Tag: Police officer

Police Do Not Need To Know Law To Enforce It – Heien v. North Carolina

00DUI Case LawTags: , , , , , , , , , , , , , , , , ,

Heien v. North CarolinaNo. 13–604. Argued October 6, 2014—Decided December 15, 2014 ; another case giving police more power to stop and arrest and another body blow to the Fourth Amendment.

Heien v. North Carolina

In 2009, Nicholas Heien and a friend were traveling on a highway in North Carolina when they were stopped for having a broken tail light. Subsequently, a search of the car found a plastic bag containing cocaine. Where this case takes a turn is when we learn that the police had no legal right to stop the car because, under North Carolina law, having a single broken tail light is not an offense.  The police officer was ignorant of the law.

The defense argued that just as ordinary citizens cannot claim ignorance of the law as a defense, police can’t either, and because the traffic stop was illegal, the evidence from the search that followed should not have been permitted in evidence against him.

The United States Supreme Court disagreed. By an 8-1 vote, ruled that since the officer’s mistake was reasonable, it did not violate the constitution’s ban on unreasonable searches and seizures. The maxim “ignorance of the law is no excuse,” does not apply here, Chief Justice Roberts maintained, because Heien “is not appealing a brake light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law.”

Justice Sonia Sotomayor was the lone dissenter.  She focused her concern on giving police a further ability to abuse their power. Traffic stops can be “annoying, frightening, and perhaps humiliating,” she observed. And permitting stops based on a mistaken reading of the law has “human consequences for communities and their relationships with the police.” The perverse effect of permitting police to go ahead with a mistaken reading of the law, she wrote, is to prevent or delay clarification of the law so that doubt continues to exist in the minds of the public or police about what is and is not legal.

Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio. He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.

“All I do is DUI defense.”

For more info case law like Heien v. North Carolina, check these city-specific sites at the following links:

Fairborn, Dayton, Springfield, Kettering,Vandalia,Xenia,Miamisburg, Huber Heights,Springboro,Oakwood,Beavercreek, Centerville

 

 

 

Christmas Party DUI Arrest? We Can Help!

00Holiday MessagesTags: , , , , , , , , , , , , , , , ,

Christmas party DUI Arrest - Tips to Avoid a Bad ScenarioSUMMARY:  Nobody plans on a Christmas Party DUI Arrest, but police  are out in force during the Christmas Holiday Season.  If you plan to drink and drive, prepare yourself ahead of time in these three ways:  Protect Yourself, Educate Yourself and Empower Yourself with knowledge.  See details below.

‘Tis the season for Christmas parties and Christmas party DUI arrests. If you are arrested you may be thinking, “What do I do now?” Being arrested for DUI is a frightening and traumatic experience. Our clients often struggle to deal with the stigma and shame associated with a DUI arrest. Many strong people are brought to tears when telling a loved-one about their arrest. Complicating matters is a palpable sense that everything is spinning out of control. Charles Rowland and the staff at DaytonDUI have been helping people through this process for over seventeen years. We want to reassure you that your Christmas party DUI case can be successfully managed. Like any other crisis, it is imperative that you take steps to PROTECT YOURSELF, EDUCATE YOURSELF and EMPOWER YOURSELF. Below are some helpful steps that you can take to begin the process of putting a DUI arrest in perspective.

1. PROTECT YOURSELF

As soon as possible after your Christmas party DUI arrest, take time to write down every single detail of that you can remember. Sometimes critical pieces of a defense can be found in details that may be forgotten if not recorded immediately. Start with a time-line or chronology. What were you doing prior to drinking? When did you start drinking? How was your health in general on that day? Did you work out earlier in the day? Were you around any chemicals? When did you last sleep? What do you remember watching on television that day? Did you make any cell phone calls or have text chats? When did you last eat and what was it? What cologne or aftershave lotion did you use that day? What kind of shoes were your wearing? Other important areas of consideration include what medications or drugs you ingested prior to driving. Do you take prescription medication? Do you regularly smoke cigarettes or marijuana? Did you use breath spray or tic-tacs or tobacco? Who did you see that day? Could you have visited a store with a video surveillance camera? Do you know the bartender who served you? How was your car operating that night or day? Think of this first step as establishing what happened before you came in contact with law enforcement.

