Adam Woody Law

Will Uber Cut Down on DWI’s in Springfield?

According to a recent Springfield News-Leader article, DWI arrests in Springfield have gone down since Uber became operational in Springfield 4 months ago. See the News-Leader article below.

636301993668365477-0513SNLDWIs-Web

(Photo: News-Leader Illustration)

When Missouri lawmakers passed a bill this session making it easier for ride-hailing services like Uber and Lyft to operate in the state, they lauded the bill’s potential to reduce drunken driving.

They could have used Springfield as an example.

Since the City Council tweaked the rules to help bring Uber to Springfield in November, the number of DWI arrests in the city has gone down. But there’s some debate about how much credit to give the new companies, which allow customers to hail rides from nearby drivers using an application on their smartphones.

An Uber spokeswoman said the company’s drivers do most of their pickups on the weekends in downtown Springfield, where people might otherwise choose to drink and drive.

Lt. Stacey Parton, in the Springfield Police Department’s traffic unit, said he has the Uber application on his phone and he sees its potential for reducing drunken driving, but he needs more data to truly understand Uber’s impact.

“I will say that Uber has had an effect,” Parton said. “Statistically, I am not sure that we can quantify it right now, but it has had a good effect.”

Uber launched in Springfield in November
Uber launched in Springfield in November (Photo: David Ramos, Getty Images)
From December to March — the first four full months that Uber has been operational in Springfield — there was an average of 47 DWI arrests per month in Springfield.

That’s down from an average of 55 DWI arrests per month in 2016, and way down from the five-year average of 76 DWI arrests per month in the city.

But DWI arrests had been trending down in Springfield prior to Uber’s arrival in November and Lyft launching in January.

Parton said there are other factors to consider when looking at DWI numbers.

In late 2014, Greene County instituted a policy allowing police to draw blood from suspected drunken drivers who refuse a breathalyzer test. Parton said he believes that policy is working as a deterrent.

“Word has gotten around,” Parton said. “And I think it has caused people to think more about drinking and driving.”

Parton also pointed to ongoing public awareness campaigns, more housing downtown and the dissolution of SPD’s dedicated DWI unit as factors that might be leading to fewer DWI arrests.

Academic studies have drawn varying conclusions about the impact of ride-hailing companies on drunken driving.

A 2016 study from the American Journal of Epidemiology found that Uber did not have a noticeable impact on drunken-driving fatalities in the nation’s 100 most populated metropolitan areas. But Uber points to a 2015 Temple University study that found a drop in alcohol-related driving fatalities after Uber was introduced in California.

On its website, Uber also touts a 10 percent drop in DWI arrests that followed Uber’s launch in Seattle.

 

Click Here for the Full Article

What to do If You Are Pulled Over for Suspected DWI in Missouri

What you do and don’t do after a DWI stop can affect the outcome of your case. Your actions or those of the police may enable your DWI defense attorney to obtain a dismissal of the charge or another positive outcome.

After You Are Stopped By The Police

If you have been drinking and are pulled over, keep the following in mind during your interaction with the police officer:

  • Be respectful and cooperative — Hostility or rudeness will only invite increased scrutiny by the officer. Be polite and responsive to the officer’s questions.
  • Remember that you are probably on camera — Many DWI stops in Missouri are recorded by squad car videos. This video can provide evidence that supports the officer’s decision to arrest you. Be mindful of this fact and behave appropriately.
  • You have the right to remain silent — Provide the officer with your driver’s license and insurance card. But don’t answer any questions regarding your consumption of alcohol or admit that you have been at a bar. At this point, the officer is looking for information that will allow him or her to continue the investigation to find evidence against you. The less information you provide, the more difficult the officer’s task is.
  • Field sobriety tests — In asking you to perform these tests, the officer is looking for evidence that you are impaired. Respectfully decline to perform field sobriety tests. If he or she presses you to perform these tests, restate your refusal in polite language.
  • Do not submit to a portable breath test — The results from this hand-held device can provide probable cause for the police to arrest you. Refusing to take a portable breath test does not violate Missouri’s implied consent law.
  • Get legal help as soon as possible — If you refuse to perform field sobriety tests or take a portable breath test, you may be transported to a police station and asked to take an official breath test. At that point, should you take the breath test? That is a complicated issue that depends on the specific circumstances of your case. You should obtain advice from an experienced DWI defense attorney.
Source

Here’s What Happens When Your Uber Driver Gets a DUI

front view of a car driving fast at night

When Katie Gallion’s Uber driver started swerving across the road’s rumble strips only 15 minutes into her ride near Durham, North Carolina, on June 3, she decided to give him a pass. At 10 p.m., it was dark outside and raining hard, she told BuzzFeed News. She didn’t know he’d polished off four beers before starting to drive for Uber that night.

