Standardized Field Sobriety Tests: Voluntary, Unfair, And Designed For Trickery.
In 2006 I attended the 24 hour course that all law enforcement officer’s attend to teach them how to “Detect DUI’s.” The training was invaluable. I have used it dozens of times to demystify and deconstruct the process for clients and juries alike.
This month I attended the full course again. A refresher course would have sufficed, or perhaps I could have done the instructor course thus allowing me to teach others, but I choose to refresh with the entire course. As I spend my 24 hours immersed in the curriculum I saw the course differently the second time around for what it really was. A course designed upon some generic studies that “appear” to validate the roadside tests, but really it is a course designed to instill into the minds of law enforcement that almost any behavior is indicative of a DUI. In fact, there is a published paper on the issue that concludes these tests are designed for failure.
The course breaks down as follows: observation of vehicle in motion, personal contact and pre-arrest screening. From the moment an officer sees a vehicle he is trained to believe it is a DUI, he is trained to understand that there are 25 “clues” of driving that are said to reliably indicate that the driver is DUI. They are told that the accuracy of these driving clues is somewhere between 50-100 percent. The reality is, however, these are simply lazy driving habits that person does perfectly sober, or when distracted by a cell phone, radio, or passengers. As a result the officer is trained to prejudice his mind, his observations, and interactions with the driver rather make objective observations that lead to a conclusion that is not already predisposed. Despite the clear objectives of the course that state this phase is about answering whether “the vehicle should be stopped,” the training clearly encourages a stop for any reason at all, with a predisposition to believe the officer is dealing with a DUI.
The officer is trained to make contact and make decision based upon contact. The training goal at this stage is based upon what is seen, heard, and smelled “do I have the driver exit the vehicle?” What is said by the driver, how the driver acts, and all other variables are added to the mix, but what s/he Sees, Smells, and Hears, is what they are to rely upon. Guess what?; Almost everything said when coupled with the admission to drinking or the odor of alcohol is labeled as a reliable clue of “possible intoxication. However, the training emphasis minimization of what was done right and only focusing on what was done wrong in the officer’s opinion, because the Detection has but only a singular goal in mind; DUI arrest based upon less than reliable facts. Officers are trained to prey upon a driver’s nervousness and deference to their apparent authority. Upon contact the officer is trained to confuse, distract, and in essence “bully” a driver; the officer is trained to ask simple but intentionally distracting questions: questions by the way that a Washington driver is under no obligation to answer. Training begins seeking the driver’s typical papers that are not always easily found, while the driver searches the training encourages officers to interrupt and distract a driver. For instance, the materials specifically directs an officer to ask odd questions during one task, to start another, and yet another, never really caring what the answer is, but only to establish confusion, to be able to point to facts that they can rely on to justify an exit order. Funny thing is, officer’s will often repeat the same question and expect to get a different answer, yet, when a person repeats the answer, the observation factored into their justification for exit, or arrest is “repetitive speech!” This all plays into the course objective of answering the roadside question presented of “should I have the driver exit,” yet at the training to this point focuses on issues that lead up to this goal, as well as the next.
By the time the driver is out of the car, the third phase sums it all up, as it is called “Pre-Arrest Screening” Really? Yes, really, the phase itself implies the inevitable just like the training as a whole. Pre-Arrest screening is the stage of Standardized Sobriety Tests that are in line with the training curriculum, confuse the mind and place a person in the most unbalanced positions where natural reactions become clues to base an arrest upon and in cases where the breath test is under the legal limit or refused, have the state prosecute a person for having failed these tests. Furthermore, the tests are not to be administered upon certain people (over age 65, or 50 lbs overweight), and for those that have some actual physical disability (hip arthritis, injury, inner ear condition, etc.) the officer is trained to assure the person that the issue will be “taken into consideration.” The problem is this: there is no training that teaches or even addresses what consideration can or should be made. As result the officer’s are trained to lie to the subject and count clues that when totaled tell them to arrest, but without any criteria to separate the clues due to physical injury/impairment from that of possible alcohol impairment.
