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.
Jonathan Rands Completes Annual DUI Defense Advanced Training To Ensure Fair Trial And Use Of Best Evidence.
Late this past summer as well as last month I attended 2 annual 3 day seminars and conference dedicated to trial skills and techniques, as well as advanced understanding and challenging various types of advanced evidence issues in DUI cases.
The first of these two was presented by The National College Of DUI Defense, an organization I have been a General Member of since 2005. The conference was held at Harvard Law School and keynote speaker was F.Lee. Bailey. College General Members represent the most experienced DUI defense attorneys in the country and are the backbone of the college—capable, experienced attorneys who dedicate a portion of their practice to the defense of DUI cases throughout the country. Training always embraces the most innovative and creative methods of DUI defense as well as polishing the corner stone of trial work like cross examination.
The second seminar was and advance evidence seminar. The previous year I attended this same conference, but also lead a specialized breakout session on roadside sobriety tests. These training session are important because as a DUI defense attorney, my clients freedom and driving privilege (to name only 2) depends on my skills and knowledge that are accumulated and practiced to the point where they are instinct and second nature. Spending time with other attorneys from around the nation who have likewise dedicated their legal careers and practices to the defense of citizens accused of DUI creates a scholastic environment where we are all dedicated to the same cause, and share our success and failure in the courtroom. Believe it or not, defense attorneys, secure less Not Guilty verdicts than Guilty verdicts, but it is usually the cases we fight hard and lose that are our best teaching aids.
This annual conference allows a lawyer student to choose their own schedule of lectures and breakout sessions so that the lawyer can sharpen their skills, or gain a greater understanding of procedures, protocols, and highly technical areas of science that DUI prosecutions are steeped in. The program is also designed to allow DUI defense lawyers to practice in front of other lawyers and thereby receive constructive criticism and share ideas and concepts that enhance the lawyers skill set.
At this years program I choose to revisit blood testing and the Drug Recognition Evaluation (DRE) protocol for Drug based DUI prosecutions.
The science of blood testing is “regulated” by national scientific standards, but even so, one should never under estimate the power of human error and the fallibility of machines that are programmed by the human hand. Blood testing uses Headspace Gas Chromatography. This is a type of testing where a vial of blood is shaken and mixed for a period of time and then the blood itself is NOT actually tested. Rather, what is tested is the airspace above the blood level (the “Headspace”) as it is sealed in a “vacutainer” tube. The tube is a vacuum sealed space with suction helping to fill the tube from the subjects body when blood is drawn. To analyze and test the head space above the blood after it has been shaken, the machine doing the analysis injects a small needle into the top of the soft rubber tube (stopper) and a small bit of gas is sucked out and then ran through a machine. The gas substance is injected into another know gas and then forced to travel through a tubular line where at the end of this journey the substance is quickly burned up in a actual flame. It is this end process that results in the analysis of the substance and the alcohol concentration.
This is a very rudimentary description of the process, but suffice it say, most do not understand that the blood content itself is NEVER actually tested. Furthermore, many do not realize that the machine is used to test all sorts of other fluids and compounds and the cross contamination potential is huge. Add to that fact that the machine is an automated one and most times the analysis is done without human oversight. As a result of these and other issues, a complete understanding of the process is necessary to adequately challenge, not only the end result, but the process itself, because what is generated is a number. What is presented is nothing more than a number to which the prosecution points to as guilt beyond a reasonable doubt. However, in Washington State, and most other States, the accuracy and the reliability of that final number is always a critical issues that must be addressed in arriving at a final decision.
While this overview is not intended to be comprehensive, but instead an brief review of a complicated process fraught with potential error and to show that the net result of spending time learning from other attorney’s who excel in this and other scientific areas where it intersects with the law, benefits not only future clients, but helps a defense attorney explain to a jury the limitations of the testing utilized in any given case.
The difference between exposing error by pulling back the curtain on pseudo-scientific, and unreliable evidence can mean the difference between lockup or liberty. While this may seem dramatic, consider how many recent cases there have been where legitimate science has exonerated previously convicted persons who were convicted by the use of evidence that was of poor quality, and was either misunderstood, or presented as infallible, and was not challenged by an advocate with adequate knowledge? The fact that the charge of DUI is “unpopular” is no reason to allow less than adequate evidence to untested, unscrutinized, and unchallenged if it fails to be collected and analyzed properly.