When the car crossed over a grass median, coming precariously close to the oncoming traffic lane, Gallion began considering her options. “I was getting really scared and contemplating that maybe I should nicely ask him to pull over,” the 33-year-old pharmacist said.

But she waited, and after turning onto a two-lane country road, the driver veered off the road and into a ditch, where the ride continued. “I was a crying mess, thinking, Oh my god, what if he doesn’t let me out of the car?” Gallion said. “Then I yelled, ‘What is going on? Let me out!’”

Finally, the driver pulled into the parking lot of a closed minimart and let Gallion out of the car. “I’m a good driver,” Gallion said he told her in a halfhearted attempt to convince her to continue the ride. Then he offered to call her another Uber.

Gallion called a friend instead, and together they called Wake County police. “I really could have died,” Gallion said. “I don’t know what would’ve happened … if I didn’t get out of the car.”

Gallion’s Uber driver was arrested for driving while impaired at 11:09 p.m. — about an hour after her ride began. According to Wake County Superior Court records, he had a blood alcohol level of 0.15 — nearly four times the .04 legal limit for commercial drivers. The driver, who had no prior arrest record, was also charged with failure to heed a light or siren.

Reached for comment, Gallion’s Uber driver told BuzzFeed News he had accepted one other fare on the night of the incident. He said his memory of Gallion’s ride is unclear. “I remember knowing that she was uncomfortable and it was raining,” he said.


Gallion reported the incident to Uber at around 1 a.m., after reaching her friend’s house. About 12 hours later, the company responded with a boilerplate email and a refund of $69.24 for her ride. In a follow-up phone call, a company representative told Gallion it was “working diligently” to investigate the incident but could not discuss it in detail because of its privacy policy. She asked if he had been deactivated. Uber declined to tell her, citing a company mandate “to respect the privacy of all users.”

“Uber has a zero tolerance policy for the use of drugs and alcohol, and upon learning of these allegations, we immediately removed the driver’s access to the platform,” an Uber spokesperson told BuzzFeed News. Uber said this driver in particular had no prior safety complaints and was “highly rated.


BuzzFeed News reported in March that screenshots of Uber’s internal customer support platform showed the company’s instructions for how representatives should handle incidents involving alcohol and drug use. “If rider does not wish to escalate with LE (law enforcement) or media, follow strike system, issue warning, and resolve without escalating.” Under resolution suggestions, the screenshot showed that for the “1st strike,” customer service representatives were instructed to issue a “final warning,” and to permanently ban drivers at strike two.

Emails provided to BuzzFeed News show that Uber first reached out to Gallion’s driver by email at 1 p.m. the following day, about 12 hours after she reported him to the company for drunk driving. Unable to reach him over the phone (he was in jail), a company representative asked the driver when he was available discuss a “concerning report” by phone. When he checked his Uber app, he saw he had already lost access to the platform.

The next day, June 5, Uber conducted a brief interview during which Gallion’s driver was asked to review the details of the allegations against him. The driver told BuzzFeed News that he confirmed to Uber that he had indeed been arrested for driving under the influence. The following day he received an email notification from Uber saying he’d been deactivated and his “partnership” with the company ended. “They handled it quickly,” the driver said.

This isn’t the first time an Uber driver has been arrested for driving under the influence. That said, Uber notes that ride-hailing can be a wise alternative to driving after drinking. According to a study the company conducted with the nonprofit group Mothers Against Drunk Driving, Uber’s entry into a number of markets correlated with subsequent declines in DUI arrests.

Uber says it depends on riders to rate drivers and provide feedback, which its safety team reviews. “Uber may also deactivate a driver who receives several unconfirmed complaints of drug or alcohol use,” the ride-hail giant’s deactivation policy reads. The company told BuzzFeed it has a team of former law enforcement professionals on staff to help with police investigations. When BuzzFeed News asked if it has a system for learning about drivers’ law enforcement incidents instead of just relying on riders’ alerts, Uber said in some states background checks are “periodically” updated. Uber did not respond when asked if North Carolina is included among those states.