The tests themselves conceptually are not that hard, but the reality is it takes students of the tests 16 of the 24 hour course to learn how to administer them and also learn the tricks they don’t teach the driver to make the tests easier; easier to demonstrate for a subject and jury. The officer may need to demonstrate the tests in court, and failing them in front of a jury would not be the type of “convincing” evidence the course speaks to. As a result, they are taught some tricks to avoid such embarrassment. I have discussed these tests in detail on my site but a refresher is indeed overdue.
Horizontal Gaze Nystagmus (HGN)
Otherwise known as the eye test, this is a the only test that does not require some actual physical agility, and while the test requires a subject to follow a pen with their eyes, the test can be challenging as the sanding position is feet together and hands at the sides and the person’s gaze to set look up and follow a moving visible point. Anyone who has stood at heights, the surest way to fall down is look up and the passing sky will cause you to lose your balance. The HGN test is typically done at night, and is relatively easy as all a driver needs to do is to follow a pen. However, the training has the focus point of your eyes that a driver is to follow “slightly” above eye level thereby forcing you to look up. The test is said to be accurate, but the practical reality is, it does only one thing: confirms that the person has consumed alcohol. Student of the course are taught a formula, where the variable plugged into the formula is nothing more than a guess.
The Walk And Turn (WAT)
The WAT instructions are intensive and “wordy” and they are intense and sound straight forward, but they are designed to sound so. First if there is no designated line available like those painted in a parking lot, the person is told to “imagine” a line and the told to place their left foot on the line that does not exist, and then place their right foot in front of the left in the same “line” touching heel to toe. Then place your arms and hands at their sides and to NOT move from this position, and to not start the test until told to do. The instructions take about 30 seconds if done properly and slowly. They are as follows: When I tell you to start, walk down the line (real or imaginary) taking 9 heel-to-toe steps, turn and take 9 heel-to-toe steps back. The officer then shows how to take these steps, and then is also required to demonstrate the turn while verbalizing the instructions. When you get to the 9th step, leave your front foot planted on the line and take a series of small steps as you turn around and then begin walking back down the line touching heel-to-toe. As you are walking keep your hands at your side, look down at your feet and count each step out loud. Once you begin this test do not stop waling until you are done this test. Do you understand? When I tell you to begin count your first step as 1. You may begin.
As you sit and read this feel free to assume the heel to toe position and see how long you can stand there while the instructions are given (the officer can stand in this position longer than most because he practices this test, and is taught that a slight shifting and relaxing of the legs allows good balance control). Questions are permitted but they are answered with the same strict language originally given. In essence a driver is told to walk in a manner that produces a natural reaction to lift arms, walk slowly such that balance is impaired from nothing more than the test requirements. Furthermore, when you read the instructions for the final test it is clear to see that the natural reaction of lifting one’s arms is warned about 3 times and this test it is mentioned 1 time. The officer is on the lookout for 8 possible things a person may do “wrong.” If the person steps out of the instruction stance they get a clue/demerit, if the officer uses halting speech during the instructions it implies permission to proceed, and then the clue is “starts to soon.” The test is not yet even begun, but 2 clues of a possible 8 to look for gives the officer the threshold point to consider this test not passed. The remaining clues are, stops walking, steps off line, misses heel to toe (more than ½ inch), raises arms (more than 6inches), improper turn, and improper number of steps. The math on this test is simple, a person takes 18 steps and thus has 18 opportunities to get a possible 6 remaining clues (assuming they stood properly during instructions). 18 x 6 = 108 opportunities to do something wrong. Assuming the person is wearing flip flops during the test and therefore does not properly touch heel to toe on 1 step, and when that happens their balance is momentarily thrown and they raise their arms more than 6 inches (6 1/4 is too much). They now have 2 clues and have failed the test, despite the fact that they did 106 of 108 things correct and therefore scored 98%! When have you ever taken a test where your were told that that anything less than 99% compliance meant you failed? In fact, the necessary score to learn that deems a student proficient and competent in these “sobriety tests” 80%! Enough said about this unfair test,
One Leg Stand (OLS)
