Cheating the Breathalyzer: Urban Legends

In fear of failing a breathalyzer test, many people over the years have tried and failed to successfully discover a means of being able to cheat the test. Many urban legends exist as to how one can actually consume a level of alcohol which is over the legal limit yet still pass a breathalyzer test when stopped by the cops. However, no matter how believable these “success stories” may sound, you can bet that they are actually false.

A common misconception is if the alcohol cannot be smelled from your breath, then you will not fail a breathalyzer test. This had led to people drinking alcohol which left a minimal odour on your breath or chewing gum or mints to hide the smell of alcohol in the belief that would pass should they be pulled over for a breathalyzer test. Unfortunately, the smell of alcohol on your breath will do nothing to affect the results of the test. A breathalyser will still be able to discover your blood alcohol content.

Similarly, if you think a mouthful of mouth wash or some breath spray will do the trick, think again. Most mouthwashes and breath sprays actually contain levels of alcohol so essentially, all that you will be doing is further adding to the level of alcohol in your system. Another common urban legend involves sticking pennies or one cent coins under the tongue to try and cheat a breathalyzer test. The general thought beyond this claim is that the copper in the pennies or coins can somehow counteract the presence of alcohol. This however is completely false – and in fact, U.S. one cent coins are actually largely made of zinc. In truth, you are probably just putting yourself at risk of choking on coins or absorbing dangerously high levels of zinc!

There have also been many bizarre stories about how one can successfully cheat a breathalyzer test by stuffing crazy things in your mouth. Do not even bother putting yourself through the embarassment and hassle of doing such a thing because you will undoubtedly still fail the test. Although you might provide a source of amusement for your arresting police officers! Despite what people may think, stopping off for some fast food and a coffee will not affect the results of the test either. It may satisfy your intense hunger or thirst but absorbing food or drink will not lower your breath alcohol levels.

Finally, holding your breath before taking the test or belching into the device are also believed to be “successful” ways of cheating a breathalyser test. Unfortunately guys, this is merely an urban myth. By holding your breath before the test, you could actually be even allowing further amounts of alcohol to enter your lungs which can result in a higher reading.

Do you know what the only truly successful way of a cheating a breathalyzer test is? Abstaining from alcohol before driving! Do not ever try to “guess” if you are over the legal alcohol limit to drive. If you intend on having a drink, you need to bring a personal breathalyser with you to test yourself before deciding whether to drive home. If your reading is over the limit, it is time to start flagging down a cab.

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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.

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Driving Under the Influence of… Caffeine?

California Man Fights DUI Charge for Driving Under Influence of Caffeine
coffee beans spilled around a coffee cup with the chemistry symbol for caffeine in the cup

 

San Francisco, CA. Dec. 24 – Caffeine may be the “nootropic” brain drug of choice in Silicon Valley, but an hour’s drive north in Solano County, California, the stimulant could get you charged with driving under the influence.

That is according to defense attorney Stacey Barrett, speaking on behalf of her client, Joseph Schwab. After being pulled over on 5 August 2015, Schwab was charged by the Solano County district attorney with misdemeanor driving under the influence of a drug.

Almost 18 months later, Schwab is preparing to go to trial. The only evidence the DA has provided of his intoxication is a blood test showing the presence of caffeine.

Schwab was driving home from work when he was pulled over by an agent from the California department of alcoholic beverage control, who was driving an unmarked vehicle. The agent said Schwab had cut her off and was driving erratically.

The 36-year-old union glazier was given a breathalyzer test which showed a 0.00% blood alcohol level, his attorney said. He was booked into county jail and had his blood drawn, but the resulting toxicology report came back negative for benzodiazepines, cocaine, opiates, THC, carisoprodol (a muscle relaxant), methamphetamine/MDMA, oxycodone, and zolpidem…

“It’s really stupid,” said Jeffrey Zehnder, a forensic toxicologist who frequently testifies in court cases. Over 41 years, Zehnder said, he had never seen a prosecution for driving under the influence of caffeine…

California vehicle code defines a “drug” as any substance besides alcohol that could affect a person in a manner that would “impair, to an appreciable degree” his ability to drive normally.