On Wednesday, Uber announced it is piloting app features aimed at making rides safer. In several markets across the U.S., drivers will receive daily reports on their braking, acceleration, and navigation. The goal, Uber told BuzzFeed, is to lay the groundwork to eventually create a system that gives the company real-time alerts about erratic drivers.

Source

Do I Have to Live with a DWI for the Rest of My Life?

Having a “driving while intoxicated” charge on your record could seriously hinder future endeavors. It may be hard to get a good job, an apartment or even a loan. Thankfully, drivers in Missouri often have the opportunity to have this charge expunged from their record. This means it will not show up on background checks. There are certain requirements that must be met, however.

Missouri state law has a specific statute regarding DWI expungement. It falls under the same category as misdemeanors and nonviolent felonies. In order to have the charge expunged, it must be the driver’s first — and only — alcohol-related driving offense. Similarly, you cannot have any alcohol-related driving charges pending. Second, you must have been charged with a misdemeanor, not a felony. The charge must also be at least 10 years old in order to be considered.

If the expungement is granted, the driver essentially gets to start over record-wise. The state essentially eliminates the charge as if it never happened. In some states, drivers must legally answer “Yes” if an application asks if they have ever been charged with a DWI or DUI. But in Missouri, you can truthfully answer “No.”

For someone who made one unwise mistake in their younger driving years, Missouri’s expungement laws are a boon. For drivers who are currently facing a misdemeanor or criminal charges for driving while intoxicated, it may be beneficial to contact a criminal law attorney immediately. They may be able to fight the courts on your behalf.

Source

Keeping New Year’s Eve DWI Free

a man holding a class of alcohol with car keys in hand. there is a clock turning midnight in the background

New Year’s Eve is the second most likely night for people to receive a DWI charge. Only Thanksgiving sees more DWIs than New Year’s, and the accident rates soar during this time of year, according to official sources. However, it is important to remember that DWIs can happen at any time, and the same rules for keeping New Year’s Eve safe and DWI free apply throughout the year as well.

A DWI conviction can have many life changing consequences including:

  • Having an arrest record
  • Incurring expensive fines
  • Serving jail time
  • Being placed on probation
  • Being required to install an ignition interlock device
  • Being forced to attend mandatory counseling or education classes

A DWI conviction has a serious impact on your life. It is much easier for you to avoid a DWI altogether than to deal with the consequences of such a charge.

What Can I Do To Avoid a DUI Charge?

There are no magic formulas to help you avoid a DWI. Common sense is the best weapon you have in the fight against a DWI charge, but sometimes a bit of knowledge about how the system works can also be beneficial. Here are some tips for avoiding DWI charges:

  • Designated drivers do not get DWIs. It is a simple fact that a designated driver who consumes no alcohol is the best defense against a DWI charge. It is also the best way for you and your friends to stay safe when you are out enjoying the evening. You could also arrange for a cab or other transportation.
  • The less said, the better. It is important not to talk too much to police officers when you are pulled over for any infraction. Police officers are trained to talk to you and get you to say things that can then be used as they build a case against you. While police officers are just doing their jobs, they are not your friends when you are pulled over and you should try to avoid talking to them too much, no matter how polite or nice they seem to be.
  • Call an attorney. If you are charged with DWI, an experienced DWI attorney is your best bet for reduction or dismissal of the charges.

Contact me,  Adam Woody, at The Law Office of Adam Woody if you are arrested or booked on DWI charges. I’m here to fight for you.

Source

DWI Field Sobriety Testing: Post 3 of 3 Post Series – One-Leg Stand Test

Over the past several months I have discussed in detail the various field sobriety tests that police officers utilize during their investigations of DWI’s.  Today is the final installment of the series with what is typically the final field sobriety test conducted roadside, the One-Leg Stand Test.  Obviously, standing on one foot for up to 30 seconds is rarely easy for anyone.  However, studies show that when the failure of this test is coupled with the Horizontal Gaze Nystagmus Test and the Walk and Turn Test, it can demonstrate with a high probability whether someone is too impaired to operate a motor vehicle safely.

On the One-Leg Stand Test (OLS), there is a possibility of four different potential indicators of impairment.  Like the Walk and Turn Test, the OLS is considered a divided attention test.  While the subject is standing on the foot of their choice, they are required to look at the other foot and count out loud until being told to stop.  This then pairs a physical task, standing on one foot, with a mental task, counting.  Although the combination of balancing, listening, and counting out loud does not seem very daunting to most, it can actual be quite difficult for someone who is impaired.

