In California you begin by being charged with Driving Under the Influence. Depending on the facts of the case, your goal is to get the DUI case reduced down to a lesser offense. The most important aspect of getting your DUI case reduced is whether or not the reduced charge is priorable in the future as a DUI. A DUI and Wet Reckless will be looked at in the future as prior convictions to enhance the punishment should you get another DUI or Wet Reckless. A Dry Reckless or an Exhibition of Speed charge is not priorable as a DUI and is what you should aim for in terms of reducing your DUI case
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First DUI
Offense
California Vehicle
Code §23536
a. If any person is
convicted of a first violation of Section 23152, that person shall be punished by
imprisonment in the county jail for not less than 96 hours, at least 48 hours
of which shall be continuous, nor more than six months and by a fine of not
less than three hundred ninety dollars ($390), nor more than one thousand
dollars ($1,000).
b. The court shall order
that any person punished under subdivision (a), who is to be punished by
imprisonment in the county jail, be imprisoned on days other than days of
regular employment of the person, as determined by the court. If the court
determines that 48 hours of continuous imprisonment would interfere with the
person' s work schedule, the court shall allow the person to serve the
imprisonment whenever the person is normally scheduled for time off from work.
The court may make this determination based upon a representation from the
defendant's attorney or upon an affidavit or testimony from the defendant.
c. Except as provided in
paragraph (2) of subdivision (a) of Section 23538, the person's privilege to operate a
motor vehicle shall be suspended by the Department of Motor
Vehicles pursuant to paragraph (1) of subdivision (a) of Section 13352. The
court shall require the person to surrender the driver's license to the court
in accordance with Section 13550.
California Vehicle
Code §23538
Conditions of Probation for First Time Offense
Except as provided in
subdivision (d), if the court grants probation to any person punished under Section
23536, in addition to the provisions of Section 23600 and any other terms and conditions
imposed by the court, the court shall impose as a condition of probation that
the person be subject to one of the following:
- Be confined in the county jail for at least 48
hours but not more than six months, and pay a fine of at least three
hundred ninety dollars ($390), but not more than one thousand dollars
($1,000). Except as provided in paragraph (2), the person's privilege to
operate a motor vehicle shall be suspended by the Department of Motor
Vehicles pursuant to paragraph (1) of subdivision (a) of Section 13352. The court shall require the
person to surrender the driver's license to the court in accordance with Section
13550.
- Pay a fine of at least three hundred ninety
dollars ($390) but not more than one thousand dollars ($1,000), and, if
the person gives proof of financial responsibility, as defined in Section 16430, to the Department of Motor
Vehicles, have the privilege to operate a motor vehicle restricted for
90 days to necessary travel to and from that person's place of employment
and to and from participation in a program described in subdivision (b).
If driving a motor vehicle is necessary to perform the duties of the
person's employment, the restriction also shall allow the person to drive
to locations within the person's scope of employment. Whenever the driving
privilege is restricted pursuant to this paragraph, the person shall
maintain proof of financial responsibility for three years.
- If the court elects to order a 90-day
restriction as provided for in paragraph (2), the court shall order and
advise the person of the following matters:
a. If the person's
privilege to operate a motor vehicle is suspended under Section 13353.2, the court-ordered restriction does
not allow the person to operate a motor vehicle unless the suspension under Section
13353.2 has either been served to completion or set aside, and his or her
license has been reinstated. The restriction of the driver's license described
in paragraph (2) shall commence upon the reinstatement of the privilege to
operate a motor vehicle.
b. If a suspension was
not imposed pursuant to Section 13353.2, the person shall be advised by the
court that the person's driving privilege may be suspended by the department
pursuant to subdivision (c) of Section 13352.4 until proof of financial
responsibility is provided. (b) In any county where the board of supervisors
has approved, and the State Department of
Alcohol and Drug Programs has licensed, a program or programs described in
Section 11837.3 of the Health and Safety Code, the court shall also
impose as a condition of probation that the driver shall enroll and participate
in, and successfully complete a driving-under-the-influence program, licensed
pursuant to Section 11836 of the Health and Safety Code, in the driver's county
of residence or employment, as designated by the court.
- The court shall refer a
first offender whose blood-alcohol concentration was less than
0.20 percent, by weight, to participate for at least three months or
longer, as ordered by the court, in a licensed program that consists of
at least 30 hours of program activities, including those education,
group counseling, and individual interview sessions described in Chapter
9 (commencing with Section 11836) of Part 2 of Division 10.5 of the
Health and Safety Code.
- The court shall refer a
first offender whose blood-alcohol concentration was 0.20 percent or
more, by weight, or who refused to take a chemical test, to participate
for at least six months or longer, as ordered by the court, in a
licensed program that consists of at least 45 hours of program
activities, including those education, group counseling, and individual
interview sessions described in Chapter 9 (commencing with Section
11836) of Part 2 of Division 10.5 of the Health and Safety Code.