Next comes the “during arrest information.” Yes, it may be painful, but try to write down everything that you can remember when you were stopped by law enforcement. When did you first notice the officer following you? What was your reaction? Were you using a cell phone or texting (which may explain swerving), or were you oblivious to the officer until he turned his lights on. Did you have anything in your mouth? Often, the location of your stop can provide powerful assistance to your attorney. Was it a busy road? What were the conditions? Was the roadway wet, slick, slanted, pot-holed? Your memory may tempt you to focus on the administration of the standardized field sobriety tests, but many law enforcement decisions are made prior to asking you to step from the car. The officer writes these important details in his report. Make sure your attorney knows your version of events. Remembering what you and the officer said is vital to establishing your defense. Details of what happened at the station are also important. How long were you in the cruiser? How many officers were on the scene? Who, if anyone, searched your car? At the station, where were you placed prior to the test? What, if anything, was read to you by the officer? Try to be as precise as possible and write down exact quotes when you remember them. Another way to protect yourself is to take pictures of your car and of the location of the stop. The location may be vital in any number of ways in establishing the validity of the field tests and may possibly explain your driving habits on that roadway. If the officer alleges that your tail light was out, or that your license plate light was inoperable, pictures taken shortly after the incident may exonerate you.

Do not drive! If your license has been suspended you should protect yourself by arranging for transportation for at least two weeks. Taking a taxi, or the bus, or just huffing it is less cumbersome than an additional charge of driving under a DUI suspension which carries additional mandatory jail time in Ohio. You should also find out what ramifications will take place at your job. If you have a CDL, you cannot drive under the CDL until the charges are resolved. Active-duty military personnel also have obligations which may prove difficult without a license. Losing your right (it’s not a privilege in my opinion) to drive is terrible. It is my opinion that, to many people, the pre-conviction suspension is the worst punishment that they will incur in the entirety of this experience. Address your particular situation with a qualified and competent DUI attorney.

Reasonable doubt comes from the recollection of events in a coherent and believable manner. Protect yourself by taking the time to record what happened and by acting responsibly.

2. EDUCATE YOURSELF

DaytonDUI.com was started with the intent that you could find reliable information that would allow you to evaluate your case and choose an attorney. Education about your charge will make you better equipped to find the attorney that is right for you. A good place to start is the article “How to Hire a DUI Attorney” [linked HERE]. Ask everyone you know if they have had good or bad experiences with a particular attorney. Talk to attorneys on the phone. Meet with them in person. Educate yourself about the particular court that you are going to, and the prosecutor, and the location of the court. Check the credentials of the DUI attorneys in your area. [See HERE for a biography of Charles M. Rowland] Sometimes the scariest part of your DUI experience will be not knowing what the court process is like. Good attorneys will try to help you by answering your questions and not trying to take advantage of your vulnerability at this critical time.

My dad always said, “If you know how somebody gets paid, you’ll never get ripped off.” Have a discussion with potential attorneys about how they expect to get paid and what you can expect for that service. Ask who will be handling your case; will it be the attorney you are meeting with or an associate. Ask how many cases they have tried in that court and whether or not they will listen to what you want. One-size fits all is great from some things, but not for legal services. Take control and get what you pay for. Educate your self about your circumstances and your options so that the DUI experience is less traumatic.

3. EMPOWER YOURSELF

Whether it is a Christmas Party DUI Arrest ticket or some other event, some people come to my office, drop the ticket on my desk and expect me to take care of it. Others want to understand every aspect of a DUI case from beginning to end. I will work to make sure that you are taken care of in a manner that meets your expectations. I will conform to what you need your attorney to be. Now is not the time to retreat into yourself, but you must call on your inner champion to make the best decisions possible under the circumstances. Everything we do at DaytonDUI is designed to provide you with a sense that your case is going to be handled to the best of our ability. We have a great staff, good on-line and printed material, the best DUI library around and a proven track record. We want you to win your case and put a bad experience behind you. If you want to find out more, please check our blog or call Charles M. Rowland II at 937-318-1384 or 1-888-ROWLAND.

Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio. He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.

“All I do is DUI defense.”

