If I am stopped and investigated for DUI, should I submit to Field Sobriety Evaluations? (Part 5)

Finally, to answer the $1,000,000.00 question, should you take field sobriety evaluations if you have been stopped and asked to do so. 

 

First, Field Sobriety Evaluations ARE VOLUNTARY.  You are not required to take them; however, officers are not required to tell you that they are voluntary.  Generally, in an investigative situation, an officer will just begin instructing you to do things but will not let you know your participation is not required unless you inquire. 

 

Second, as indicated in my previous posts, there is a lot of subjective interpretation involved in field sobriety evaluations.  Most of what an officer observes on the side of the road cannot be seen on a video (if there is one).  Therefore, as attorneys, we are left with the officers observations when assessing your case and what manifestations are exhibited on video (if there is one).

 

Finally, field sobriety evaluations, overall, can be affected by external variables that have nothing to do with impairment.  Unfortunately, it is very difficult for anyone to tell whether the “clues” exhibited on any of the tests (other than the HGN evaluation when performed properly) were caused by impairment or something unrelated all together.  Therefore, it is my opinion that field sobriety evaluations do nothing to help your cause.  However, it is your decision and YOU are the only one encountering that decision at that time.  It is like I always say, whatever decision you made at the time was the decision you made, we will deal with it.  Honestly, it has been my experience on many occasions where field sobriety evaluations have helped me exonerate my client; however, remember every case is different as are peoples individual circumstances.

 

Whether you took fields or not, if you have been charged with a DUI, there is always a chance.  Give our office a call and let us help you. 

 

(770) 945-2320 

Non-Standardized evaluations used by Standard Officers. (Part 4)

In Part 4 of our Field Sobriety Posts, we discuss other evaluations that DUI suspects may be subjected to during an investigation.  These evaluations are not standardized or approved through NHTSA and generally are only as effective as the officer is at conveying his/her interpretations to the jury.  However, these are done with increased frequency and often have an impact on how cases are evaluated.

 

A list of these evaluations and explanation of how they work are:

 

  1. Alphabet Test
    1. Officer instructs a suspect to say the alphabet from one letter to another (ex: from E to U)
    2. Suspect is asked not to sing the letters
    3. Officer notes whether letters are transposed, omitted, or sung.
    4. Suggests that an individual can’t do a basic fundamental task due to impairment
  2. Rhomberg Evaluation
    1. Officer asks a suspect to put their hands to their side, tilt their head back, close their eyes, estimate the passage of 30 seconds, and once 30 seconds has passed, tilt their head forward and open their eyes.
    2. Officer is watching the subjects gait and getting a gauge on their internal clock.
    3. If there is a noticeable sway or tremors, this might suggest impairment
    4. A fast internal clock (estimates 30 seconds in 15 seconds time) could suggest the use of a stimulant while a slow internal clock could suggest a depressant.
  3. Finger to Nose
    1. Subject asked to tilt head back and extend arms out to their side and bend their arms to touch their finger tip to their nose.
    2. Measures major and fine motor skills
  4. Finger Tip Touch
    1. Subject is asked to touch their thumb to their first, second, third and fourth finger in sequence, and then in reverse order.  They are asked to count out loud and not to stop until told to do so.
    2. Measures fine motor skills and simple counting
  5. Preliminary Breath Test (PBT)
    1. A breath testing device that is utilized on the side of the road.  Although an officer sees a BrAC number, the only thing that is admissible in court is testimony of “positive” or “negative” for alcohol. 

 

Again, none of these evaluations are certified through NHTSA; however, they are commonly used.  With the right defense, they can be easily discredited.  Therefore, if you have been arrested for DUI and would like a thorough case evaluation, do not hesitate to contact our office.

 

(770) 945-2320

The Walk and Turn and One Leg Stand Evaluations: How they work and how they don’t (Part 3)

In this, Part 3 of our Field Sobriety Posts, we will discuss the Walk and Turn and One Leg Stand Evaluations.  These are the second and third evaluations that officers use on the roadside and both are classified as a divided attention test.  NHTSA has determined that divided attention tests are a good measure of driving ability because when operating a motor vehicle, you are required to pay attention to many things.  For example, if you were driving down I85, you have to pay attention to your speed, the cars in front of you, the cars behind you, the cars beside you, the speed of traffic, what’s on the radio, who you may be talking to in the car with you, etc…you get the point!  Your attention is divided between many different things. 

