Initial Contact
In almost all cases, your St. Petersburg criminal defense attorney will want to look at the circumstances under which you came into contact with law enforcement to begin with. Was the encounter consensual in nature? If not, was the stop supported by the requisite reasonable suspicion of criminal activity? For more information on the initial contact with law enforcement, see our blog post from September of 2015 entitled "The Three Levels of Police / Citizen Encounters".
Traffic cases present a caveat to the general rule, in that a lesser degree of suspicion is required to stop a motor vehicle than would be the case involving a person on the street. There are some other considerations your criminal defense lawyer will want to examine that are unique to DUI cases specifically, including whether the vehicle was operable, and whether the law enforcement officer (or any one else) can identify the client as the driver of vehicle. It is to a discussion of these issues that we now turn.
Operability
As stated elsewhere in the DUI section of our website, one of the elements that the state is required to prove in DUI cases is that the accused was driving or in actual physical control of a motor vehicle. Invariably, the question will sometimes arise as to whether the accused person is, as a matter of law, in actual physical control of a vehicle that is not operable. In State v. Jackie E. Jones, for example, the appellant was discovered by two Florida Highway Patrol Troopers slummed over the wheel of a car. See 510 So.2d 1147 (Fla. 1st DCA). She was visibly intoxicated and advised that her vehicle needed a jump before it could be driven. Further investigation revealed that her sister-in-law had driven the vehicle prior to it becoming inoperable. Electrical problems prevented the vehicle from running and it had to be pushed to a nearby repair shop. In reversing her conviction, the First District Court of Appeal held that "it readily appears that a person ought not be convicted of having a vehicle under his or her control when intoxicated when in fact the vehicle was inoperable, the intoxicated person did not operate the vehicle prior to its becoming disabled, and the vehicle's mechanical problems were such that it could not under any reasonable circumstances have been operated by the accused person".
The key issue in these types of cases is whether the state can prove that the accused person was driving the vehicle before it became inoperable. The Florida Supreme Court has promulgated a jury instruction for these situations, which reads as follows:
"It is a defense to the charge of driving under the influence if at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the other elements of the charge have been proven beyond a reasonable doubt".
In those cases where your vehicle was mechanically inoperable, and there is no evidence that you drove the vehicle prior to your contact with law enforcement, your St. Petersburg DUI lawyer will want to consider filing what is called a (c)(4) Motion to Dismiss. For additional reading on this topic, see the "Defensive Motions" section of our website. Where there is a dispute as to whether you drove your inoperable vehicle prior to your contact with law enforcement (e.g. where you say you didn't and some other person says you did), you and your criminal defense attorney will want to discuss the viability of taking the case to trial. For additional reading, see the "Trial" section of our website. If it appears that the state cannot meet its burden of proof on that issue, the risk of a trial may be worth taking. In any event, the take away here is that there could be an operability issue in your DUI case and, if so, it something that needs to be addressed as part of an effective defense strategy.
Identification and Corpus Delicti Issues
The issue of identification comes up every so often in my DUI cases. Simply put, the state has the burden of proving, beyond a reasonable doubt, that the defendant drove (or was in actual physical control of) a motor vehicle. In most instances, the officer conducting the traffic stop will pull the client over and make contact with that person while they are still seated behind the wheel. But what happens if there is a crash, the client is the sole occupant of his or her vehicle, and he or she is no longer behind the wheel at the time law enforcement arrives? Perhaps the occupant(s) of the other involved vehicle can identify the client as the driver, but perhaps not. What if it is a single vehicle crash (where for example the client hits a telephone pole) and is no longer in the vehicle when the investigation commences? What if there were two occupants in the suspect vehicle and each is telling the police that the other was the driver? What if no witness can place the accused person behind the wheel but the client admits to driving? As I said, these issues do come up and if effectively raised with the prosecutor and/or judge, they can result in a very favorable outcome for the client.