As with WAT, the OLS requires a surface that is dry, hard, level, and non-slippery.  If the subject is wearing heals that are over 2 inches in height, the officer must give them an opportunity to remove their shoes.  Studies have also suggested that individuals over 65 years of age, people with back, leg, or inner ear problems, and people who are 50 or more pounds overweight may have difficulty performing the test.  If the test is conducted on any of these individuals, their attorney should be able to discredit the officer for even continuing with the test once these issues are discovered.

The instruction phase of any of the sobriety tests are of critical importance in ensuring any level of accuracy.  On the OLS there are eight distinct instructions that must be given to the subject by the officer performing the test.  If instructed or demonstrated improperly by the officer, the results can be drastically compromised.  The following instructions must be given by the officer, and must be given from a safe distance:

1) Tell the suspect to stand straight, feet together and arms at their sides, and not to begin until instructed to do so, followed by “do you understand”;

2) Tell the suspect to raise one leg, either leg, approximately 6″ above and parallel with the ground (toe pointed out or down slightly), followed by a demonstration;

3) Tell the suspect to hold the elevated foot in this position and count in the following manner, one thousand and one, one thousand and two, one thousand and three, and so on until told to stop, followed by a demonstration;

4) Ask the suspect if he or she understands;

5) Tell the suspect that throughout the test, to remember to: a) watch the elevated foot; b) count like instructed; c) keep both arms at the sides; d) keep both legs straight; e) should you put your foot down, lift it back up and continue counting from where you left off;

6) Ask the suspect if he or she understands;

7) Ask the suspect if he or she feels like they can perform the test as explained;

8) Tell suspect to begin and check the time (Must be timed for 30 seconds)

If any of the above instruction are left off, the particular clue should not be counted by the officer or the Court, and it could serve to discredit the officer’s credibility.  Although there are  a total possibility of four potential indicators of impairment on this test, it takes two to fail.  The following are potential indicators of impairment, or “clues”:

1) Sways while balancing (side to side or back and forth motion while the subject maintains the OLS position. Slight tremors do not qualify);

2) Uses arms for balance (subject moves arms 6 inches or more from the side of the body in order to keep balance);

3) Hopping (subject is able to keep one foot off the ground, but resorts to hopping in order to maintain balance);

4) Puts foot down (the subject is not able to maintain the one leg stand position, putting the foot down one or more times during the 30 second count).

If two of the above indicators are present, it will be determined that the subject has failed the test, indicating the possibility of impairment.  Again, however, if any of the instructions are left out during the instruction phase by the officer, the validity of the entire test comes into question.  This is another test in which it is valuable to have it captured on video and audio from the car of the officer.  Whether it is or isn’t captured on the dashcam, it takes a skilled and experience criminal defense attorney to advocate for you at trial.  To effectively cross-examine the officer, attorneys must have a well-rounded knowledge of how DWI’s are investigated and must have a thorough understanding of the field sobriety tests.

This concludes my 3 part series on Field Sobriety Testing.  Once again, I hope the posts have been informative as I aim to put the public on a level playing field with police officers when requested to complete FST’s on the side of the road.  Don’t hesitate to contact my law office should you ever find yourself in the position of needing a skilled criminal defense attorney.

New Greene County “No Refusal Policy” in DWI Cases

As a DWI attorney the major question I get is, “if I’m pulled over and investigated for DWI, should I blow or refuse”.  I would always explain that for various reasons there is no cookie cutter answer and that all cases are different.  Typically, with everything being equal, I would usually advise to refuse the breathalyzer if there is any question in your mind whether you’ll blow over the presumptive legal limit of .08%.  Due to a recent change in policy in Greene County, however, for reasons I’ll explain, I pause before giving someone the advice to refuse the breathalyzer.

Missouri v. McNeely, 133 S.Ct.1552 (2013), is a fairly recent and hugely important case regarding blood draws in DWI cases.  In that case, the U.S. Supreme Court held that forcing a DWI suspect to submit to a blood draw without a warrant is unconstitutional.  However, the case left open the possibility for forcible blood draws as long as police officers get a warrant.  A person’s body is clearly protected under the Fourth Amendment, but as with any other type of evidence, if police can demonstrate that they have probable cause to believe evidence of a crime will be found, judges can sign warrants allowing an intrusion into the human body.  As communistic as it may sound, forcible blood draws are included.