 

Both of these evaluations are designed to simulate this attention division.  For instance, in the walk and turn evaluation, a subject is instructed in the following manner:

 

  1. Imagine a line from where you are standing to (a designated point). 
  2. Place your left foot on that line and place your right foot in front of your left foot with your heel touching your toe.
  3. Remain in that position until I tell you to begin.
  4. When I tell you to begin, I want you to take 9 heel to toe steps down that imaginary line (officer demonstrates), when you reach the 9th step, leave your left foot on that line, take a series of small steps around your left foot back to the line and take 9 heel to toe steps back (officer demonstrates). 
  5. When you begin walking, dont stop walking until you are finished, keep your hands to your side, look at your feet while walking and count your steps out loud. 
  6. You may begin when you are ready

 

As you can tell, there is a lot to think about during this entire evaluation.  Failure to do things as you are instructed results in a “clue.”  For the Walk and Turn evaluation there are 8 possible clues and for the One Leg Stand there are 4 possible clues that can be exhibited.  The more clues shown by a subject, the more an officer can discern impairment.  When explained and demonstrated accurately, NHTSA has found that the Walk and Turn and One Leg Stand evaluations are 68% and 65% accurate, respectively. 

 

Unlike the HGN evaluation, these are not scientific.  They can be impacted by a multitude of things.  A persons balance and vestibular issues, environmental conditions (extreme wind or cold), weight, or age can have an impact on how they perform the evaluations.  Officers are trained to take those things into consideration when making decisions out on the side of the road; however, it is rare that they are identified and not attributed to impairment. 

 

If you have been arrested for a DUI and asked to perform these evaluations, do not hesitate to contact our office for a full case review to determine what defenses you may have to the charges.

 

(770) 945-2320

The HGN Evaluation: How it works and how it doesn’t (Part 2)

The Horizontal Gaze Nystagmus (HGN) Evaluation is the first of the three standardized field sobriety evaluations discussed in the first blog of this series.  It is generally regarded as the most accurate and effective evaluation so long as it is done by a qualified, well versed officer.  This blog will discuss the HGN Evaluation; how it works, and how defense attorneys can attack it.

 

The HGN Evaluation is the only “scientific” evaluation.  When performed correctly, what you see is what you get.  There are no external variables that can impact the evaluation.  If clues are present, with very few exceptions, impairment can be interpreted (even a blood alcohol concentration (BAC)) with extreme accuracy. 

 

Nystagmus is an involuntary jerking of the eye.  What an officer is looking for is the eyes bouncing when tracking left to right at different points and angles.  It will pick up any Central Nervous System (CNS) depressant (alcohol and some prescription drugs). 

 

The evaluation is divided up into three phases (which I have renamed for explanation purposes): 

 

  1. (Medical) Clearance Phase
  2. Testing Phase
  3. Tolerance Phase

 

During the first phase, the officer determines whether the subject is qualified to participate in the evaluation.  During this phase, the officer swipes a stimulus (finger or pen) horizontally across the line of sight of a driver.  The subject is told to keep his head still and move only his eyes.  During this phase, the officer is looking for resting nystagmus (eyes moving erratically without movement side to side while tracking a stimulus), equal pupil size, and that both eyes move to follow the stimulus.  If the officer fails to see resting nystagmus, sees equal pupil size and equal eye tracking, the subject is clear to perform the evaluation.  If the officer does not, this may suggest a medical condition, head injury or other issue that would prevent the officer from moving forward. 

 

Assuming that the officer medically qualifies the participant, he/she will move on to the validated portion of the evaluation.  There are three validated portions. 

 

  1. Lack of Smooth Pursuit
  2. Distinct and Sustained Nystagums at Maximum Deviation
  3. Onset of Nystagmus Prior to 45 Degrees

 

Generally, there are two clues for each portion of the evaluation; one clue for each eye for a total of 6 possible clues.  Each portion of the evaluation has very stringent timing requirements for how quick the passes are made to the left and right; how long the stimulus can be held in a particular area; and how far the stimulus can be held from the subject.  The more clues you see going through the first, second, and third portions, the more impaired the subject is.  Assuming that the officer does everything properly, NHTSA has determined that the HGN evaluation is 77% accurate in distinguishing BAC’s above .10.  There are a select group of people called Drug Recognition Experts who go through a 6 month training regimen that can utilize this evaluation to fairly accurately tell what a person’s BAC is simply by observing where the nystagmus happens in the field of travel.  This is called Tharps Theorem, which is 50 – (angle of onset).   Therefore, if the DRE estimates the angle of onset at 35 degrees, 50-35=15. Therefore the subjects BAC should be near a .15. This is a very advanced procedure and is rarely allowed into evidence. 