- The court shall advise the
person at the time of sentencing that the driving privilege shall not be
restored until the person has provided proof satisfactory to the
Department of Motor Vehicles of successful completion of a
driving-under-the-influence program licensed pursuant to Section 11836
of the Health and Safety Code.
c.
- The court shall revoke the
person's probation pursuant to Section 23602, except for good cause shown,
for the failure to enroll in, participate in, or complete a program
specified in subdivision (b).
- The court, in establishing
reporting requirements, shall consult with the county alcohol program
administrator. The county alcohol program administrator shall coordinate
the reporting requirements with the department and with the State
Department of Alcohol and Drug Programs. That reporting shall ensure
that all persons who, after being ordered to attend and complete a
program, may be identified for either
A. failure to enroll in,
or failure to successfully complete, the program, or
B. successful completion
of the program as ordered.
d. Notwithstanding
subdivision (a), if the offense occurred in a vehicle requiring a driver with a
class A or class B driver's license or with an endorsement specified in Section 15278, the court shall upon conviction order
the department to suspend the driver's privilege pursuant to paragraph (1) of
subdivision (a) of Section 13352.
Second DUI
Offense
California Vehicle
Code §23540
a. Punishment If any
person is convicted of a violation of Section 23152 and the offense occurred within seven
years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, which resulted in a conviction, that person
shall be punished by imprisonment in the county jail for not less than 90 days
nor more than one year and by a fine of not less than three hundred ninety
dollars ($390) nor more than one thousand dollars ($1,000).
b. The person's privilege
to operate a motor vehicle shall be suspended by the Department of Motor Vehicles pursuant
to paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to
surrender the driver's license to the court in accordance with Section 13550.
California Vehicle
Code §23542
Conditions of Probation for Second Time Offense
If the court grants
probation to any person punished under Section 23540, in addition to the
provisions of Section 23600 and any other terms and
conditions imposed by the court, the court shall impose as conditions of
probation that the person be subject to either subdivision (a) or (b), as
follows:
a. Be confined in the
county jail for at least 10 days but not more than one year, and pay a fine of
at least three hundred ninety dollars ($390), but not more than one thousand
dollars ($1,000). The person's privilege to operate a motor vehicle shall be
suspended by the Department of Motor Vehicles pursuant to paragraph (3) of
subdivision (a) of Section 13352. The court shall require the person to
surrender the driver's license to the court in accordance with Section 13550.
b. All of the following:
- Be confined in the county
jail for at least 96 hours, but not more than one year. A sentence of 96
hours of confinement shall be served in two increments consisting of a
continuous 48 hours each. The two 48-hour increments may be served
nonconsecutively.
- Pay a fine of at least three
hundred ninety dollars ($390), but not more than one thousand dollars
($1,000).
- Have the privilege to
operate a motor vehicle be restricted by the Department of Motor Vehicles
pursuant to Section 13352.5. Until all
conditions prescribed in this section are met, the person's driving privilege
is suspended pursuant to paragraph (3) of subdivision (a) of Section
13352. This paragraph does not apply if the offense occurred in a vehicle
requiring a driver with a class A or class B driver's license or with an
endorsement prescribed in Section 15278.
- Either of the following:
A. Enroll and
participate, for at least 18 months subsequent to the date of the underlying
violation and in a manner satisfactory to the court, in a
driving-under-the-influence program licensed pursuant to Section 11836 of the
Health and Safety Code, as designated by the court. The person shall complete
the entire program subsequent to, and shall not be given any credit for any program
activities completed prior to, the date of the current violation. The program
shall provide for persons who cannot afford the program fee pursuant to
paragraph (2) of subdivision (b) of Section 11837.4 of the Health and Safety
Code in order to enable those persons to participate.
B. Enroll and
participate, for at least 30 months subsequent to the date of the underlying
violation and in a manner satisfactory to the court, in a
driving-under-the-influence program licensed pursuant to Section 11836 of the Health
and Safety Code. The person shall complete the entire program subsequent to,
and shall not be given any credit for any program activities completed prior
to, the date of the current violation.
c. The court shall advise
the person at the time of sentencing that the driving privilege shall not be
restored until the person has provided proof satisfactory to the Department of
Motor Vehicles of successful completion of a driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety Code.