Greene County has now instituted what they call a “no refusal policy”.  What this means is that any time the Springfield Police Department, the Greene County Sheriff’s Department, or the Missouri State Highway Patrol have a DWI suspect refuse to blow into a breathalyzer after a DWI arrest, the officer will fill out the paperwork requesting a warrant, submit the paperwork electronically to a judge, and will request an electronic signature.  Once a warrant is signed, police can then go to any means in order to extract blood from a suspect, even if it means strapping them to a gurney and forcing a needle into his or her arm.

Setting aside the numerous human decency and rights arguments, there are a few things that people need to be aware of before making the decision to refuse in Greene County.  Traditionally, if a person blows and the breath alcohol content is .08% or greater, they can request an administrative hearing with the Department of Revenue.  Typically, they would still lose their license for 30 days followed by 60 days of a hardship, and would have to jump through some hoops to get it back.  If a person would refuse to blow after arrested for DWI, in the scenario of a first offense, there were ways to keep that person from losing his or her license at all.  On a second or subsequent arrest in that situation, things got murkier and oftentimes the suspect would lose their license for one year, with eligibility for a hardship after 90 days.  An ignition interlock for the full year, plus an additional six months, was one of the hoops required before reinstatement.  Now, if someone refuses to blow and a warrant is obtained, not only are they looking at the refusal suspension, but depending on timing, they could also be looking at the administrative suspension, not to mention a possible point suspension if convicted of the criminal case.   The blood draw will be sent to the Missouri State Highway Patrol Crime Lab for analysis, then the results forwarded on to the Department of Revenue.  This process can often take several months, so the suspect could be almost finished with the first license suspension before the second and third suspensions even start.

There are cases, however, where this new policy could come back to bite law enforcement and prosecutors.  For example, if someone refuses to blow in cases where they would have been very close to .08%, once law enforcement goes to the trouble of getting a warrant (which can take up to an hour or longer) the alcohol may have very well dissipated and the BAC is then below .08% at the time it is tested.  This situation will put an even heavier burden on the state because by statute they will have to show “substantial evidence of impairment” if the BAC is below .08%, whereas if above the legal limit, a presumption of impairment is created.  With those who refuse, although no legal presumption is created, the law makes it clear that the refusal can be used as evidence of guilt by the judge or jury, thereby creating a presumption even if not specifically enumerated as such.  Therefore, in the actual prosecution of cases on the criminal side it is unlikely to help and may realistically hurt those that would have been strong cases without the blood draw.

Because of the above, to me, this is an unnecessary and burdensome step in an effort to gain public attention.  The procedure will do absolutely nothing to help prosecute DWI cases.  All it will do will be to punish hard working people who have perhaps made a poor decision, even if for the first time, to get behind the wheel after drinking, by suspending their licenses for longer and making it more difficult and costly to get reinstated.  It will add extra cost and time for law enforcement and for the judges who are up in the middle of the night to review and sign the warrants, for very little benefit in the courtroom.  It is much more a publicity stunt than a tool to combat DWI offenses, while dehumanizing those accused.  Time and money would more wisely be spent on giving the officers added education and knowledge in the science and investigation of DWI cases rather than wasting it on figuring out ways to legally invade the human body.

DWI Field Sobriety Testing: Post 2 of 3 Post Series – Walk and Turn Test

Back on July 7 I began a 3 post blog series regarding Standard Field Sobriety Testing in DWI cases. In Post 1 I discussed in detail the Horizontal Gaze Nystagmus Test, better known as “the eye test”. Today, I hope to provide details and information regarding the field sobriety test that should be administered by law enforcement directly following the HGN, the Walk and Turn Test, also known as the Heel to Toe Test. As indicated in Post 1, other than blood alcohol content evidence, the Field Sobriety Tests are what prosecutors, judges, and juries rely on in determining the guilt or innocence of those accused of driving while intoxicated. The Walk and Turn Test (WAT) is the first opportunity the investigating officer has during the field sobriety tests to observe whether there is actual physical impairment of a person’s balance and walking. Of course, during the initial contact phase of the investigation the officer is already looking for possible signs of impairment, but the WAT is the first sobriety test designed to detect physical impairment.

On the WAT there are a possibility of eight indicators of impairment. Many people claim that they cannot complete this test whether sober or intoxicated. However, evidence shows that exhibiting two out of eight clues indicates a 79% probability of that subject having a BAC over the presumed legal limit of .08%. Like the HGN, however, the test is only as accurate as the person (i.e. law enforcement officer) administering the test and only as accurate as the instructions that are given. This is why it is critically important to have an attorney in these cases who understands and knows the field sobriety testing protocol so that they can determine whether the officers administered the test appropriately and, if not, can adequately cross-examine the officer and bring those inaccuracies to the Court or jury’s attention.