In a case several years ago, for example, my client was arrested for DUI after law enforcement arrived on scene and interviewed my client and the other occupant of the vehicle. My client, an airline pilot with no prior criminal history, denied being the driver. The other occupant initially told police that my client was driving, but thereafter changed his story and stated that he (the other occupant) had in fact been driving. After much time and effort, the state determined that it could not prove that my client was the driver beyond a reasonable doubt. Because the other individual gave conflicting versions of events, there was no reliable direct evidence of i.d. and no way to establish, circumstantially, that my client was the driver. The charge was nolle prossed which, in all likelihood, saved my client's career. Where there is an issue as to identity of the driver, your St. Petersburg criminal defense attorney should do everything necessary to leverage that into a favorable result in your DUI case. While an outright nolle prosse is rare, your DUI lawyer may, at the very least, be able to secure a reduction in charge. In a felony situation, this can mean the difference between an incarcerative sentence and a probationary sentence and may also avert some potentially devastating implications with regard to your driving privileges.
The issue of identity (of the driver) can become a bit more complicated where no one can positively identify the accused person as the driver, but the accused person admits to being the driver nonetheless. This is scenario presents what is called a "corpus delicti" issue. Corpus delicti means, quite literally, "body of the crime". Under the corpus delicti doctrine, the state must produce at least some evidence of each element of the crime to authorize the introduction of a defendant's admission or confession at trial.
In State v. Colorado, 890 So.2d 468 (Fla. 2nd DCA 2004), the state appealed a Hillsborough County Circuit Court order suppressing the appellant's admission that he was the driver based on a corpus delicti issue. In Colorado, the victim died in a one car accident and the appellant was charged with DUI manslaughter. He and the appellant were the sole occupants. The appellant's attorney filed a motion to suppress the appellant's statement to police (who were otherwise unable to determine who was driving) that the appellant had been the driver. The defense asserted that there were no witnesses who could identify the appellant as the driver, the car was not registered in the appellant's name, and there was no evidence that placed him behind the wheel. The circuit court granted the motion and the state appealed. In affirming the decision of the lower court, the Second District Court of Appeal held that "the state was unable to produce any evidence that placed Colorado behind the wheel of the car, and the corpus delicti rule prevents it from relying solely on Colorado's admission to establish this critical element".
You should know, however, that the corpus delicti analysis is very fact intensive. The state can rely on circumstantial evidence to establish corpus delicti for the purpose of having a defendant's admission (to being the driver) admitted for a jury's consideration. The state, where appropriate, will argue that the vehicle was registered to the defendant, the defendant was in immediate proximity of the vehicle at the time police arrived (although not behind the wheel), the defendant was in possession of the keys to the vehicle, and/or that the defendant's injuries are consistent with him or her being behind the wheel at the time of the impact (where, for example, there is a crack in the driver's side windshield and the defendant is observed to have a laceration to his or her head). Although the corpus delicti doctrine is not always a sure fire route to having the charges dropped, it is an issue that should be thoroughly explored by your St. Petersburg DUI attorney where appropriate.
The Stop
There are three levels of police/citizen encounters: (1) a consensual encounter; (2) a stop; and (3) and arrest. With regard to the consensual encounter, the officer does not have to have any suspicion that a person is, or has been, involved in criminal activity. The officer can approach the person for no reason at all. The flip side to that coin is that the person is under no obligation to engage the officer in conversation and is free to leave. Because the person is free to leave, the Fourth Amendment's protections against unlawful search and seizure are not invoked in the consensual encounter scenario. The next level of police/citizen encounter is the stop (sometimes referred to as a "Terry Stop", based on the United States Supreme Court case Terry v. Ohio, which set forth the circumstances under which a police officer could lawfully detain a person and pat down the person's outer clothing to check for weapons and/or contraband). To pass constitutional scrutiny, the officer must have "reasonable suspicion that criminal activity is afoot". Put a bit differently, the police officer must have reason to believe that the individual being detained is, was, or is about to be involved in criminal activity. Where a stop occurs, the person who is the subject of the stop is not free to leave. The next level of encounter is the full blown arrest, which must be supported by probable cause. Probable cause is a higher standard than reasonable suspicion, so the observations by an officer that would perhaps justify a stop, may not be enough to justify an arrest. For further reading on this, see our prior blog post entitled "The Three Levels of Police Citizen Encounters".