PUNISHMENT
FOR A THIRD DUI OFFENSE
Third DUI
Offense
California Vehicle
Code §23546
Conviction of Third Violation of §23152; Punishment:
a. If any person is
convicted of a violation of Section 23152 and the offense occurred within seven
years of two separate violations of Section 23103, as specified in Section 23103.5, 23152, or 23153,
or any combination thereof, which resulted in convictions, that person shall be
punished by imprisonment in the county jail for not less than 120 days nor more
than one year and by a fine of not less than three hundred ninety dollars
($390) nor more than one thousand dollars ($1,000). The person's privilege to
operate a motor vehicle shall be revoked by the Department of Motor
Vehicles as required in paragraph (5) of subdivision (a) of Section 13352. The court shall require the person to
surrender his or her driver's license to the court in accordance with Section 13550.
b. Any person convicted
of a violation of Section 23152 punishable under this section shall be
designated as a habitual traffic offender for a period of three years,
subsequent to the conviction. The person shall be advised of this designation
pursuant to subdivision (b) of Section 13350.
California Vehicle
Code §23548
Conditions of Probation for Third Time Offense
a. If the court grants
probation to any person punished under Section 23546, in addition to the
provisions of Section 23600 and any other terms and
conditions imposed by the court, the court shall impose as conditions of
probation that the person be confined in the county jail for at least 120 days
but not more than one year and pay a fine of at least three hundred ninety
dollars ($390) but not more than one thousand dollars ($1,000). The person's
privilege to operate a motor vehicle shall be revoked by the Department of
Motor Vehicles pursuant to paragraph (5) of subdivision (a) of Section
13352. The court shall require the person to surrender the driver's license
to the court in accordance with Section 13550.
b. In addition to
subdivision (a), if the court grants probation to any person punished under Section
23546, the court may order as a condition of probation that the person
participate, for at least 30 months subsequent to the underlying conviction and
in a manner satisfactory to the court, in a driving-under-the-influence
program licensed pursuant to Section 11836 of the Health and Safety Code. In
lieu of the minimum term of imprisonment specified in subdivision (a), the
court shall impose as a condition of probation under this subdivision that the
person be confined in the county jail for at least 30 days but not more than
one year. The court shall not order the treatment prescribed by this
subdivision unless the person makes a specific request and shows good cause for
the order, whether or not the person has previously completed a treatment
program pursuant to paragraph (4) of subdivision (b) of Section 23542 or paragraph (4) of subdivision
(b) of Section 23562. A person ordered to
treatment pursuant to this subdivision shall apply to the court or to a board
of review, as designated by the court, at the conclusion of the program to
obtain the court's order of satisfaction. Only upon the granting of that order
of satisfaction by the court may the program issue its certificate of
successful completion and report the completion to the Department of Motor
Vehicles. A failure to obtain an order of satisfaction at the conclusion of the
driving-under-the-influence program is a violation of probation. In
order to enable all required persons to participate, each person shall pay the
program costs commensurate with the person's ability to pay as determined
pursuant to Section 11837.4 of the Health and Safety Code. No condition of
probation required pursuant to this subdivision is a basis for reducing any
other probation requirement in this section or Section 23600 or for
avoiding the mandatory license revocation provisions of paragraph (5) of
subdivision (a) of Section 13352.
c. In addition to the
provisions of Section 23600 and subdivision (a), if the court grants
probation to any person punished under Section 23546 who has not
previously completed a treatment program pursuant to paragraph (4) of
subdivision (b) of Section 23542 or paragraph (4) of subdivision (b) of Section
23562, and unless the person is ordered to participate in and complete a
driving-under-the-influence program under subdivision (b), the court shall
impose as a condition of probation that the person, subsequent to the date of
the current violation, enroll and participate, for at least 18 months and in a
manner satisfactory to the court, in a driving-under-the-influence program
licensed pursuant to Section 11836 of the Health and Safety Code, as designated
by the court. The person shall complete the entire program subsequent to, and
shall not be given any credit for program activities completed prior to, the
date of the current violation. Any person who has previously completed a
12-month or 18-month program licensed pursuant to Section 11836 of the Health
and Safety Code shall not be eligible for referral pursuant to this subdivision
unless a 30-month licensed driving-under-the-influence program is not available
for referral in the county of the person's residence or employment. The program
shall provide for persons who cannot afford the program fee pursuant to
paragraph (2) of subdivision (b) of Section 11837.4 of the Health and Safety
Code in order to enable those persons to participate. No condition of probation
required pursuant to this subdivision is a basis for reducing any other
probation requirement in this section or Section 23600 or for avoiding the
mandatory license revocation provisions of paragraph (5) of subdivision (a) of Section
13352.
Standardized
Field Sobriety Testing
Standards for the
Standardized Field Sobriety Testing (SFST) Program Psychophysical tests should
require evaluation of the subject's appearance and condition, ability to follow
instructions, as well as balance and coordination. These types of tests are
called Divided Attention Tests. They require the subject to concentrate on more
than one thing at a time. They divide the subject's attention between mental
and physical tasks. Studies have shown that a person who is under the
influence of an alcoholic beverage may be able to perform one of these
tasks but rarely both. If under the influence of an alcoholic beverage, people
are likely to make certain predictable errors while attempting these tasks.