The WAT test is a divided attention test. What this means is that it combines a physical and a mental task at the same time. Like all divided attention tests there are two stages: on the WAT there is an instructions stage and a balance and counting stage. Both stages are important as they can both affect a subject’s overall performance, but the instruction phase is given by the officer administering the test. It is critically important that the instructions are given properly, otherwise, the results cannot and should not be relied upon by the judge or the jury. Also in order to be relied upon with any sense of accuracy, the test must be conducted on a surface that is dry, hard, level, and non-slippery. Other factors that may play a role in the accuracy of this test is if the subject is 65 years of age or older, or is greater than 50 pounds overweight. Although these factors may affect people differently, they are something to consider and should be brought to the Court or jury’s attention if present.

To have any accuracy whatsoever, the instruction phase outlined in the officers training manual must be completely adhered to. There are sixteen distinct points of instruction that must be given prior to the subject performing the WAT test. If any instructions are left out, the results of the test are greatly compromised. The officer’s are taught to give the instructions from a safe distance from the subject. Then, the following instructions must be given:
1) Tell the suspect to place their left foot on a line (which can be an imaginary line, although an existing line such as a parking lot line is preferred) with the right foot in front, heel touching toe, keeping the arms at their sides. Demonstrate as they do it.
2) Tell the suspect not to begin the test until instructed to do so. Ask suspect if he or she understands.
3) Tell the suspect that he or she will be expected to take nine heel-to-toe steps down the line, make a turn in a prescribed manner, and return nine heel-to-toe steps back to the starting position. Tell the suspect that you will demonstrate.
4) Explain and demonstrate using three heel-to-toe steps.
5) Explain and demonstrate the turn procedure.
6) Explain and demonstrate three heel-to-toe steps for return.
7) Ask the suspect if he or she understands.
8) Tell the suspect to watch his or her feet at all times.
9) Tell suspect that he or she is to count each step out loud (so that you can hear him or her).
10) Tell suspect that he or she is to keep his or her arms at their sides at all times during the test.
11) Tell the suspect that he or she is not to stop the test once it has begun.
12) Instruct the suspect that if he or she steps off the line, to place their foot back on the line and continue walking in the heel-to-to fashion until the test is complete.
13) Ask the suspect if he or she understands the instructions for the test.
14) Ask the suspect if he or she feels they cannot perform the test as explained.
15) Tell the suspect that the first step from where he or she is currently standing is step one.
16) As the suspect if he or she has any physical disabilities that would not enable them to complete the test.
17) Tell the suspect to begin the test.

Once again, if any of these instructions are left out of the first phase by the officer, that particular instruction cannot be used as a clue, and the validity of the entire test can be called into question. During the test, the eight possible indicators of impairment that may be present are each included in the instructions. Although there are a total of 18 steps and a turn on the test, if an indicator of impairment occurs only one time it is considered a clue. That is what makes the walk and turn test such a difficult test for many people. There are numerous ways to exhibit an indicator of impairment and it seems even non-impaired people could show one or more of the indicators.

With the officer’s report that is presented to the prosecuting attorney after a DWI arrest is made is a separate report called the “alcohol influence report”. On the AIR there is a diagram of the WAT test, as well as nine separate boxes that can be check for each indicator. During the WAT, the investigating officer is looking for the following:
1) Fails to maintain heel-to-toe stance (this is during the instructions when the person has to keep right foot in front of their left foot while the instructions are given).
2) Starts before instructed to begin.
3) Stops while walking to steady self.
4) Does not touch heel-to-toe (misses by more than 1/2 inch).
5) Loses balance while walking (steps off line).
6) Uses arms for balance (raises arms more than 6 inches from side).
7) Loses balance while turning or made an improper turn.
8) Incorrect number of steps.
9) Cannot perform or refused to do the test.

If two or more of the above indicators are present the subject is considered to have failed the test and officers will testify on the witness stand that the failure of that test indicates a possibility that the subject was impaired. The prosecutor will then try to couple that failure with other indicators to prove their case beyond a reasonable doubt to the judge or jury. As with the HGN test, if the WAT is not recorded on an audio/video camera, it will be difficult to uncover whether an officer administered the test correctly by giving the correct instructions. However, it may be difficult for an officer to regurgitate every single instruction while on the witness stand as well. That is again why it takes a criminal defense attorney who is knowledgeable in field sobriety testing to effectively cross-examine highly trained and experienced police officers.