The other practice area i choose to spend more time on was the Drug Recognition Program, or DRE. This is an area of law that is NOT based upon science, NOR supported by rigorous peer reviewed research, NOR endorsed by any agencies other than the those law enforcement agencies that promote the circular reasoning of: “the program works because we say it works.”
While I have previously completed a 16 hour course on the DRE program overview, it had been a while since I represented a citizen accused of a Drug-DUI, so a close review of the materials presented, and the companion workshops where a critique of courtroom skills was done was a welcome review and challenge.
The DRE program is a book unto itself and a short blog will not adequately capture the program, but from a brief overview perspective, the program starts with ruling out alcohol suspected impairment and then runs a subject through a series of “sobriety” tests that are not related to drug impairment. This entails, a physical examination that requires monitoring of blood pressure, physical inspection of the subjects arms, a dark room examination, and a custodial interrogation of the person that usually leads to a disclosure of a substance the person previously ingested. Final steps are the rendering and recording of an officer’s opinion of what category of drug the person ingested as well as the actual drug the officer suspects. For example, category could be “Cannabis,” and actual drug being “Marijuana.” Guess what?- The officer’s typically render an opinion that the suspected substance ingested is the same as that confessed to! Brilliant detective work! The final step in the process is the drawing of a subjects blood and an analysis of the blood as described above.
This is not the whole procedure, but the suffice it to say, it is the “meat and potatoes” of the program. Pulling back the curtain on false assumptions, coercive procedures, and the close examination of the blood analysis itself is critical and exactly why rigorous training and experiences in these cases is paramount to be a successful DUI defense attorney.
Recently, two newsworthy and related events have come to pass; First – Amanda Knox verdict was over turned due to a showing that the investigation was less than adequate, in fact scientific evidence was processed incorrectly and failed to support the allegations; Second- the Seattle Times reported on unlawful and abusive Police Behavior, with respect to preservation of exculpatory evidence, failure to turn over such evidence, destruction of this evidence,and a denial that it even exits!
These may be extreme examples, the fact of the matter remains that they gained notoriety because the evidence was challenged, because the defense lawyers dared to pull back the curtain and say, “look at this with a critical eye!” We live in a country where proof beyond a reasonable doubt means something, but all to often jurors, judges, and prosecutors settle for what they think is simply “good enough” as a result of the type of charge the accused person is facing. If defense attorneys fail to to educate and then use that education to examine the evidence with the legal tools provided by the Constitution and State Court rules then they have failed their client, the system which requires them to be critical, and their oath as a defense attorney.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. Confronting all witness and exposing the limitations 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, or simply based on officer observations. 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.
Washington D.U.I Arrest Now Gets Mandatory Vehicle “Lock-Up!”
Unlike your driver’s license, which may not be suspended, revoked, or otherwise “lost” when you are arrested for a DUI, your car is not so lucky as of July 22, 2011.
An Arrest for DUI (RCW 46.61.506) or Physical Control (RCW 46.61.504) now require a mandatory 12 hour impound at the owner’s expense. The discretion formerly held by the arresting officer has been removed with only 2 exceptions: the vehicle is a commercial vehicle or is a farm transport vehicle and the registered owner was not a occupant of the vehicle when the stop occurred.
Many commercial vehicles are not owned by the driver’s who are hired to drive them so the law seems to respect their ownership interest in the vehicle as well as the trailer or load it may be carrying. The statute commands the officer that he or she SHALL provide and invest a reasonable amount of time and energy to arrange for the owner of the vehicle to take possession of the vehicle. The problem, however, is that the statute uses the specific language of owner and there is no authority to permit the owner to send or arrange a suitable driver. Consider the owner who cannot get from his residence in New Jersey to retrieve a fleet vehicle of his. He is not permitted to have anyone else take possession of the vehicle. The same may be said for farm equipment, except they are also in addition likely hard to find proper transport for so an exception can be made.