Since the mid 1970's, the National Highway Traffic
Safety Administration (NHTSA), with the cooperation and assistance of the
law enforcement community, has conducted research that resulted in the
development of a battery of three standardized field sobriety tests (Horizontal
Gaze Nystagmus, Walk and Turn and the One Leg Stand) to assist police officers
in detecting impaired drivers.
The program, which was
previously termed the Improved Sobriety Testing, was validated in laboratory
and field studies conducted by the Southern California Research Institute.
These tests were initially developed by the Los Angeles Police Department
Training in how to conduct the tests is included in the NHTSA course "DWI
Detection and Standardized Field Sobriety Testing." In 1986, the Advisory
Committee on Highway Safety of the International Association of Chiefs of
Police (IACP) passed a resolution which recommended that law enforcement agencies
adopt and implement the field sobriety testing program developed by NHTSA. As
the program has grown, it has become apparent that in order to insure continued
success, nationally accepted standards must be established. These standards
which establish criteria for the selection and training of SFST practitioners
would help insure the continued high level of success of the SFST program. In
1992, the IACP Highway Safety Committee recommended the development of this
system of nationally accepted standards. In April of 1992, the IACP and NHTSA
sponsored a meeting at the headquarters of IACP in Arlington,Virginia. Persons
invited to this meeting included SFST instructors from several states,
curriculum specialists and training administrators. The participants met in working
groups to reach a consensus concerning the many issues relating to the SFST
program and to develop recommended minimum standards to the IACP Advisory
Committee on Highway Safety. The standards were drafted and presented to the
committee for their review at the mid-year meeting in June 1992.
The Advisory Committee on
Highway Safety by resolution adopted the National Standards for the SFST
Program. (The Standards were subsequently approved by voting membership of the
IACP). In order to maintain credibility and integrity of the program, agencies
that use a training program other than that is currently approved by the IACP
must have the alternative curriculum approved by the IACP Advisory Committee on
Highway Safety as meeting the required learning objectives. This is supported
by the National Highway Traffic Safety Administration.
Presently, SFST Training
must be 16 hours in length and include at least two controlled drinking
sessions utilizing volunteer drinkers. This is accordance with section 1.2 of
the Standards For Training In Standardized Field Sobriety Testing. In section
1.4 in order to satisfactorily complete the classroom portion of the training,
SFST candidates must complete the IACP-approved final examination with a score
of not less than eighty percent. Candidates scoring less than 80% on the final
may be retested one time under the supervision of a SFST instructor. The retest
shall be completed not less than 15 nor more than 30 days following the
completion of the classroom training. The examination used shall not have been
administered to the candidate previously. If the candidate does not achieve a
passing score on reexamination, the candidate must retake the classroom portion
of the training and pass the final examination. In section III it is recommended
that each agency develop refresher or in service training, as needed, to ensure
that SFST trained personnel maintain their proficiency in the administration of
their total DUI/DWI enforcement program.
The U.S. D.O.T. requires
35 practice tests within a six month period. A refusal can not be considered a
practice test as the evaluation of the suspect must be corroborated by a blood
alcohol reading. The officer is trained to conduct the HGN test last during his
practice test period and not to formulate an opinion based on the results or
use it for probable cause to arrest. They are told not to document the test due
to this.
At no time may a person
that is tested be used more than once on a practice test. As a result of this
it is necessary to review the documentation of the practice tests in order to
determine if the practitioner was properly recommended for certification.
Generally there are three
"tests" which are administered on scene.
These tests are:
- Walk
and Turn
- One
Leg Stand
- Horizontal
Gaze Nystagmus
Walk &
Turn Test
In order to perform this DUI
test it is required that it be performed on a hard, dry, level,
non-slipping surface with sufficient room for the suspect to complete nine
heel-to-toe steps. This test loses some validity when conducted in certain
wind/weather conditions that counters this criteria. The manual calls for a
straight line, which must be clearly visible on the surface but in the DWI
course it is taught that the test can be performed parallel to the curb.
Conditions must be such that the suspect would be in no danger if he or she
were to fall.
There are some people
that this test should not be given to because even the average sober person
would have difficulty with this test. People more than sixty five years of age
or over fifty pounds overweight, or with any physical impairment that would
affect their ability to balance should not be given this test. The officer is
trained to take this into account when developing their probable cause to
arrest. Individuals wearing heels more than two inches high should be given the
opportunity to remove their shoes as this may diminish the validity of the
results. Individuals who can not see out of one eye may also have trouble with
this test because of poor depth perception and should not be given this test.