Making that case with caffeine would be difficult, Zehnder said, because the prosecutor would have to show that impaired driving was specifically caused by the caffeine and not any other circumstances.

“There are no studies that demonstrate that driving is impaired by caffeine, and they don’t do the studies, because no one cares about caffeine,” he said.

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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.

Weapons Offenses – Guns in Schools

Just last week a student at Central High School in Springfield, Missouri was arrested for possessing a firearm on school grounds after a gun was accidentally discharged from his backpack as he was passing it to another student.  Springfield criminal defense attorney Adam Woody was interviewed on the local CBS affiliate, KOLR10, regarding the potential legal consequences of possessing a gun on school grounds.

Even though the student is a teenager, he is apparently 17 years old.  In Missouri, 17 is the technical age of adulthood to be tried in adult court.  What this young man is facing is the class D felony of Unlawful Use of a Weapon.   Although the statute is long a convoluted, one of the ways in which a person commits this crime is if he or she carries a gun or other weapon readily capable of lethal use into a school, onto a school bus, or onto the premises of any function or activity sponsored by school officials.  If the weapon is an unloaded gun, the offense is a class A misdemeanor which carries maximum penalties of up to a $1,000 fine or up to one year on the county jail.  If the weapon is a loaded gun, however, the offense is a class D felony, which carries up to a $5,000 fine and/or up to four years in the state Department of Corrections.

With the seemingly recent rise in school violence, local authorities are sure to take this action quite seriously.  The local media will no doubt continue to keep the public well advised as to what happens to the young defendant in this case.  Stay tuned for further information and interviews from Adam Woody.

As always, if you have any questions regarding criminal law, do not hesitate to contact Adam Woody by phone or e-mail, adam@adamwoody.com.

Excessive Force By Police

In light of the recent events in Ferguson, Missouri where an unarmed 18 year old man was gunned down by police, it is important that we stop and remember that there are ways to combat excessive force by police. When race is involved, it is obviously a polarizing issue. Media and news outlets from across the nation have weighed in on the Ferguson Police shooting. I was recently interviewed by our local ABC affiliate to discuss the potential ramifications of police brutality or excessive force.

Realistically, any time there is an officer involved shooting there is a potential of three different things happening: An internal investigation by the police department, a criminal investigation by the police department or an outside agency, and a civil lawsuit against the officer and/or the department.
Internal Investigation – This is an investigation done by the police department that employs the officer involved in the shooting. Typically the officer is placed on paid administrative leave while the investigation is conducted. The point of this investigation is to determine what disciplinary action, if any, the officer should face for the shooting. The most severe thing that can happen here is that the officer can lose his or her job. However, the department could also determine that the officer’s actions were justified, leading to no discipline whatsoever.
Criminal Investigation – There is the possibility that either the department that employs the officer involved in the shooting or an outside agency could conduct a criminal investigation to determine if criminal charges should be sent to the prosecuting attorney against the officer involved in the shooting. In my opinion, it is a terrible idea, not to mention a deep conflict of interest, for the police agency that employs the officer to conduct the criminal investigation. It is much safer and reduces the appearance of impropriety if an outside agency conducts any criminal investigation. Much like in the Ferguson shooting case, rather than the Ferguson Police Department investigating the case, the FBI has stepped in to investigate. Once the investigation is complete, the case file will likely be turned over the the prosecuting attorney to determine if there is any criminal liability on the part of the officer. If it is decided that there are grounds for charges, which would include a criminal mental state by the officer, it is up to the prosecutor on what charges to file. Those can range from misdemeanor assault all the way up to various degrees of murder. Oftentimes, however, the shooting will be determined justified and no criminal charges are filed. If criminal charges are filed, the burden is on the prosecutor to be able to prove them beyond a reasonable doubt at trial.
Civil Rights Lawsuit – The last possible outcome of a police involved shooting is for the victim or victim’s family to file a civil rights lawsuit alleging that the police officer violated the victim’s civil rights. There is a provision of the United States Code, 42 U.S.C. Section 1983, which allows for such a lawsuit. The lawsuit will usually name the officer involved in the shooting, as well as the police department that employs he or she. Any time a police officer touches a civilian, even if it is with an object, or even a bullet in the most severe instances, legally speaking a seizure has occurred. As the Fourth Amendment to the U.S. Constitution states, all citizens are presumed free from unlawful searches and seizures. Therefore, when it is alleged that the Fourth Amendment has been violated, a 1983 action can be filed. It is then up to the officer or the department to justify the actions of the officer and to demonstrate that the actions were lawful. As has been reported, the family in the Ferguson, Missouri case has hired the same attorney from Florida who Trayvon Martin’s family has hired. It is anticipated that a civil case against Ferguson PD and the officer is imminent. Once a civil 1983 action has been filed, it is up to the victim or his family to prove the allegation by a preponderance of the evidence to the jury, which basically means that the force used by the officer was more likely than not excessive under the circumstances.