The mandatory impound is for 12 hours from the time the vehicle arrives at the tow storage yard, unless there are 2 or more registered owners of the vehicle OR there is a legal owner of the vehicle that was not the arrested driver. Under these circumstances, one of these persons may retrieve the vehicle after it arrives at the impound yard. This means a tow operator must take possession of the vehicle. As a result, contacting the registered owner prior to vehicle being seized by the arresting officer and transported by a tow company while the vehicle is still on the roadside, is no longer possible. As a result, charges for the hook-up, tow, and time in the tow yard in the form of storage will be accrued.
Given this financial gain by every tow company state-wide, it is no surprise that they were a very vocal special interest group and fought hard for this law. While many supporters of the law cite to the case of “Hailey” and the community safety concern, it is important to remember and highlight the fact that the arresting officer previously ALWAYS had the ability to impound the vehicle previously driven by a DUI arrestee. The officer in “Hailey’s” case choose not to. He choose not to even though that arrestee (who later returned to her car after her DUI processing) had a pending DUI,had a suspended license, and did not have the ignition interlock that was required due to her restricted driver’s license. This now mandatory law was always a possibility but it was the negligence of one arresting officer (as determined by a jury) and the multimillion dollar verdict that was the spark of this legislation.
While the community safety justification is one that cannot be disagreed with, there is no such practical problem in Whatcom County for DUI arrests. This is because the Whatcom county jail has a policy of mandatory booking of DUI arrestees. The arrested driver will not be released until a sober driver can be arranged to pick them up who must meet face to face with that driver and the arrested person proves a breath sample on a portable device that is .04 or lower. As a result of this, justification of this new impound law is less persuasive and the apparent influence of the tow truck lobby is in fact a reality.
While many other jails have a similar policy, many do not. In a Mount Vernon DUI, or Anacortes DUI, or any Skagit County DUI arrest, the jail will accept a DUI arrested driver, but only when space allows as the dangers of overcrowding have to be considered. In those counties, the officer can call the jail and see if the person will be accepted. If not, then the impound can move forward. Nevertheless, while the spirit of the law is a good intention, the practical effect of the law can be unforeseen and undesired such that the law requires an amendment.
It should be kept in mind that vehicle impound is not a seizure and forfeiture of the vehicle forever, unless the vehicle becomes abandoned, but rather, the law only permits a hold for a 12 hour period unless one of the previously described circumstances exists.
The law also removes liability for any damage or loss the vehicle sustains post-arrest of the driver, even if the officer departs the scene before a tow truck driver arrives to take possession of the vehicle. The statute permits the officer to simply lock the vehicle with the notice of tow and impound form inside the vehicle and leave the scene if, or when: the officer has waited 30 minutes since requesting the tow truck/impound; the officer is presented with “exigent” circumstances that are defined in the statute as “being called to another incident or due to limited available resources being required to return to patrol.”
To the average citizen who is unfamiliar with the nightly occupation of a officer conducting “emphasis” patrols the statute is essentially the officers to not remain with the vehicle because they are always short handed such that they are operating under “limited resources.” Sure it is just a car, but we tend to keep many valuable and important items in our vehicles and this opens them up to loss or destruction and the driver has no recourse. In a county where the driver will not be returning to the vehicle anyways due to mandatory booking, the complete waiver of liability may serve as a extra punishment for the DUI arrestee who happens to use their vehicle as a mobile office.
Finally, this statute may also punish an owner, who never really uses the vehicle as it is typically in possession of an employee for work. However, only a registered owner(s)s or legal owner(s)s may retrieve the vehicle from the impound lot, either early or post-12 hour hold. As a result, the only person who can practically get the vehicle, after the 12 hour hold or longer, is the former driver/arrestee, but has no ability to do so. This could be another extra expense in the form of longer storage time, therefore longer fees and travel expenses for an absentee properly owner.
This is not intended to suggest that this law should not have been passed, but rather, it is an example of good intentions affecting various unintended citizens and is the result of rushing legislation to appease the lobbying party at the expense of logical and measured thoughtfulness before stamping an effective date on a bill.
Jonathan Rands is an experienced, responsive, and dedicated DUI trial lawyer with proven DUI defense success. The impound of a driver’s car will also trigger a hearing to contest the impound legality and fees but this is a time sensitive matter and you must act within 10 days. 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.