The OLS, is a test where the officer instructs driver to stand on one leg, not because it has anything to do with driving, or even the counting they require, but because standing on one leg is rarely something anyone can do for 30 seconds without violating the criteria. This is also another test where the officer does not share a trick with the driver (nor is this information shared with a jury. Remember, this is the final phase called “pre-arrest screening.” The training and the goal objective makes it very clear that the screening is just a formality for the inevitable arrest, so why would an officer share the trick with anyone. Again, being overweight or over the age of 65 precludes this test from being offered, and if there are any injuries or illness they will NOT be considered despite the officer’s assurances because such training for these does NOT exist. The One Leg Stand is instructed as followed: Stand with your feet together and hands and arms at your side. Remain in this position until I tell you to start. Do you understand? When I tell you to start, I want you to lift one leg, either leg, raising your foot off the ground approximately 6 inches and keep your foot parallel to the ground (the officer then demonstrates). You must keep both your legs straight during the test and your arms at your side. While maintaining this position, I want you count out loud like this (demo one-thousand and one, one-thousand and tw0, one thousand and three, etc.). Your arms must remain at your sides at all times and you must watch your raised foot during the test. Do you understand? The test may begin. The test is timed and the driver is expected to stand for 30 seconds with one foot off the ground counting out loud. At no point during the test does the officer share the fact with the driver, nor the jury, nor the judge, that if you bend the knee of the leg stood upon balancing is much easier. The things the officer grades a drive on is whether they sway, they lift their arms, put the foot down, or hop, in an effort to keep balance. Again, none of these things are likely to happen if the knee is slightly bent. If any 2 of these 4 things is seen, the test is considered not passed, despite a 50% completion.
This third and final test completes the “Pre-Arrest Screening.” The only person who decides what is seen and marked as clue is the officer, and since he is screening you for an arrest you can bet he will see something. In every DUI trial I have ever conducted it is inevitable that the officer testifies that he administers these tests hundreds, if not thousands of times and not everyone he “screens” with these tests is arrested. In my opinion and experience that is simply not true. If it were true, I would not regularly represent people who provide a breath sample of less than .08, and currently, as low as .04! The breath sample after the fact is proof positive that these tests are designed for failure, these tests are a very effective tool to achieve their purpose: “Pre-Arrest Screening.
In Washington these tests are considered a search; therefore they require a warrant to achieve such a search, or the driver’s permission to conduct this search. Furthermore, they are voluntary. Voluntary means that there are no consequences to refusing to volunteer. However, in a suspected DUI stop the refusal to do the tests leads to an immediate arrest. A decision to do the tests leads to the same result. In my opinion, these tests should be politely declined and then a driver should brace themselves for an arrest.
As it can be seen, there is a specific philosophy to these tests, and to the untrained observer or even a jury member, the officer will present them in a scientific manner, and in a manner of fairness. Unless your defense attorney has gone through the course, or even been qualified as an instructor of the course, the problems with the test, the unfairness of the tests, and their hidden design objectives will not be exposed.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success due to specific and focused DUI training. Confronting all witness and having the knowledge and skill to expose the limitations and biases of their proffered evidence is an important right that effects each and every DUI case where there is a breath or blood test measuring alcohol concentration, and this is especially true when a DUI prosecution is based upon officer “observations” during unfair tests. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands. | http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
3 Judge Panel Requires Breath Test Evidence To Comply With Scientific Standards.
Yesterday, September 22, 2010, a King County District Court 3 Judge panel found that breath tests, previously held to be inadmissible for any purposes, opened the door to permitting the test once again. However, before they can be admitted the Judges required that uncertainty must be provided in discovery and to the jury or, upon motion, the breath test results will be suppressed. In the Court’s Decision the Judge’s wrote:
For the reasons stated below, we hold that historic standards of justice – contained in the federal constitution, case authority and court rules – require that the State present breath test readings, both in pretrial discovery and at trial, showing their true value, rather than wrapped in such a way that a false picture is presented, either to the defendant or to the trier of fact.
Without this evidence a breath test is NOT admissible for the reasons stated in the 31 page decision for a very simple reason: “absent a confidence interval, a “final” breath-alcohol measurement is only a “best estimate” of a person’s breath-alcohol level.”
The press, the opposing prosecutor, and other commentators have pointed out that the ruling is not founded upon tradition rules regarding the breath test evidence and they are absolutely right.
This decision was predicated upon something much more significant and important: “standards of justice.” This is not a novel concept and to those of us involved in the litigation for the past 5 years neither is this ruling. In fact this ruling is very similar to other jurisdictions where this issue has been challenged and argued.
