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Articles Posted in Field Sobriety testing

What happens when you attempt to take field sobriety tests and realize you cannot perform them and are charged with OUI in Massachusetts?

Often a defendant may say: “I can’t do this anymore,” and “I am too drunk to finish,” are some of the many comments made by defendants as they perform field sobriety tests after getting stopped by a police officer who suspects they are operating under the influence.

Statements like these, made during the field sobriety tests, can be used against you as evidence in a court room. In the case Commonwealth vs. Brown, decided June 20th 2013, the Court ruled that statements made during field sobriety tests are not considered compulsory or testimonial statements and are not protected by Article 12.

The Massachusetts State Police rely heavily upon OUI sobriety checkpoints throughout the year, saying that they are an effective screening tool to keep drunk drivers off the road. light.jpg

However, most Massachusetts OUI attorneys realize that these methods are not infallible, and just because troopers may make a high number of arrests doesn’t mean they will automatically become convictions. In fact, many OUI arrests made at sobriety checkpoints can be successfully challenged in court because the procedures to which these agencies need to adhere are strict, and there are many ways for them to slip up.

Still, somewhere between 70 and 80 checkpoints are set up each year in the state, according to the Taunton Gazette. These are used in conjunction with regular patrols, as well as saturation patrols, which are when officers are assigned to patrol a particular problem area or at a specific time in great numbers.

In determining where a checkpoint will be positioned, law enforcement will chart its crash data and areas that have a higher-than-average OUI arrest count.

But simply doing that is not enough to keep these operations legal.

To start, law enforcement agencies must publicize the fact that they will be having a checkpoint in advance. They don’t have to say where it will be, but they do have to let the public know when one will be held in the jurisdiction.

Once the checkpoint is set up, cars will be stopped at a fixed point, where drivers will be met by “greeters.” These are troopers that will engage the driver in a brief discussion. It is during time that the troopers will try to determine whether you are intoxicated. The key word here is “brief.” If there is evidence that the state police prolonged that initial conversation in order to continue to figure out whether the driver is drunk, there’s a good chance an OUI defense attorney will be able to successfully challenge resultant charges.

Also during this time, troopers will attempt to get you to admit that you’ve been drinking. They may word it in a way that is confusing or simply demand to know how much you’ve had to drink. Don’t fall for it.

From here, the stop can go one of two ways. Either you’ll be sent on your way, or if troopers believe they have enough reason to warrant further examination, you will be sent over to a marked area. If at this point there is any evidence of racial profiling or that you have been stopped and flagged for any other reason than suspected intoxication, there’s a good chance your attorney can fight any subsequent charges.

Once you are in the marked area, you will be met by other troopers who will talk to you, observe you – probably again try to get you to admit you’ve been drinking – and then ask you to undergo a field sobriety test. You do not have to submit to this test, but understand you will probably be arrested if you don’t. However, if you know you are intoxicated, it may be best not to give them additional evidence.

The problem with field sobriety tests is they are completely subjective and don’t meet the legal standard for proving someone is drunk. They are simply a tool that officers use, but when used collectively with other evidence, can be harmful to your case.

If from there officers determine you are intoxicated, you will be taken to a bus to be booked, processed and transported to the police station.

State police point to the fact that the legality of these operations has been repeatedly upheld in court. This is true, but the strict rules that law enforcement must abide by provide you with ample room to fight your arrest.
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The Record in New Jersey is reporting that a police chief has come under fire for earning $30,000 in overtime in two years for DUI enforcement operations.

As the Massachusetts DUI Attorney Blog recently reported, OUI roadblocks have little value in actually catching drunk drivers. In fact, police view the purpose as a way to keep drunken driving in the minds of drivers. Yet, they cost tens of thousands of dollars — provided by state and federal grants typically — to operate. 1174747_by_a_beer.jpg

And a big chunk of that money goes to pay police officers overtime so they can stand around and watch passing cars. Police officers are just like any other worker when they are working a job. They want it to go by quickly and they want to get paid.

When officers set up operations to target OUI in Taunton or elsewhere in Massachusetts, they are looking for common traffic violations, such as speeding, swerving, improper lane change, stopping and starting or other ways to initiate a traffic stop. During a checkpoint, no such probable cause is necessary.

When a driver is stopped by officers, they should remain calm and answer the questions politely. If you believe you are being investigated for OUI, don’t make any statements and tell them you wish to speak with a Taunton OUI lawyer immediately. Everyone has a right to not say anything if they are suspected of a crime.

According to the news article, the police chief in Elmwood Park New Jersey earned about $30,000 in overtime that payroll records show was paid out for drunken-driving operations.