Where the officer conducts a stop (traffic or otherwise) that is not supported by the requisite reasonable suspicion, or makes an arrest that is not supported by the requisite probable cause, your St. Petersburg criminal defense attorney will, in all likelihood, file what is called a motion to suppress. If the court agrees (and the motion is granted), all evidence obtained by law enforcement pursuant to the tainted stop or arrest is suppressed. For further reading on this topic, see the "Defensive Motions" section of our website. In many instances, and particularly in DUI cases, the granting of a motion to suppress is fatal to the state's case. If, for example, the officer lacked reasonable suspicion to conduct a traffic stop on your vehicle, and you were arrested for DUI, every piece of evidence against you would be inadmissible at trial including: (1) the officers purported observations of you upon making initial contact (in which he or she would assert that your eyes appeared bloodshot, your speech was slurred, and you emanated the odor of an alcoholic beverage); (2) any observations he or she made of you exiting your vehicle; (3) any and all statements you made about what you had consumed that night and how much; (4) observations of your field sobriety test performance, if you elected to participate; and (5) either your breath/blood/urine test results or the fact that your refused to submit to the test that was requested of you. With all of that being suppressed, the state is not left with much (if anything) to go on and the prosecutor will not have much choice but to nolle prosse the charge. As a St. Petersburg DUI lawyer, upon receipt of the state's discovery, issues related to the initial contact with my client, including the basis for the stop, are one of the first places I look in formulating a comprehensive defense strategy. As a Pinellas County state prosecutor, it was my job to argue against the suppression of evidence where a DUI defense attorney attempted to have it suppressed. Litigating DUI cases as a prosecutor for as many years as I did has given me a broad knowledge base in terms what issues can be raised, the viability of the motion, and the likelihood of extracting a more favorable resolution where there is some doubt as to what the court will do. It is, if course, my current Pinellas and Hillsborough county DUI clients that benefit from those years of experience.
One of the most common bases for the initial traffic stop in a DUI case is where the officer observes the driver failing to maintain his or her lane, or weaving within the lane of travel. Florida statute section 316.089(1) provides, in pertinent part, as follows: Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply: (1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. In State v. Crooks, the appellant was a forty-six year old man of Jamaican heritage who wore his hair in a Rastafarian style. See 710 So.2d 1041 (Fla. 2nd DCA 1998). The appellant was traveling northbound on I-275 when he drew the attention of a local deputy and a Florida state trooper who were patrolling the roadway as a two man team. The trooper pulled up alongside the appellant's vehicle (that was traveling in the right lane), while the deputy observed the appellant's right tires veer into the emergency lane on three occasions. The appellant was stopped, and a small quantity of marijuana was located inside the vehicle. The appellant's criminal defense attorney filed a motion to suppress, which was denied. The Second District Court of Appeal reversed the trial court's denial of the the motion to suppress because (1) the deputy testified that he did not believe the appellant was intoxicated or impaired prior to conducting the stop; (2) the record did not establish how far into the right hand emergency lane the appellant's vehicle traveled; and (3) there was no objective evidence suggesting that the appellant failed to ascertain that his movements could be made with safety. In State v. Davidson, which was decided the following year, the Second District Court of Appeal reached a different conclusion, based on a slightly different set of facts. See 744 So.2d 1180 (Fla. 2nd DCA 1999). In Davidson, the trial court granted the appellee's motion to suppress, and the state appealed. At the hearing on the motion, the arresting officer testified that he observed the appellee's vehicle traveling southbound on I-75, at an estimated speed of between 40-48 m.p.h., with a minimum speed limit of 40 mph. The officer also observed the appellee's vehicle continually drift across the lane and then jerk back in the opposite direction in a correcting manner. The officer testified that he conducted the stop because the driving pattern being exhibited by the appellee was consistent with that of an impaired driver. The officer located cocaine in the vehicle, and the appellee was arrested. In reversing the trial court's order suppressing the cocaine, the Second District distinguished the facts of Crooks from the facts of Davidson, holding that in the former case, the arresting officer did not believe that the driver was impaired, whereas in the latter, the arresting officer did. Also, the Court noted, in Crooks, it appeared that some or all of Crooks' drifting over the line was caused by the actions of the law enforcement personnel involved.