The Walk and Turn test is
an objective test based upon certain predictable errors that a person under
the influence will display,as well as scoring factors that will give the
officer a basis for passing and failing other than their subjective opinion.
In order to properly
administer this test it is important to understand what type of test this is.
It is commonly referred to as a Divided Attention Test because it divides the
suspect's attention between mental and physical tasks. The physical tasks
include balance and coordination while the mental tasks include comprehension
of verbal instructions, processing of information and recall of memory. While a
person may be able to perform one task they may not be able to perform the
other if under the influence of an alcoholic beverage. While the suspect is
performing this test, the officer must observe the suspect from three or four
feet away and remain motionless while the suspect performs the test. Being too
close or excessive motion may cause the suspect to make errors they may not
have committed otherwise. This will cause some validity of the results to be
lost as even a sober person may have difficulty under these conditions.
The officer must give
good verbal instructions and accompany this by demonstrations when having the
suspect perform this test. They must make sure that the suspect understands the
instructions and are trained to receive an acknowledgement of same and to
document that affirmative response. This test is scored in relation to eight
scoring factors that can be seen in two separate stages.
The first stage of
this test is called the Instruction Stage.
This will set the stage for the entire test. If the officer does not follow
training and procedure during this stage, it may affect the validity of the
entire test. The officer must verbally tell the suspect to assume the heel to
toe stance and must demonstrate this. The suspect is told to place their left
foot on the line and place their right foot on the line ahead of the left foot,
with heel of right foot against toe of left foot. This must be demonstrated. In
the absence of demonstration, instructions alone decreases the tests validity.
The officer is instructed
by way of training to make sure the right foot is in front of the left foot to
start, in order to maintain uniformity of this test. This also becomes
important later in the test during the turning evaluation. If the suspect is
instructed or demonstrated improperly it may affect the suspect during this
part of the test. After accomplishing the starting position, the officer must
inform the suspect to remain in that position until they are told to start
walking. The officer must make sure that the suspect understands this.
Which foot do you favor?
Would it feel unnatural to start with the other one? There are two ways that
the officer can assess a point to the suspect's performance. If the suspect
cannot keep balance while listening to the instructions, a point is scored.
This item is only scored if the suspect does not maintain the heel to toe
position throughout the instructions.
The officer is trained to
be conservative in their scoring and not to score a point if the suspect sways
or uses the arms to balance but maintains the starting position during this
stage. Now it's OK to balance using your arms! (but only during this stage) A
second scoring factor is known as starting too soon. This is given when the
suspect starts to walk before the officer instructs them to do so. This can
only be scored if the officer specifically instructed the suspect not to start
until told to begin and the suspect stated they understood this instruction.
Have you ever thought a person was finished speaking and started to repond
before they were finished?
The second stage of
this test is known as the Walking Stage.
The officer is to explain the test requirements, using verbal instructions,
accompanied by demonstrations. The suspect is informed again, that when told to
start, they must take nine heel to toe steps, turn around, and take nine heel
to toe steps back. The officer must demonstrate two or three heel to toe steps
for the suspect. The officer then informs the suspect and demonstrates the
same, that when the turn is performed, the suspect must keep the foot on the
line, and turn by taking a series of small steps. If the officer demonstrates
or instructs with the beginning wrong foot, the way a suspect turns will be
affected also. The officer, then continues with informing the suspect to keep
their arms at their sides while walking, watch their feet at all times, and to
count their steps out loud. They must be told that they can not stop once they
start walking.
When the officer
demonstrated the test did she remember to not look at the ground?
If the officer does not
reiterate the question of understanding or gain an affirmative response the
test may not be scored fairly and properly, thereby invalidating the results.
Scoring the Walk and
Turn
There are six scoring factors that can be observed in this stage. The first one
is if the suspect stops while walking to steady themselves. The officer can not
score this item if the suspect is merely walking too slow. The suspect must
pause for several seconds after one step. If this occurs, the officer is
trained to have the suspect begin from the point of difficulty instead of
starting over, as this test loses sensitivity if repeated several times.
Another scoring factor is referred to as not touching heel to toe. This can be
very subjective. If the suspect leaves a one half inch or more between the heel
and toe or does not walk straight along the line they can only be assessed one
point, no matter how many times this occurred.
During the instruction
stage if the suspect sways or uses their arms for balance a point can not be
scored. A point can only be scored if during the walking stage, the suspect
raises one or both arms more than six inches from the side in order to maintain
balance. If this is noticed to be the normal position of the arms, as in some
bodybuilders, the officer is trained to take that into account and be
conservative in their scoring. Any benefit of the doubt must be given to the
suspect. The next way a suspect can be given a point is if they lose balance
while turning. This item can only be scored if the suspect removes both feet from
the line while turning or does not take several small steps, and pivots in one
movement as in an about face movement. It is imperative that the officer has
demonstrated and articulated this movement properly in order to be scored. It
is important that the officer be conservative in their evaluation of this turn
and not be overly critical.