Within the next few weeks I plan to do the final post in the series, which will cover the One-Leg Stand. I certainly hope that my posts have been insightful and informative up to this point. My goal is not to try to thwart DWI investigations or to encourage drinking and driving at all. I am simply hoping to make you more aware of these tests should you find yourself being put through roadside testing. Perhaps then, the public will be on a level playing field with police if being investigated. Feel free to contact my office if any questions arise or if anything is unclear.

DWI Field Sobriety Testing: Post 1 of 3 Post Series – HGN (Eye) Test

Aside from blood alcohol tests, the most important evidence of impairment that police, prosecutors, judges, and juries rely on in driving while intoxicated cases are the results of the field sobriety tests. Most of these tests are difficult for most anyone to pass, whether sober or impaired. The key to successful defense against possible false accusations by police or prosecutors is to know and understand the tests before you decide to comply with the officer’s request and take them. Over the next few weeks, I am going to go into each of the three standard field sobriety tests in detail in an effort to provide the information and knowledge necessary so that people can be better prepared if encountered with a roadside test.

Of the three standardized field sobriety tests (SFST’s) that are routinely conducted in DWI cases, the one that is the least understood by the general public, judges, and prosecutors alike is the dreaded eye test, technically known as the Horizontal Gaze Nystagmus Test (HGN). It is by far the most scientific test of the three, and it can actually be the most reliable. However, if it is conducted improperly, the results can be severely compromised. Because of this, although the results can be very reliable to determine whether there is alcohol in the blood stream, the test is only as good as the person administering it.

Many people believe that when an officer is conducting the test of the eyes they are simply checking to see whether the subject’s head is moving or whether the subject can follow simple instructions. In reality, the officer is checking for “nystagmus” which is an involuntary jerking of the eye. There are several types of nystagmus, but only alcohol and a few other drugs actually cause horizontal gaze nystagmus. When under cross-examination by a skilled defense attorney most officers will not know the difference between HGN and other forms of nystagmus such as fatigue nystagmus, optokinetic nystagmus, or nystagmus caused by a previous head injury. Of course, if the trained police officer doesn’t know the difference, neither will the judge or jury. That is why it is important for the officers to be cross-examined on these details in order to impeach their credibility. If they don’t know whether what they are seeing is caused by alcohol or whether is it caused by something else, how can a judge or jury be convinced beyond a reasonable doubt?

During the test, the officer is looking for six potential clues of impairment. In each eye the officer is looking: 1) to see whether the eye moves smoothly from side to side or does it jerk noticeably (this portion of the test is known as lack of smooth pursuit); 2) whether the eye jerks distinctly when it moves as far to the side as possible and is kept there for a minimum of four seconds (this part of the test is known as distinct and sustained nystagmus at maximum deviation); and 3) whether the subject’s eye starts to jerk noticeably as it moves toward the side prior to it reaching a 45 degree angle (this is known as onset of nystagmus prior to 45 degrees). If all six of these clues are present, studies show that the test has a 77% accuracy rate at detecting subjects at or above a 0.10 BAC.

Although potentially 77% accurate, the test must be conducted precisely according to protocol. If not, the results are substantially compromised. When conducting a roadside field sobriety test, the officer’s patrol car is usually equipped with a dashcam that is recording the entire incident on both video and audio. Unfortunately for those who have been pulled over it is up to the individual officer to save the video as evidence. It is not unheard of to see an officer fail to do so because the video is often the only way that their performance in conducting the HGN can be impeached. Do not be afraid to ask the officer to save the dashcam video of the arrest. There is still nothing that requires the officer to do so, but it is worth asking because the evidence can be critically important.

In conducting the HGN, the following protocol must be followed:
The stimulus (finger, tip of pin, etc.) must be held approximately 12-15 inches from the tip of the subjects nose.
The officer must check to make sure that the eyes track equally, that the pupils are of equal size, and that there is no resting nystagmus. The presence of any of these things could mean there was a previous head injury by the subject or resting nystagmus could detect the presence of a disassociative drug such as PCP, which can be dangerous for the officer.

First Clue – Check for Smooth Pursuit – Check suspect’s left eye first. Begin from center of the nose to the maximum deviation in approximately 2 seconds. Then check the right eye by moving back across the subjects face to a maximum deviation at approximately a 4 second pace. Then go back to center approximately 2 seconds. You then must repeat the process always doing the test twice for each eye.