For more info on a Christmas Party DUI Arrest, check these city-specific sites at the following links:

Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Huber Heights, Springboro, Oakwood, Beavercreek, Centerville

 

Underage Consumption And Ohio’s College Students: Know Your Rights

00DUI & College, DUI Under 21/Juvenile, Ohio Criminal LawTags: , , , , , , , , , , , , , , , , , , , , , , , , , , ,

underage consumptionBeing charged with “underage consumption” is a common occurrence on Ohio college campuses.  The crime of underage consumption is a violation of Ohio Revised Code, which prohibits possessing, consuming or being under the influence of alcohol under the age of 21.  Holding an alcoholic beverage and/or being intoxicated in a public place is enough to sustain the charge.  Students sometimes mistakenly believe that an officer must give them a breathalyzer test to “prove” intoxication.  This is not the law.  College students often compound their problems by being so scared of being arrested for underage consumption that they provide false information to the officer.  Doing so can lead to a charge of Falsification or Obstructing Official Business.  Too often we see a person the cops call the “drunk samaritan.”  This person approaches the police officers and tries to convince the police to let their target go about their business.  This person frequently ends up charged with Obstructing Official Business or Disorderly Conduct. Ohio Revised Code Section 4301.69 contains most of the information concerning underage alcohol possession and use. Penalties are in Ohio Revised Code Section 4301.99.

You may also violate Ohio’s Underage Drinking Law by being the host.  A social host or home owner risks being fined and imprisoned when he/she furnishes alcohol to a person who is not 21 years of age.  You may not know the people at your party, but that does not matter to the police.  The bigger the party the more likely police will be called and the greater the chance of getting caught and/or charged.

A violation of Ohio’s Underage Consumption law is a first degree misdemeanor punishable by a potential jail term of six (6) months in jail, a fine of up to $1,000.00 and other penalties like court costs, community service, probation, alcohol counseling and untold issues with your college.  Under some (most?) college codes of conduct, merely being charged with violating the underage drinking law may subject you to penalties ranging from residential penalties and university penalties to loss of scholarship or dismissal from your college athletic team.  In addition, spending time in jail is humiliating and terrifying.  There are long-term penalties to consider.  In today’s world you will also see your picture of your mug shot on the internet.  What’s worse than that?  Seeing the same mug shot sitting on the desk of the person interviewing you for your first job.

So how should you act when you are approached by an officer? The best answers I have seen come from Ohio University’s “Survival Tips For Court Street.”  This guide is a great explanation of your rights.  It states, in pertinent part,

If asked for ID when you are not in a bar, give them your name, address and anything that identifies you without your social security number or age. You are not required to give the officer your driver’s license or social security number unless you are already under arrest. Ask if you are arrest or in custody. If not, ask if you can leave. (If an officer grabs your wallet or purse it is considered an invalid search). Ask your friends to witness your conversation with the officer. If you or your friends are asked another person’s age, advise the officer that you want to speak to an attorney before answering any questions.

  • The officer can and probably will arrest you anyway. Remember, the police can arrest anyone for anything but unless you’ve done something else to warrant an arrest, they must know at the time of your arrest that you are under 21 before convicting you of underage consumption of alcohol. Mere youthful appearance is not sufficient probable cause to convict!
  • Be polite, but firm. You have the right to remain silent so use it. Do not incriminate yourself, and do not try to run away. Simply identify yourself and ask for your attorney.
  • The police officer may be angry or threatening. Don’t worry, he/she will not hurt you. Unless you give them the evidence, they cannot convict you. Never lie and always treat the officer with respect. But never admit anything, just remain silent.
  • Do not stand near sidewalks or streets with an open container of alcohol. If you are stopped for this or for disorderly conduct, the police officer can seize your ID and will know your age. Know the phone number of someone who is sober to come get you.
  • Stay with your friends and witnesses. Travel in groups. Police officers look for people who are walking alone and appear to be intoxicated. Avoid looking suspicious – don’t hide the alcohol.
  • Being arrested does not mean you will be convicted! Follow the above rules, and you may be able to beat the charges against you if the arrest was unlawful. When you go to your first court date, DO NOT PLEAD GUILTY. Ask the court for more time to discuss your case with your attorney.

Everyone you know, including the police officer enforcing the underage drinking law may disagree with it, but that does not change the fact that you face life-altering penalties if you get convicted of this offense.  I have represented many clients charged with underage drinking offenses in and around the Miami Valley.  I have been able to get the underage drinking charges dismissed or reduced, and we are often able to get the records for the case sealed (expunged).

Underage Consumption Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 Find information on Underage Consumption and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville 

 

Stop & Sniff Case Law Update (by DaytonDUI)

00DUI Case Law, Illegal Police StopsTags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

In Kirtland Hills v. Medancic, 2012-Ohio-4333, a recent case out of the Eleventh District Court of Appeals, the Court reaffirmed the principle that just because a police officer smells alcohol on a driver does not mean that the police officer has reasonable and articulable suspicion to continue the detention of the driver and/or remove that driver to administer standardized field sobriety 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.