As a St. Petersburg criminal defense attorney, I always order and review the video recording of the traffic stop. In a recent case, my client was charged with felony possession of marijuana and DUI. The recording of the stop showed his right tires weaving into the adjacent right lane of travel, although not by much. The officer did not note in his report that the believed my client to be impaired prior to the stop, but I suspected that would be his testimony had we filed a motion to suppress. My client was offered pre-trial diversion on the felony, which would not have been offered had we litigated the stop issue. He successfully completed diversion, and the felony charge was dismissed. Had there been no felony charge, I would have encouraged him to allow me to run the motion. I think there was a decent chance of success, and there would have been no downside to taking the shot if his only charge was the DUI.
It is worth noting that in Florida, a police officer is legally authorized to conduct a traffic stop under circumstances less suspicious than would be required to stop a person on the street. In DeShong v. State of Florida, for example, the Second District Court of Appeal overturned a Hillsborough County circuit court order re-instating DeShong's driving privilege, after it was suspended by the DMV, following an administrative suspension review hearing (for more information, see the "Administrative Proceeding" section of our website). The issue at the hearing was whether the officer had the requisite legal basis to stop Mr. DeShong's vehicle in the first place. In its opinion, the Second District reiterated that "the courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior". The Court also referenced past precedent for the proposition that "driving behavior need not reach the level of a traffic violation in order to justify a DUI stop". These legal principles are certainly something you and your St. Petersburg criminal defense attorney will want to discuss in assessing the viability of a motion to suppress, based on the particular circumstances of your DUI case.
Not all DUI stops are the result of a driving pattern, however. In Danielewicz v. State, a Clearwater police officer observed the appellant's vehicle parked outside a bar at the Clearwater Mall on Gulf-to-Bay Blvd. See 730 So.2d 363 (Fla. 2nd DCA 1999). The headlights were on and the engine was running. The officer testified that it was not a high crime area, the bar was open for business, he had no reason to believe that there was a mechanical problem with the vehicle, and had observed no traffic infraction. Upon approaching the vehicle, the officer observed the appellant behind the wheel and she appeared to be sleeping. He knocked on the window to get her attention but she did not open the door. The officer had to tell the appellant to get out of the car five times before she complied. Upon doing so, the officer made a number of observations that eventually led to the appellant's arrest for a felony DUI charge (based on her number of prior convictions). The appellant's attorney filed a motion to suppress, which the trial court granted, and the state appealed. On appeal, the Second District affirmed the lower court's order of suppression, holding that the initial encounter was not consensual in nature because the officer had to ask the appellant to exit the vehicle numerous times. Further, the officer lacked the requisite reasonable suspicion to order the appellant out of the car, which amounted to a seizure of her person. This type of case really emphasizes how important it is for your St. Petersburg DUI attorney to carefully scrutinize the circumstances of the initial stop; in a felony situation, effective motion drafting and litigation can mean the difference between a felony conviction (and possible prison time), and the charged having to be abandoned altogether.