Most recently Island County District Court, and Skagit County District Court have both arrived as similar conclusions and in simple terms require the State to produce the “uncertainty” calculations because failure to do so shrouds the breath test result in the aura of science and juries can easily be misled.
Those who have opposed the notion of providing the uncertainty calculations do so because they say it doesn’t matter except in those cases where the breath test result is in the .08 range. However, despite this concession, opponents of uncertainty were still unwilling to provide the information because in so doing, the limitations, the internal bias, and the sample bias are all exposed for what they are: a guess.
The Constitutions of this State, and of this Country, both entrench one of the most important rights we have that makes us a free society: Proof beyond a reasonable doubt. Failure to provide information that shows the machine’s fallibility, bias against subjects, and blood alcohol estimate that is scientifically unsound and only samples breath that is the size of a golf ball violates the principal.
Interestingly enough, it is the advanced nature of the State Toxicology Laboratory that has led to this ruling: Since the lab has the technology and personnel with the necessary education to compute the uncertainty calculation the scientific community demands the production of this information so that the scientific evidence can be scrutinized. The rule of law requires adherence to scientific principals established by the community when the Prosecution seeks to use the evidence to take a person’s liberty. In fact, the 3 Judges recognized this principal and quite frankly set the record straight on page 2 of their ruling where they wrote:
[b]ecause the subject matter of this opinion is so heavily steeped in scientific principals and procedures which are largely unknown to the Judiciary and the Bar, the Court is including in the Findings explanations and definitions of many of the principals involved.
With this ruling now in the books it is expected that many jurisdictions around the state will follow this rule for purposes of determining whether a breath test in a DUI prosecution in any given county in Washington will in fact be presented to a jury.
Currently, in Whatcom County, this motion has been presented to the District Court in a DUI prosecution and both myself and the State Prosecutor as well as all criminal defense attorneys, more specifically DUI defense lawyers in the county await a ruling that is rumored to be close to being complete. Also, in DUI cases prosecuted by the City of Bellingham, it has been agreed that the transcripts from this King County hearing will be relied upon for purposes of answering the same question of breath test admissibility. As a result of this now public King County decision there is a possibility that the Bellingham City Prosecutors and DUI lawyers for all DUI breath test prosecutions will also agree to abide by this well reasoned ruling.
This ruling, and the rulings in Skagit, Island, and hopefully Whatcom Countys, is the product of years of litigation in various courts around the State. Regardless of what your personal feelings are towards the crime of DUI, as a person who resides in this State and Country, these decisions are something to be proud of, these decisions are hallmarks of our system of justice that require the best possible evidence in seeking a conviction. All too often the rhetoric, the skewed statistics, and even the pain as a result of a crime having been committed gets in the way of system of rules that are required to be followed. While I believe no one in their right mind advocates for drinking and driving per se and the best evidence I can ever give to avoid a DUI is not some gimmick, but rather it is simple: “Don’t drink and drive.” But this does not change the fact that mixing the two is NOT necessarily a crime and is in fact legal in this State.
However, if you disagree with the law; Vote to change it; Move to a state or a Country where you agree with the law; but as long as this State permits drinking and then driving unless or until a person reaches, or exceeds the .08 limit, or is affected by their alcohol consumption, the State MUST and IS now is being held to the most important law that our system historically recognizes: “standards of justice.” It is these standards together with scientific rules, regulations, and other principals of law combined with the intellectual honesty of Judges like these 3 in King County, the 2 in Skagit, and the 1 in Island County that makes this the best system of justice available. Bravo Judges.
Jonathan Rands is an experienced, dedicated, and a tenacious DUI lawyer with proven DUI defense success. He has been apart of every major breath test challenge in the various courts where he practices in the last 8 years. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket at http://www.kgmi.com/pages/7015350.php
Island County Judge Requires Prosecution To Disclose DUI Breath Test “Bias & Uncertianty” Disclosed To Jury.
Recently, Island County Judge, P. Strow found in favor of all DUI defendant’s when he ordered the production of breath testing bias. The order for production came in lieu of a order to suppress the tests which is what the defense originally requested when the prosecution had not provided information and calculations regarding the limitations of breath testing. Furthermore, it was ordered that such information be disclosed also to the jury during a DUI breath test trial. The ruling came in the case State v. Arnold and while it is a very straight forward concept, it is information that the State Toxicology Lab has been willing to do in only cases where the breath test was within a certain range. The information sought by the defense was, and is not, a technicality but rather a very real calculation regardless of what the breath test reading is.