Although these types of cases are polarizing and can sometimes grip a nation, it is best to let the various legal processes play out. It is not time to jump to conclusions either way, rather, it is time to let the investigators investigate and to simply observe as the legal chess match subsequently ensues. It is no doubt going to be a long process, and surely emotions that lead to criminal behavior such as rioting, burglary, and damaging people’s property cannot run this high for long.

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.

Castle Doctrine – Adam Woody on Self-Defense in Missouri

Adam Woody was featured on the Springfield, Mo. CBS affiliate KOLR10 to discuss the “castle doctrine”.

The “castle doctrine” is essentially the legal right that everyone has in Missouri to defend themselves or another person when someone comes into their home unlawfully.  The use of force in that situation can be deadly force if the person using force reasonably believes it is necessary to prevent imminent harm.  The “castle doctrine” does not just extend to a person’s home.  It can include a vehicle, a hotel room, and essentially anywhere else that person has a lawful right to be.  Historically Missouri was a “retreat state”, which means that even if someone was in their own home at the time of unlawful entry by another person, the home owner was required to do everything he or she could to remove him or herself from the situation before using force.  That changed in 2010, and the “castle doctrine” was passed into law.  Now, deadly force can be used any time someone unlawfully enters a home or vehicle.  RSMo. Section 563.031 is where the “castle doctrine” can be found in the Missouri Statutes.

Unfortunately, this is a hot topic in and around the Springfield area where home invasions are becoming more common.  There have been several home invasion shootings over the past several weeks, and when you read a headline such as this, the homeowner is going to be justified under the “castle doctrine” just about every time.  This is basically a form of self-defense, however, the aggressor does not have to be using force that is reasonable under the circumstances.  Deadly force by a home owner can be justified just about any time a person is entering a home unlawfully no matter what that person’s intentions.  Perhaps the “castle doctrine” will lead to fewer home invasions, or perhaps it will simply lead to more shootings and deaths.  Only time will tell.

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!

Attorneys for Craig Michael Wood Want Statements Thrown Out

Last week a flurry of attention was again brought on the accused killer of Hailey Owens, Craig Michael Wood.  This time, it was because his attorneys have now filed a Motion to Suppress his statements to police.  Motions to Suppress are frequently filed and are essentially asking the court not to consider certain pieces of evidence in reaching their conclusion, or to keep certain pieces of evidence from being presented to a jury.  Wood’s attorneys are asking for such relief, in part, because of what they believe is a violation of his Miranda Rights.  What many people do not understand is that Miranda does not apply to every single arrest.  Most people believe that immediately when a person is arrested, they must be given their Miranda warnings by police.  That’s not actually true.  Miranda only applies when there is a custodial interrogation.  What this means is that if someone has been arrested, they must be given their Miranda warnings only before police begin to ask them incriminating questions.  If police are simply arresting someone and transporting them to jail, Miranda is not required.  Then, if the suspect makes unsolicited incriminating statements, those statements are admissible in Court.

Attorney Adam Woody was asked by the local CBS and ABC affiliates, KOLR10 and KSPR, to provide insight into the legal basis and motivation for filing Motions to Suppress statements. This case has gained regional and national attention as well, as Adam was featured on a telecast on KCTV5 in Kansas City.  This case is no doubt polarizing  and the facts are everyone’s worst nightmare, but Wood’s attorneys and the prosecutors on the case alike are doing everything they can to ensure that justice is served for everyone involved.