 

Finally, the last portion is not HGN, it is actually Vertical Gaze Nystagmus (VGN) where the officer moves the stimulus up and down instead of left and right.  This is not a validated portion of the evaluation; however, if the officer sees VGN, it suggests that the substance ingested is a high amount for that particular individual.  Obviously, that will vary from person to person which is why I call this the Tolerance Phase. 

 

 Although a very powerful tool in the officers “bag”, HGN can be attacked by an attorney effectively if the attorney knows what he/she is looking for.  As mentioned above, if the officer doesn’t follow the timing requirements or other standardized protocol designated by NHTSA, the officer’s own manual says that the results are “compromised.”  It’s possible to have the results of the evaluation thrown out or even use the officers lack of proficiency in that one evaluation to “compromise his/her entire investigation. Our office has been heavily involved in officer training on DUI Detection and Enforcement as prosecutors and we are also Standardized Field Sobriety Trained.  We can identify these issues and develop effective arguments to attack the results of the HGN evaluation. 

 

If you have been charged with a DUI, call our office immediately for a consultation.

 

(770) 945-2320

What are Standardized Field Sobriety Tests? (Part 1)

You may have watched the videos on YouTube, you may have heard about it from your friends, and some of you have been exposed to them personally; but, if you ever become the target of a DUI investigation, you will likely be exposed to what are called Standardized Field Sobriety Evaluations.  In this bog, we look at what these evaluations are.

 

The short story is: field sobriety evaluations were developed over a number of years and have been employed as tools utilized by law enforcement officers to determine if an individual is safe to operate a motor vehicle after consuming alcohol or drugs.  As lay people, we have seen the finger to nose evaluation, seen people recite the alphabet, watched people walk a line, and seen subjects stand on one leg.  There are many types of evaluations used by law enforcement in the normal discharge of their duties; however, there are only three evaluations that have been standardized by the Nation Highway Traffic Safety Administration (NHTSA) and verified to be accurate and effective when utilized properly.  Those three evaluations are:

 

  1. The Horizontal Gaze Nystagmus (HGN) Evaluation
  2. The Walk and Turn Evaluation
  3. The One Leg Stand Evaluation

 

Other evaluations are taught in Standardized Field Sobriety Courses; however, the above three are the only ones that have verifiable data suggesting their accuracy.  Their name tells you everything you need to know about them.  They are Standardized, meaning that they must be administrated in the exact same way every single time.  They are performed in the FIELD, meaning that elements regarding the environment may change which can have an impact on the evaluations and should be taken into consideration when formulating an opinion.  They aid and assist an officer in determining the SOBRIETY level of a subject.  Finally, they are EVALUATIONS, not tests; meaning they are not pass or fail, they are simply graded on a scale.  Obviously, depending on where you fall on that scale, an officer may use that information to opine that you are under the influence to the extent you are less safe to drive.

 

Each evaluation has its own separate components, distinct characteristics, as well as positive and negative aspects that lends to its effectiveness.  Officers are taught these evaluations over a period of four days, eight hours a day, for a total of 24 hours of training.  There is a classroom component and live participant component.  Both must be passed to receive a certification.

 

In the next five blogs, I will cover the following topics:

 

  1. The HGN Evaluation: How it works and how it doesn’t
  2. The Walk and Turn and One Leg Stand Evaluations: How they work and how they don’t
  3. Non-Standardized evaluations used by Standard Officers.
  4. If I am stopped and investigated for DUI, should I submit to Field Sobriety Evaluations?

 

If you have been stopped for DUI and submitted to any of the above evaluations, contact an attorney that has a practice focused on DUI Detection and Enforcement.  An office like ours can conduct a comprehensive review of your case to determine where mistakes were made. 

 

(770) 945-2320

What if I am stopped for a DUI?

Being an attorney that has a practice heavily focused on DUI defense, I am often asked in social settings: “What should I do if I am stopped and investigated for DUI.”

 

The answers people get to these questions from defense attorneys vary greatly.  My first response when I am asked this always begins with, “First, you shouldn’t be drinking and driving.”  However, the reality is, there is no law in the State of Georgia that makes it illegal to drink and drive.  It is only illegal to drink and drive if, due to the alcohol you consumed, you are “less safe” to operate your motor vehicle. 