In this state, the legal limit is .08, and there is an enhancement for punishment purposes when a driver provides a test at or above a .15. The concept of uncertainty and the ruling from the court will require a jury to hear that a driver’s breath test may in fact be under a .08 or under a .15 when the test is close to those numbers. Since the difference between .08 and .07 is the difference between a criminal conviction and a finding of Not Guilty. Likewise, the difference between a .14 and .15 is equally important because a first offense DUI conviction with a breath test of .14 requires a person to spend 1 day in jail and suffer a 90 day license suspension, while a conviction for a .15 breath sample is 2 days of jail and a 1 year license revocation. In the case of a driver who has a prior DUI conviction, the difference in mandatory sentencing is 15 days of jail, 30 days of Electronic Home Monitoring and a 2 years driver’s license revocation. Whenever there is a test that is close to these legal limits and sentencing enhancements, the accuracy of the test and the testing instrument and program should be of paramount concern.
Currently, the Washington breath testing program lags behind most states in the nation with its technology and uses one of the oldest and most obsolete machine to determine a driver’s guilt or innocence and likewise before a case ever sees a jury trial, that same obsolete and problematic machine is used by the Department Of Licensing to suspend a persons driving privilege for at least 90 days.
As I have mentioned numerous times few if any people (including DUI lawyers) believe that DUI is a good thing, rather, what I advocate for is good proof, the highest standards in place for analyzing breath, and only the most current and reliable methods of the breath testing program to be in place. There are such standards in place for DNA testing to solve the most reprehensible of crimes so why is DUI any different? It should not be “easier” to convict a person of DUI simply because it is considered a lesser crime. In fact, i think the opposite is true as evidenced by the outcry of citizens upset with the issue of DUI in this state and Country. In fact many citizens are seeking harsher penalties and it is because of this likelihood that the evidence used to convict a person MUST scientifically reliable above reproach. It is only then that we can be satisfied that the person was in fact guilty of the crime charged.
Law is no different than the rest of the world and as we gain a more reliable method, techniques, and technology to accurately determine a breath or blood sample we must embrace it. Currently, the State Patrol has new cutting edge breath testing machines in storage, but has not yet implemented them for budgetary reasons. As a result, Constitutional right to a fair trial, proof beyond a reasonable doubt, and ultimately the guilt or innocence of some driver’s close to the limit, or close to a sentence enhancement falls prey to a budget rather than the best possible evidence.
Since there is a an ability to use and implement new methods and technology of breath testing to be certain beyond a reasonable doubt, there is also an increase in excluding those that are innocent of the crime. Currently, if a person provides a breath sample of .081 on any given breath test machine in this state, it is more likely that they are under the legal limit. However, if a jury is not told this, if the bias and the “uncertainty” of the breath sample and procedure behind the test is not disclosed a jury will likely make a wrong decision as a result of being uninformed, and a conviction that cannot be undone by later more advanced testing cannot fix the problem. It is only through intellectually honest rulings such as this one, where the legal system progress and advance to more reliable and accurate testing measures. Currently King County awaits a ruling on this issue as does Whatcom County where Judges have heard the motion and testimony and are writing their rulings, while in Island and Skagit this issue is resolved. These ruling come on the heels of poor science and testing procedures exposed 2 years ago while the State Toxicology Lab struggles to recover from a scathing ruling that suppressed breath tests in King County. This ruling remains intact as of today’s date.
In the end what is sought is only the use of the best science be used to ensure what our state and federal constitutions demand: Proof Beyond A Reasonable Doubt. This cannot be achieved unless its counter part is enforced: It is better to allow 9 guilty persons go free than to wrongfully convict 1. This is what the law is build upon. This is what unpopular crimes like DUI require despite emotionally driven rational and rhetoric.
DUI is not a simple charge. Defense of the charge is not to be taken lightly nor is it for the inexperienced, or even an average lawyer. Rather is requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is experienced, dedicated, and a tenacious DUI lawyer with proven DUI defense success. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands at http://www.jrandslaw.com| Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.