Purported Clues of Impairment
If, upon making contact with you, the officer smells the odor of alcohol, or makes some other observation to suggest that you are impaired, he or she will immediately initiate a DUI investigation. Sometimes it will be the officer who effected the traffic stop that will also conduct the DUI investigation and other times the stop officer will call for a DUI unit to respond. In either instance, the law enforcement officers will be paying careful attention to your overall demeanor to detect potential signs of impairment. Do your eyes appear "bloodshot", "watery", and/or "glassy"? Are your words "slurred", "mumbled" or "incoherent"? Are your responses appropriate to the questions that are being asked of you? Are you able to retrieve requested documents, such as your driver's license, vehicle registration card and proof of insurance (I once had a client allegedly hand over a credit card in lieu of a driver's license)? The officer will also be observing your ability to exit the vehicle without losing your balance, and your "gait" as you walk from the vehicle to where the field sobriety exercises are, assuredly, about to take place (unless you refuse). At this point, you will be asked a series of questions. During this question/answer process, the officer will continue to assess potential clues of impairment with regard to your pattern of speech, appropriateness of your responses and, of course, incriminating statements. The officer will also be looking to determine the extent to which you "sway" while standing in front of him or her.
All law enforcement agencies in the Tampa Bay area utilize an "alcohol influence report" to document their observations. The A.I.R. is an 8.5 by 11 sheet of paper with a series of boxes to check, that correspond to particular clues of impairment. Any St. Petersburg DUI attorney will tell you that these AIR reports are a potential "gold mine" for cross examination material. This is especially the case where there is more than one involved officer and each fills out a separate A.I.R. report. In almost every instance, there will be at least some discrepancies in their respective observations that can be used to challenge the integrity of the investigation. In a recent DUI trial of mine, both the the stop officer and the arresting officer participated in the DUI investigation and both completed a separate AIR report. The stop officer noted on his form that my client "applied grossly incorrect answers to questions". I knew from watching the video that this was not the case. Regardless, I got the stop officer to commit that this is what he observed. I probably asked the question three or four different ways. When cross examining the arresting officer, who the state called as their next witness, I got the arresting officer to admit that every one of her answers, throughout the entire investigation, was appropriate to the question that was asked. After getting him to commit to that, I asked him if it would be fair to say that my client "applied grossly incorrect answers to questions". Of course, he said "no". The significance was not lost on the jury - the stop officer's credibility was very much tarnished. Thus, his testimony about her purported driving pattern (which was not recorded), in all likelihood carried no weight.
In certain instances, purported clues of impairment on the A.I.R. form are utterly inconsistent with the contents of the video recording and this too can be used effectively on cross examination. In that same trial, I was provided with two video recordings: a dash camera recording, which captured my client's interview and FST performance from a distance, and a body camera recording, which captured the same events from a much closer distance. The arresting officer testified on direct examination that my client was swaying significantly - about 2 to 3 inches in either direction. The state only played the dash cam video, which captured the events from a distance of about 30 feet. Thus, the contents of that video could neither corroborate nor refute the officer's testimony. I knew from watching the body camera recording, however, that the arresting officer had significantly exaggerated his observations of my client swaying. On cross examination, after really nailing him down on how much she allegedly swayed, I played the body cam video, which depicted no swaying at all. It was one of those moments where I knew my client would likely be exonerated and she was. The point is this: just because the AIR and/or narrative portions of the police report read badly for the DUI arrestee does not mean all is lost. An experienced St. Petersburg DUI lawyer can really leverage those purported observations against other evidence and testimony to inject a significant dose of reasonable doubt into the state's case.
Field Sobriety Exercises
Field sobriety exercises are a series of divided attention tasks used by law enforcement agencies across the country as purportedly objective criteria for assessing whether (and to what extent) a driver is impaired. In a jury trial setting, the state will attempt to convey to jurors that these exercises are a reliable, almost scientific, means of determining whether a person's normal faculties are impaired.