This proposition was upheld, with the court stating:

Administration of field sobriety testing is judged under a different standard and requires more than the presence of a single articulable fact. State v. Evans, 127 Ohio App.3d 56, 63-64 (11th Dist.1998). “Because this is a greater invasion of an individual’s liberty interest than the initial stop, the request to perform these [field sobriety] tests must be separately justified by specific, articulable facts showing a reasonable basis for the request.” Evans at 62, citing State v. Yemma, 11th Dist. No. 95-P-0156, 1996 Ohio App. LEXIS 3361 (Aug. 9, 1996).

In this case, the court only sited to the officer’s observation of “extremely strong odor of alcohol” instead of applying the totality of the circumstances test and articulating other facts that could justify the detention.  The Court ruled that this was not enough evidence and remanded the case to the trial court.  In her dissent, the Honorable Mary Jane Trapp sets forth how differing jurisdictions have applied the EVANS factors.

Some Ohio courts have upheld determinations that the mere presence of a moderate to strong odor of alcohol, coupled with a proper initial stop, is sufficient to justify the administration of field sobriety tests. See, e.g., State v. Tackett, 2d Dist. No. 2011-CA-15, 2011-Ohio-6711 (“[t]his court has, however, repeatedly held that a strong odor of alcohol alone is sufficient to provide an officer with reasonable suspicion of criminal behavior”). See also State v. Schott, 2d Dist. No. 1415, 1997 Ohio App. LEXIS 2061 (May 16, 1997); State v. Haucke, 2d Dist. No. 99 CA 77, 2000 Ohio App. LEXIS 1049 (Mar. 17, 2000); State v. Turner, 4th Dist. No. 812, 1993 Ohio App. LEXIS 40 (Jan. 11, 1993).  Other districts have required the presence of additional Evans factors in order to uphold testing. See, e.g., State v. Appelhans, 6th Dist. No. WD-10-026, 2011- Ohio-487 (affirming denial of a suppression motion based upon glassy eyes, slurred speech, odor of alcohol, and refusal to blow into a portable breathalyzer device); State v. Koogler, 12th Dist. No. CA2010-04-006, 2010-Ohio-5531 (reversal of suppression based on odor of alcohol, glassy eyes, and passenger’s possession of an open container); City of Cincinnati v. Bryant, 1st Dist. No. CA-090546, 2010-Ohio-4474 (reversal of suppression based on erratic driving, moderate odor of alcohol, slurred speech, watery and glazed eyes, confusion and clumsiness while retrieving insurance card and exiting vehicle, and admission of alcohol consumption); State v. Burwell, 3d Dist. No. 12-09-06, 2010-Ohio-1087 (affirming denial of a suppression motion based on the early morning hour on a Saturday, erratic driving, odor of alcohol, glassy and bloodshot eyes, and admission of alcohol consumption); State v. Foster, 5th Dist. No. 2009AP020007, 2009-Ohio-4764 (reversal of suppression based on odor of alcohol, early morning hour, guarded and nervous demeanor, driving on a flat tire, and admission of alcohol consumption); State v. Hill, 7th Dist. No. 07-CO-12, 2008-Ohio- 3249 (affirming denial of a suppression motion based on erratic driving, moderate odor of alcohol, bloodshot and glassy eyes, and slurred speech); City of Strongsville v. Troutman, 8th Dist. No. 88218, 2007-Ohio-1310 (affirming denial of a suppression motion based on early morning hour, glassy eyes, slurred speech, moderate odor of alcohol, presence of beer in the back seat, and admission that defendant was coming from a bar).

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.”

Related articles

Standardized Field Sobriety Tests: The One Leg Stand Test

00Field Tests (SFSTs), Illegal Police StopsTags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

English: Bridget Sloan performs on the balance...

The Standardized Field Sobriety Tests (SFST) are a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA) and conducted by the Southern California Research Institute. A formal program of training was developed and is available through NHTSA to help law enforcement officers become more skillful at detecting DWI suspects, describing the behavior of these suspects, and presenting effective testimony in court. Formal administration and accreditation of the program is provided through the International Association of Chiefs of Police (IACP). The three tests of the SFST are:

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

These tests are administered systematically and are evaluated according to measured responses of the suspect.  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.

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 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

 SO WHAT’S THE PROBLEM?

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.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville 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 to40404. 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