-318-1DUI (318-1384), 1-888-ROWLAND (888-769-5263), by texting DaytonDUI (one word) to 50500 or by “liking” Dayton DUI/OVI Defense on Facebook or @DaytonDUI on Twitter.  Charles Rowland says, “All I do is DUI.”

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