 

Therefore, when I get asked the question posed above, I don’t think it is prudent to answer the question with an advisory opinion, it is better that people understand the repercussions of the decisions that they have available to them on the side of the road and make a decision given their threshold for potential ramifications.

 

The three decisions that must be made if you are the subject of a DUI investigation are:

 

  1. Take field sobriety tests or not.
  2. Take the State requested breath/blood test or not.
  3. Ask for an independent test or not.

 

Standardized field sobriety evaluations (more info about these evaluations will be discussed in a future blog) are tools that an officer can use to help him/her determine if the subject of their investigation is under the influence of alcohol or drugs.  Many things can affect the results obtained on these evaluations (environmental, personal, officer proficiency, and subjective interpretation).  If an individual submits to these evaluations, the officer will use all the factors of the encounter in making an arrest decision, including the field sobriety evaluations.  If these fields are refused by the subject, the officer will be forced to make his/her determination off the limited contact that has occurred, including but not limited to, any physical manifestations of impairment exhibited by the driver. How much information you feel comfortable giving the officer is what dictates this decision.

 

Once you are under arrest, you will be asked to submit to a test of your blood, breath, urine, or other bodily substance.  If you refuse this test, the officer can file paperwork to start the suspension of your license prior to you even going to court.  If you take the test, that test will be offered into evidence against you in court. 

 

Whether you have a right to ask for an independent test is determined by whether you took the State’s test.  You have no right to your own test if you have refused to take the State requested test.  However, if you did take the State’s test, there is no downside to asking for your own independent test other than those results coming back consistent with the State’s test.  If that happens it leaves less arguments to be made that the State’s test must be wrong.

 

Ultimately, I tell people that whatever decision you make at the time of your encounter; that is the right decision.  It is very hard to advise people as to what they should do.  Only you know how much you had to drink, only you know how coordinated you are, only you know if there are other factors that would impact your ability to perform tests, and every officer has different proficiency levels with DUI detection and enforcement. 

 

Therefore, I say again, it is best not to drink and drive.  However, if you do/did, and you are facing a DUI charge, contact our office immediately so that we can assist you in this difficult time. 

How a DUI can affect your license/privilege to drive

            As an attorney who specializes in the practice of DUI Defense, I often get the question: “What happens to my driver’s license if I am convicted of a DUI?”  The reality is there is no quick and fast answer to that question.  Many factors come into play including but not limited to:

1)     Age of the offender

2)     Number of prior offenses within a specified time period

3)     Whether a test was taken or refused

4)     If taken, what the results of that test were

5)     The specific code section under which you have been charged

 

In this article, I will attempt to shed some light on the license implications of having a DUI on your record, both before and after your case goes to court.  By no means is this article intended to be exhaustive of all potential driving privilege ramifications; however, I will provide a good guide for most drivers and some attorneys.

 

Before Court

 

            The first question I will ask a person charged with a DUI whom calls into the office is, “Do you still have your driver’s license?”  In most circumstances, if a person charged with a DUI does not have their license, the officer or deputy has taken it and given the driver a DPS 1205 form.  A DPS 1205 form looks like the one to the right.  It may be white or yellow, depending on the department.

 

A person can be issued this form for four distinct reasons:

1)     The driver refused to submit to the state mandated test by the officer.

2)     The driver took a breath test and registered .08 grams or higher on the Intoxilizer 5000.

3)     The driver was under the age of 21, took a breath test, and registered .02 grams or higher on the Intoxilizer 5000.

4)     The driver was operating a commercial vehicle, took a breath test, and registered .04 grams or higher on the Intoxilizer 5000.

 

It is within the officer’s discretion to seize your license and issue you a DPS 1205 form if you fall within one of the categories listed above.  Therefore, not all people who register over a .08, for example, will be given one of these forms. 

           

If you have been given one of these forms, you have 10 business days from your date of arrest to file an appeal with the Administrative License Suspension Hearing Unit.  An attorney can help you draft this letter and send the appropriate fees.  At our office, this is included in your representation.  If you fail to file a request for an appeal within the designated time period, 30 days from your date of arrest, your license may be suspended for a period of one year.  The length of that suspension and whether you can get a “work/hardship” permit depends on which of the four categories you fell into.  You would need to contact our office if you feel that your license has been suspended due to a failure to file a request for a hearing.  We may be able to help you get back on the road.