Between Jan. 1, 2010 and Oct. 6, the chief got $29,436 on top of his $205,000 annual salary. Officials are investigating whether the chief was entitled to get that pay and if other department heads also got overtime pay.

The newspaper reports that the chief’s contract has no provision for overtime pay, while other police officers’ contracts clearly outline when they should be paid overtime and at what rate.

The chief told city council recently that he supervised OUI posts, making sure roadblocks were in the proper place and that procedures were followed. These roadblocks are typically covered by state or federal grants. Yet, police chiefs and other officials typically are salaried and can’t earn overtime pay.

While city officials are investigating, it seems on the surface like a bad deal for taxpayers. A chief of a town of 19,000 with a small force of only 37 gets $200,000 per year. And on top of that, he’s bringing in thousands in overtime?

And his excuse is that he had to supervise OUI roadblocks, which have little value anyway?

OUI roadblocks are typically set up in an area near bars or where patrons would drink and then later drive. Officers will usually set up barriers to funnel traffic so they can stop each vehicle and question each driver.

Their goal is to see if people are intoxicated — or might (in the opinion of the officer) be intoxicated. Some people get pulled over and others just get to drive through and there typically is no reason why some drivers are put through this process and others get to go by. The decision is made by officers working the post.

In most situations, very few drivers are actually arrested. Most pass through and go on their way, yet police departments nationwide are spending millions of dollars on these operations with few results.
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In this series of Blogs, I have attempted to describe all aspects of a Massachusetts drunk driving charge and how the case will be defended by a Massachusetts DUI lawyer. Prior blogs, have addressed the HGN test, nine step walk and turn, one leg stand test and nonstandard field sobriety tests. This post will address the driving factors and observations that the officer is looking for and how these can be used to form your defense. This is the final post in this series.

A critical part of defending your case will involve the reasons why the officer stopped your car. If there was no dangerous or erratic driving, you already have the framework for a strong defense of your case. The reason is that the purpose of the field sobriety tests is to determine your ability to drive safely and if there is no erratic driving than your driving itself provides part of the proof that you were not under the influence of alcohol.

What are some of the clues that a police officer looks for regarding the driving that will be used to demonstrate you were under the influence of alcohol:

The National Highway Traffic Safety Administrations lists the driving clues that officer may find. I have attached a link to a police field sobriety testing training manual.

Of significance regarding this list, is that speeding is not a sign that a motorist is under the influence of alcohol.

Here are a list of the driving clues:

  • weaving
  • straddling a lane line
  • turning with a wide radius
  • drifting
  • almost striking a vehicle or object
  • stopping problems, too far, too short, or jerking
  • accelerating or decelerating rapidly
  • driving too slow
  • slow response to traffic signals

I generally break up the driving between the initial observations of the officer and the driving once the police officer puts on the blue lights. Police officers are trained to think of these two incidents as separate driving sequences.

The officer’s training when the blue lights go on is referred to as the stop sequence. The officer is taught to view this as an important point during the encounter to determine whether a motorist is under the influence of alcohol. The signal to stop divides a motorist’s attention between paying attention to the blue lights to stop and pulling over safely. The idea is that the signal to stop divides a driver’s attention. The field sobriety tests, like the nine step walk and turn and one leg stand are designed to achieve a similar purpose of dividing a driver’s attention. Even though the officer may claim you failed field sobriety tests, the driving itself is evidence of good mental ability and good coordination skills necessary for driving.

Accordingly, when a police report reads that a driver pulled over immediately after the blue lights go on, an effective cross examination by a Massachusetts DUI attorney will emphasize that this demonstrates that the motorist was not under the influence of alcohol. To listen to a further explanation of this defense, click here for a video explaining how this idea is used at trial.
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In defending charges of DUI in Massachusetts, one of the field sobriety tests that appears frequently in police reports and causes the most confusion for people arrested for drunk driving is the Horizontal Gaze and nystagmus field sobriety test, sometimes referred to by those arrested as the pen test.

It is understandable why this test causes some much confusion because it does not appear to have an scientific basis or reliability. You are on the side of the road, cars going by, and the officer is waiving a pen quickly in front of your face. If you stopped and asked most officers what they are looking for, many probably could not correctly explain the correct procedure in administering the test.

Fortunately, the HGN test is typically not admitted into evidence at a Massachusetts DUI trial as a result of the decision of the Massachusetts Supreme Judicial Court in Commonwealth v. Sands. The HGN test can be admitted; however most prosecutors do not attempt to admit the test into evidence.

In some cases, I have used the HGN test to discredit the officer and demonstrate that the investigation was not properly conducted, so what are the signs that someone exhibits nystagmus.