Finally, the last scoring
factor is if the suspect takes the incorrect amount of steps. This item is
scored only once, even if the incorrect amount of steps are taken in either
direction. The suspect was instructed to look down at their feet while
performing this stage of the test and to count their steps out loud, but if
they don't adhere to these instructions they can not be scored a point as these
are not one of the scoring factors. There are two ways that the suspect can
receive a maximum of eight points on this test. If they step off the line three
or more times or they can not do the test. If they can not do the test, this
must be explained by the officer. A degree of reliability has been attached to
this test of 68%. If the suspect receives two total points on this test, the
officer is trained to use this as probable cause to believe that the suspect is
under the influence of an alcoholic beverage and to make an arrest.
One Leg
Stand Test
In order to perform this
test, it must be performed on a hard, dry, level, non-slippery surface.
Conditions must be such that the suspect would be in no danger if he or she
were to fall. Certain wind/weather conditions obviously may interfere with and
affect the validity of this test. This test should not be given to persons who
are more than sixty-five years of age, more than fifty pounds overweight, or
with physical impairments that interfere with balance. Individuals wearing
heels more than two inches high should be given the opportunity to remove their
shoes as this may diminish the reliability of the results. The officer is
trained not to give this test if there is not adequate lighting to perform it.
In total darkness, even the average, sober person may have difficulty with this
test, due to their visual frame of reference being taken away.
It is imperative that the
officer observe the DWI suspect from at least three feet away, and remain as
motionless as possible while the suspect is performing this test. If this is
not done, the test may be interfered with and ultimately affect the results and
validity. In the administration of this DUI test, there is also two
separate stages involved. The first stage is also called the "Instruction"
Stage. The test is initiated by giving verbal instructions, followed by and
accompanied by demonstrations of those instructions. The officer is trained to
advise the suspect to stand with their heels together and arms down at their
sides. The officer must demonstrate this. The officer must also inform the
suspect not to start the test until told to do so, and must receive an
indication from the suspect that they understand the instructions so far and to
document this acknowledgement. There are no scoring factors involved until the
suspect is into the next stage which is called the Balance and Counting Stage,
unless the suspect can not perform the test at all. This would give the suspect
a maximum score of four points and would necessitate explanation on the part of
the officer. The second stage, the "Balance and Counting" Stage, the
officer is required to explain the test requirements further by instructing the
suspect to stand on one leg, holding the other foot in front, while the officer
demonstrates.
The suspect should be
allowed to stand on either leg that they wish. The suspect is instructed to
keep the foot raised about six inches off the ground. The officer demonstrates
this and should advise the suspect if it isn't to the officer's satisfaction. The
suspect is further instructed that while they are standing, they will count out
loud for 30 seconds, and the officer will demonstrate the count as
"one-one thousandth, "two-one thousandth, etc., all the way to
thirty-one thousandth. The suspect is told to look down at their foot while
counting and throughout the entire test, to keep their arms at the sides at all
times. They are told to refrain from hopping or swaying while standing. The
suspect must again acknowledge that they understand the instruction to retain
validity of the test. The test is then begun.
A suspect may be scored a
point for the following reasons.
- Suspect sways while balancing. The officer is
trained not to be too critical in this scoring as the suspect is a living,
breathing person, and some sway will be noticed as a result of this. The
swaying that can be scored is a marked sway, such as a back-and-forth
motion while the suspect maintains the one-leg-stand position. Ask
yourself this: is it easier to balance yourself on one foot or two?
- The suspect uses the arms for balance in
respect to having their arms six or more inches from the side of the body.
Again it must be taken into account, the distance from the body that the
suspect might normally start with, such as in the case of bodybuilders. If
the suspect puts their foot down, regardless of how many times, they are
only given one point on this scoring factor. The suspect should be allowed
to continue from the point of difficulty as this test may lose sensitivity
if repeated several times. The suspect has been instructed to keep
watching their raised foot and to count out loud, but if they do not
follow either of these instructions, they are not scored any points, as it
is not a part of any scoring factor. Ask yourself this: why does a circus
tightrope walker use that long pole? It is to allow herself to displace
her weight over a larger area to make it easier to balance in an unnatural
position If the suspect counts too slow it is imperative that the officer
stop the test after thirty seconds have elapsed as this may affect the
scoring and validity of the test. The officer is trained to time thirty
seconds of total test time. If the suspect counts too fast the officer is
instructed to slow them down.