Second Clue – Check for Distinct and Sustained Nystagmus at Maximum Deviation – Check the left eye first. Eye must follow stimulus to maximum deviation (no white showing in corner of eye). Eye must be held in this position for at least 4 seconds in order for this clue to be scored. Check the right eye. Again, repeat in each eye.

Third Clue – Check for Angle of Onset Prior to 45 Degrees – Check the left eye first once again. The eye must follow the stimulus from the center of the suspect’s nose to near the edge of the suspect’s shoulder to a 45 degree angle, leaving some white showing in the corner of the eye, at approximately a 4 second pace. Check the right eye, and repeat the entire cycle again in each eye.

The final steps of the test includes checking for vertical gaze nystagmus, which is the same process as checking for smooth pursuit only up and down, and the last thing to do is to check for lack of convergence. Both VGN and lack of convergence are not clues to be scored during the HGN test, but could aid the officer in developing suspicion of either a high level of alcohol in the blood or other types of drugs as possible intoxicants. If each of the above steps are conducted appropriately, the test should take no less than 64 seconds and realistically probably longer for a good, accurate test.

Once again, if this test is conducted properly by the arresting officer it can be very solid evidence of the presence of alcohol in a person’s system. However, to uncover poor administration of the HGN, and any other FST, it takes a skilled criminal defense attorney who is knowledgeable in the area of DWI defense.

Over the next couple of weeks, posts 2 and 3 of the series will cover the Walk and Turn Test and the One-leg Stand Test. If anyone should have any questions or want any advice, don’t hesitate to contact our office. Until then, be safe and smart out there!

Breathalyzer Results in Missouri DWI Cases May be Thrown Out

All Driving While Intoxicated cases have two separate aspects: the administrative portion of the case and the criminal portion of the case.  As we all know, the breathalyzer result (BAC) can be an important part of DWI cases and can impact both the administrative and criminal aspects.  On the criminal side, state or city prosecutors will always attempt to get the BAC result into evidence if it is over .08%.  If admitted into evidence a legal presumption of impairment on behalf of the defendant is created, and the government is already well on it’s way to winning the case.  The state or city can of course prove it’s case with evidence other than the BAC, but if over .08%, that alone is very strong evidence of impairment and it makes their job much easier.  As far as the administrative side, the Department of Revenue is going to attempt to take a suspects driver’s license as a result of a BAC that is .08% or greater.  The administrative license suspension in that case would be for 90 days in the event of a first offense, and one year if it is a second offense within 5 years.

In order for the state and municipal prosecutor or the Department of Revenue to use a BAC result, very strict protocol must be followed by the agency that performs routine maintenance on the breathalyzer machines.  The police agencies themselves have a designated officer, known as a Type III, who maintains and calibrates the breathalyzers.  The Missouri Breath Test Program, as it is known to legislators and DWI practitioners, is governed by the Missouri Department of Health and Senior Services.  Specifically, the program is codified in the Code of State Regulations at 19 CSR 25-30.  In those regulations, the breathalyzer must be maintained once every 35 days and it must be tested against a standard simulator solution from approved suppliers.  Under 19 CSR 25-30.051, as it is now written, the standard simulator solution must have a vapor concentration of .10%, .08%, or .04%.  Since the beginning of the Breath Test Program, the agencies who maintain the machines have historically tested them against one of those vapor concentrations rather than all three.  However, on November 30, 2012 the regulations were changed to read that the machines must be tested against a standard simulator solution of .10%, .08%, and .04%.  On January 29 of this year, the “and” was quietly removed and replaced once again with “or”.

As most people know, in the legislative and legal world, the significance of the words “and” as well as “or” can not be understated.  In Missouri, there are approximately 30,000 DWI arrests per year.  In the vast majority of those arrests a BAC result is obtained.  From November 30, 2012 through January 29, 2014, it is safe to assume there were well over 30,000 DWI arrests.  It is also safe to assume that no agency anywhere in the state actually followed the Code of State Regulations as they were written during that time and tested the breathalyzers every 35 days against a solution of .10%, .08%, and .04%.  They most likely tested the machines against one of the three, but as one tiny three letter words makes clear, one test may not have been enough.  It may, however, be enough to get tens of thousands of BAC results thrown out of criminal prosecutions and administrative license suspension cases across the state.  It has already started in the St. Louis area, where an associate judge reinstated several license suspensions as a result of the mistake.  It will be interesting to see how it is handled in Greene County and Southwest, Missouri.  I, for one, am anxious to get the process started.  Stay tuned!