The first clue that the officer looks for is lack of smooth pursuit. The officer is suppose to start with the pen in the center and move it to the left, taking two seconds out and two seconds back for a complete pass and following the same procedure for the right eye. The idea is that the officer is looking to detect any involuntary jerking of the eye, called nystagmus of which alcohol is one of many causes. Click here to read about court decisions regarding the HGN test.

The second clue is referred to as distinct and sustained nystagmus at maximum deviation. For this clue, the officer is suppose to move the pen until the eye has gone as far to the side as possible. The officer is then required to hold the pen in this position for a minimum of four seconds and observe to determine if there is an involuntary jerking of the eye. In many cases, the officer does not recall that the correct administration of this part of the test requires that the pen be held for four seconds at maximum deviation.

The final clue on the HGN test is called onset of nystagmus prior to 45 degrees. The officer is suppose to start with the stimulus in the middle and move it toward the right shoulder at a speed that would take four seconds to reach the edge of the left shoulder. In many cases, when officer perform this test, they are rapidly moving the stimulus contrary to the clear instruction of the police training manual.

With this clue, the officer is looking to see if there is any involuntary jerking of the eye prior to 45 degrees and is suppose to hold the stimulus to verify that it continues.

Although this test is rarely used in Massachusetts, according to the National Highway Traffic Safety Administration Study, the HGN test is the most accurate of the field sobriety tests at 77% reliable, as compared to 68% for the nine step walk and turn and 65% for the one leg stand. The head Police officer for the Massachusetts State police who speaks occasionally at drunk driving seminars for lawyers has repeatedly indicated his confidence in the reliability of the test. I have had an officer testify that he has never had a suspect fail the HGN test who was under the legal limit. During that hearing, the officer demonstrated how he conducts the test and did it in a very rapid fashion contrary to the careful and deliberate process outlined in the police manual.
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This is Massachusetts DUI lawyer, Michael DelSignore Second blog on field sobriety testing as part of a five part blog series that will be published on this Blog.

The One Leg Stand field sobriety test is the most difficult test given by the police because many people cannot perform this test even if no alcohol is consumed. Accordingly, the idea that failure on this test means someone is under the influence of alcohol is flawed from the start. Even when given under ideal conditions, the test is only 65% reliable according to the studies regarding this exercise. I have attached a link to a field sobriety test student manual used by police officers.

The One Leg stand has the following clues that the officer is suppose to observe:

  • Sways while balancing
  • Using arms for balance
  • Hopping
  • Puts foot down

If a person exhibits two or more clues, that is considered a failure. Though not listed as clues, an experienced Massachusetts OUI attorney will also point out other factors showing good mental ability and coordination.

Like the nine step walk and turn, the one leg stand has an instruction phase. Accordingly, when a person maintains balance during the instruction phase, and starts the test at the appropriate time, those factors showing that the motorist can follow instructions demonstrating, a normal mental ability. Typically, there is no mention of any difficulty maintaining balance during the instruction phase. The idea behind this test is to stress for the jury that the motorist had normal balance other than when required to perform the difficult exercise of balancing on one leg.

While the test requires someone to balance until the count of 30, most jurors probably would consider the test as successfully completed with someone who balances for a much shorter period of time. Further, the inaccuracies of the scoring can be pointed out as typically the officer will not put the details in the report that justified the conclusion. One of the clues on the one leg stand is that a person cannot use their arms for balance; however, the training of the officer states that the arms have to be more than six inches from the body. In many cases the details of how someone performed are missing from the police report.

If you read your police report and see that the officer found you failed the one leg stand, your case can still be won. In almost all cases, the police will claim that a motorist failed field sobriety tests. The one leg stand is the most difficult exercise to perform; even the police training manual, states that some people cannot perform the test, including someone over 50 pounds overweight or over the age of 65. As a result, the officer would have to admit that the test is easier for someone younger and in shape, then for someone older, who has been working throughout their life and may have physical injuries. In fact, the early versions of the police training manual stated that some people could not perform the one leg stand test even without consuming any alcohol; this language has since been removed from the manual.

Techniques to minimize the one leg stand at trial:

  • Point out that the motorist had no trouble with balance when on two feet, listening to the instruction to the one leg stand, no trouble with balance getting out of the car, did not stumble when walking on the nine step walk and turn, and had no difficulty with balance during booking.
  • Stress that this is a physical fitness test and is one size fits all, the officer gives the same test to a college student as a carpenter who has spent years working doing manual labor. The older person, with physical aliments, is disadvantaged from the start.
  • underscore that even the Government study indicates that the test is only 65% reliable, under perfect conditions. A 35% failure rate should raise a reasonable doubt.

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