- The last scoring factor in this test is when a
suspect hops on one foot. This is scored only if they resort to hopping on
the anchor foot in order to maintain balance. It should not be scored if
the suspect is having difficulty by moving the anchor foot back and forth.
The officer is supposed to be able to distinguish this as part of their
training and to allow the suspect this benefit.Ask yourself this: when you
feel you are about to fall, do you reflexively begin to hop to keep
yourself from falling?
Scoring the One Leg Stand
The suspect can receive a maximum score on this test in two ways. This will
happen if the suspect puts their foot down three or more times during the
thirty second count, or otherwise demonstrates that they can not do the test.
The officer must be able to articulate why they felt the defendant could not do
this test. The degree of reliability attached to this test if it is
demonstrated and scored properly is 65%. The officer is trained to use this as
probable cause to arrest the suspect for DWI.
For purposes of the arrest
report and courtroom testimony, the officer is trained that it is not simply
enough to report the suspect's "score" on the three tests. The
numeric scores are only important to the police officer in the field to
determine probable cause. It is insufficient to secure a conviction, and must
be accompanied by more descriptive evidence. The officer is trained that they
must be able to describe how the suspect performed, and exactly what the
suspect did when he or she performed the test and when these clues occurred.
The manual provided to the officer has a standard note-taking guide which
should be utilized to assist the officer and prove the case.
Horizontal
Gaze Nystagmus
The suspect must be
instructed to look straight ahead, keeping the head still while following and
focusing on the stimulus with the eyes until told to stop. The stimulus must be
twelve to fifteen inches in front of the suspect's eyes for ease of focus. The
officer is trained to receive an acknowledgement from the suspect that the
stimulus is at a comfortable distance from the suspect's eyes and to document
same.
Even though this test is
not a vision test, per se, eyeglasses are to be removed in order for the
officer to make a more accurate determination of the final total points. If the
suspect can not see the stimulus after removing the eyeglasses they must be
allowed to perform it with them on. According to the manual, hard contact
lenses are to be removed so as to avoid dislodging when the eyes are out at
maximum deviation or to prevent damage to the eyes. The manual says not to
administer the test if the suspect is wearing hard contacts. A person with a
glass eye or only vision in one eye can not be given this test. An evaluation
of just one eye and a doubling of the score, assuming that the other eye will
render the same results is both erroneous and improper.
If the suspect has what
is known as the lazy eye condition, the officer is trained to test one eye
while the other eye is covered by the suspects hand, then to switch same. A
person who is color blind is not validated for this test as they will probably
have a pathological Nystagmus which is normal, and natural for that person.
Three to four percent of
the general population will exhibit a pathological Nystagmus. This can be
caused by some type of neurological disorder, brain damage, epilepsy or
pathological disorder which the suspect is born with or of unknown etiology. A
large disparity between the right and left eye can clue the officer into this
problem. At an accident scene, if the suspect sustains a concussion, this may
bring on a pathological Nystagmus thereby invalidating this test.
Although very few test
conditions affect gaze Nystagmus, there are certain administrative procedures
that must be followed. As previously mentioned, the stimulus must be placed
twelve to fifteen inches in front of the suspect's eyes. The stimulus should be
held above eye level, so that the eyes are wide open when they look directly at
it. Due to narrowness of certain individuals eyes it becomes more difficult to
make a fair evaluation of the Nystagmus unless the eyes are wide open.
If the officer believes
that the Nystagmus might be there, it can not be scored, as the benefit of the
doubt must be given to the person that is being tested. The officer is also
trained to administer this test with the suspect looking into a quiet
background, away from the police cruisers overhead. This is to avoid the
probability of evaluating an induced condition known as opto-kinetic Nystagmus.
This is brought on when a person focuses on several objects at one time or
objects that are moving away. The quiet background that is recommended is away
from the view of passing motorists. This opto-kinetic Nystagmus is a defense
mechanism of the body in order to keep the eyes from tiring. There are numerous
visual or other distractions that may impede this test. Certain environmental
factors such as wind, dust, etc. may interfere with the performance of the
Nystagmus test.
As explained earlier,
Nystagmus is the involuntary jerking of the eyes. In intoxication, three signs
will often be observed. Each eye must be checked separately. The first clue
that is looked for is known as smooth pursuit.
First Clue: Lack of Smooth Pursuit What the
officer is trained to look for is the suspect's inability to pursue a moving
stimulus smoothly while focusing that stimulus being moved horizontally, from
side to side. If the suspect moves his head to the side at any time, the score
may be invalid regardless of which clue we are looking for. An example of what
is being looked for is like a marble rolling across a smooth pane of glass.