 

After Court

 

            If you plead guilty or are convicted of DUI, your age and the code section under which you were charged, among other things, has an impact on the length of your suspension and whether a permit is available.  The chart below is a good guide for all the subsections of the DUI statute; O.C.G.A. § 40-6-391:

 

 

Code Section O.C.G.A §

 

 

Length of Suspension

 

Permit?

40-6-391 (a) (1)

“Less Safe” – No Refusal

  • 12 month suspension in accordance with O.C.G.A. § 40-5-63 (a) (1)
  • Following 120 days, and upon the completion of a DUI Risk Reduction Program, license can be reinstated at the discretion of DDS

Yes – subject to the conditions of O.C.G.A. § 40-5-63 (a) (1)

40-6-391 (a) (1)

“Less Safe” – Refusal

  • 12 month suspension in accordance with O.C.G.A. § 40-5-63 (a) (1)

No – pursuant to O.C.G.A. § 404-5-67.2 which explicitly excludes an offender from a permit under O.C.G.A. § 40-5-64

40-5-391 (a) (2)

Drugs “Less Safe” or “Per Se”

  • 180 day suspension pursuant to O.C.G.A. § 40-5-75 (a) (1)

No – pursuant to O.C.G.A. § 40-5-75 (e)

40-6-391 (a) (3)

Intoxicants “Less Safe” – No Refusal

  • 12 month suspension in accordance with O.C.G.A. § 40-5-63 (a) (1)
  • Following 120 days, and upon the completion of a DUI Risk Reduction Program, license can be reinstated at the discretion of DDS

Yes – subject to the conditions of O.C.G.A. § 40-5-63 (a) (1)

40-6-391 (a) (3)

Intoxicants “Less Safe” –Refusal

  • 12 month suspension in accordance with O.C.G.A. § 40-5-63 (a) (1)

No – pursuant to O.C.G.A. § 404-5-67.2 which explicitly excludes an offender from a permit under O.C.G.A. § 40-5-64

40-5-391 (a) (4)

Drugs and Alcohol Combined

  • 180 day suspension pursuant to O.C.G.A. § 40-5-75 (a) (1)

No – pursuant to O.C.G.A. § 40-5-75 (e)

40-6-391 (a) (5) [>.08]

Alcohol “Per Se”

  • 12 month suspension in accordance with O.C.G.A. § 40-5-63 (a) (1)
  • Following 120 days, and upon the completion of a DUI Risk Reduction Program, license can be reinstated at the discretion of DDS

Yes – subject to the conditions of O.C.G.A. § 40-5-63 (a) (1)

40-6-391 (a) (6)

Marijuana****

  • Found Unconstitutional

N/A

40-6-391 (i)

Commercial Vehicle

  • 12 month suspension in accordance with O.C.G.A. § 40-5-63 (a) (1)
  • Following 120 days, and upon the completion of a DUI Risk Reduction Program, license can be reinstated at the discretion of DDS; however, may possibly be a lifetime disqualification of the individuals CDL

Yes – subject to the conditions of O.C.G.A. § 40-5-63 (a) (1)

40-6-391 (k) (1)

Under 21

  • If alcohol concentration was .08 grams or more, 12 month suspension in accordance with O.C.G.A. § 40-5-57.1 (b) (2) (B) (ii)
  • If alcohol concentration was .079 grams or less, 6 month suspension in accordance with O.C.G.A. § 40-5-57 (b) (1) (B) (i)

No – pursuant to O.C.G.A. § 40-5-57.1 (b) (2) (B)

****DUI Marijuana cases are being prosecuted under O.C.G.A. § 40-6-391 (a) (2) which is a 6 month suspension with no permit available.

 

            Finally, the number of convictions an individual has within a 5 year period has an impact on the length of suspension and whether a permit is available.  Many factors come into play with regards to this; therefore, you should contact our office if this is not your first offense.  Generally, if you are convicted of multiple offenses within a five year period, you will lose your license for a minimum period of one year and you will not be allowed a permit to drive for work or other approved purposes.  A new exception now exists for certain individuals.  This is something that we can discuss with you once we have all the facts.  

 

            It should also be stressed that licensing implications, although difficult to decipher through the Georgia Code, are not the only implications of a DUI.  Jail time, loss of job, effects on insurance, and other collateral consequences are just as impactful and very likely.  It is extremely important you contact an attorney if you have been charged with a DUI offense.  Make sure that the person you hire is experience in these types of cases and knows the law. 

 

If you are currently facing a DUI charge in the State of Georgia, do not hesitate to contact our office.