This will be a very smooth pursuit. If the suspect is under the influence, the
eyes will bounce or jerk in similar fashion as that same marble, but now rolled
across a piece of sandpaper. The officer is instructed to check the left eye
first by moving the object to the officer's right. The object must be moved
smoothly, at a speed of about two seconds to bring the suspect's eye as far to
the side as it can go. Any choppy or shaky hand movements or movement that is
too fast by the officer may induce a Nystagmus in the suspect's eyes and
invalidate the scoring and test. The officer is instructed to make two or more
passes in front of the eye to be absolutely certain that what they are seeing
is Nystagmus and a valid clue. If this clue is scored as Nystagmus the suspect
is assessed one point. If the suspect has this clue emanating in one eye, it is
no guarantee that it will be exhibited in the other eye. This should be the easiest
clue to see.
Second Clue: Distinct jerkness at maximum
deviation after they have checked the first eye for the smooth pursuit clue,
they must check the same eye for what is called distinct jerkiness at maximum
deviation. This is accomplished by simply moving the object to the side until
the eye has gone as far to the side as possible. At maximum deviation, no
sclera or white will be showing in the corner of the eyeball. The officer must
hold the eyeball at that position for two or three seconds, and observe the
eyeball for distinct jerkiness. The jerkiness must be both distinct and
obvious.
If the officer can not
make this distinction from a slight nystagmus,the benefit of the doubt must be
given the suspect. The officer may make the mistake of not bringing the eyes
out to side as far as they can go or too rapidly return the stimulus and
incorrectly score this part of the test. The criteria of no white showing in
the corner of the eye must be met. A Nystagmus may be incorrectly mistaken for
physiological Nystagmus if the officer does not hold the stimulus out to the
side for two or three seconds.
In approximately 50% of
the suspects they encounter, a physiological Nystagmus will be apparent when
the eye initially arrives at maximum deviation. This is due to a person not
normally following an object all the way to the side with their eyes, but
turning their head to view that object. Consequently, a certain degree of
uncomfortableness is experienced, causing a slight twitching of the eyes at
this location. If the officer brings the eyes out to the side and then
immediately brings them back, he may be scoring this physiological Nystagmus
inappropriately.
Everyone has a
physiological Nystagmus, but it is not visible to the naked eye. The reason it
exists is to exercise the eye muscles, lubricate them, and prevent atrophy.
Remember the jerkiness must be distinct and obvious to be scored a point.
Final Clue: Angle of Onset This is the most
difficult to evaluate. If a suspect exhibits this clue in one eye, the probability
increases that all the other clues will be seen as well. This does not work in
reverse though. If a suspect has any of the first two clues, it is no guarantee
that the third clue will be there. Because the 45-degree angle is a key factor
in assessing a suspect's degree of alcohol influence, it is important to
know how to estimate that angle. The person is told to follow the stimulus
until they are looking down the 45-degree diagonal. This obviously is used as
practice to recognize the angle. A rule of thumb that is being taught is in
order to estimate the 45-degree angle, the stimulus must be halfway between the
suspect's ear and nose on the side being tested or just outside the shoulder
area. The estimation of this angle is critical, since studies have shown that
as the alcohol increases the angle will decrease. Although this may be the
case, this angle should not be used to estimate a specific amount of alcohol in
the bloodstream. In order to properly score this part of the test, the officer
must move the object to the 45-degree angle of gaze, taking about four seconds.
As the eye follows the object, the jerking is looked for. If Nystagmus is
observed, the stimulus is stopped and the officer must make an observation that
it is continuing at this point. If it continues, then the officer must make
sure that there is still white showing in the corner of the eye and the angle
must be estimated to be prior than 45-degrees. If it does not, the object must
continue to be moved until the jerking does occur and continues or until the
45-degree angle is reached. If no white of the eye is showing, the eye has
either been taken too far to the right, which would be maximum deviation that
is being evaluated, or the person has unusual eyes that will not deviate very far
to the side. The criterion of onset before 45-degrees only can be used if some
white can be seen at the outside of the eye. Too often the officer incorrectly
estimates the angle or scores this with no white showing in the corner of the
eye or both.
Ask yourself this: Can
you effectively pick a 45 degree angle without having actual lines to use as a
reference point?
This test is deemed the
most reliable test in determining probable cause to believe someone is under
the influence of an alcoholic beverage. This depends on the proper
administration, proper scoring, and proper training is adhered to. Even if this
be the case it is still only 77% reliable. This test should not be administered
if the suspect is in a supine position. It can be administered to them if they
are sitting or standing as long as they are erect.
At an accident scene,
with a suspect lying down and this test performed, it would be invalid due to
positional alcohol Nystagmus being the cause of the Nystagmus encountered. This
is a vestibular Nystagmus that is evident when the amount of alcohol in the
vestibule system is in unequal proportions to the amount of alcohol in the
bloodstream and reacts to gravity such as the changing position of the head.