In 1977, the Southern California Research Institute began conducting research for the National Highway Traffic Safety Administration on the viability of developing standardized roadside tests and their relationship to impairment. After many years of study and research, the NHTSA developed three tests for law enforcement use nationwide: (1) Horizontal Gaze Nystagmus; (2) the "Walk and Turn" test; and (3) the "One Leg Stand" test. The manner in which these tests are to be administered and performed are detailed in the NHTSA DUI Detection Manual and most, if not all, law enforcement officers throughout the state of Florida receive training on its provisions. Most officers will acknowledge that they consider this manual to be authoritative on the administration of FSTs. It goes without saying that your St. Petersburg DUI attorney should be as well versed (or better) in the manual's contents as the investigating officer. There is some very valuable cross examination material within its pages, especially in instances where the officer did not instruct the client properly on what was required.
While FSTs may have some value as a means of assessing impairment, they are by no means the infallible determinant the state would have jurors believe. While they may appear relatively simple at first blush, these tests actually require a high level of physical dexterity and coordination to perform, regardless of drinking history. I cannot tell you how many times I have heard a person remark that they could not perform FSTs satisfactorily even if stone cold sober. Many people have physical conditions that can affect performance, including lower back pain, knee pain, weight issues, and age. Identifying these conditions can go a long way in refuting the state's assertion that less than optimal performance is attributable to impairment (particularly where the breath test is relatively low or where the person refused to submit to testing of his or her breath, blood or urine). As a St. Petersburg DUI attorney, this is always an important part of my initial discussion with a prospective client. If I am retained, and the client has a history of physical or medical conditions that may have affected his or her performance, I immediately task the client with obtaining all available records that support the existence of the condition. This information is a must in situations where the DUI attorney is attempting to convince the prosecutor that a reduction in charge is appropriate, and can be equally important in persuading a jury that the client's less than stellar performance was for reasons unrelated to impairment.
In addition to physical conditions, there is always stress associated with the situation the client is facing at the time the tests are performed. Most people will admit that seeing blue and red flashing lights in their rear view mirror produces a rush of anxiety like few other situations can rival. Once that person is out of the car, and is being asked to perform field sobriety tests, those feelings can become overwhelming. Does that affect performance? You bet it does. Police officers instruct on how to perform each of these tests only once prior to commencement and they do it very quickly. Most people are less focused on what they are being told than what is going to happen to their vehicle, how they will post bond, what this mess is going to end up costing them, and how it will affect their jobs and families. Is it any wonder that a person may take ten steps up the line instead of nine? Or forget to count out loud? Or not point their toes on the one leg stand? I don't think so.
These factors really resonate with jurors: many of them have driven, after having too much to drink, at one time or another. Many have a glass of wine or two with dinner and drive thereafter on a regular basis. In short, they can relate. Of course, effective voir dire questioning during jury selection is crucial. Your St. Petersburg DUI attorney will want to exclude those prospective jurors who are not likely to empathize with the client. These include people who don't drink at all, those associated with anti-DUI organizations such as MADD or SADD and, of course, those who have somehow been victimized by an impaired driver in the past. As a St. Petersburg DUI lawyer, I spend a great deal of time preparing for jury selection and do all I can to exclude those prospective jurors who are likely to view my client as being more of a "criminal" than as one of them.
While the DUI attorney cannot come right out and ask the jurors to place themselves in the shoes of the accused, there are subtle ways of conveying the message. As long as the defendant does reasonably well, there will be a degree of empathy from the six folks in the jury box (provided an effective voir dire examination was conducted). As a result, minor deviations from the officer's instructions are not the kiss of death. A skilled DUI defense lawyer can really take the sting out of a flawed performance through effective cross examination techniques and a solid, well prepared closing argument. As a young Pinellas County State Prosecutor (nearly twenty years ago), I tried a case against a very seasoned DUI defense lawyer. In viewing the video before trial, I felt that a conviction was virtually assured. I was wrong. This lawyer absolutely decimated the arresting officer on cross examination regarding his administration of the FSTs. The attorney's approach has been part of my cross examination strategy in DUI cases ever since. The value of trying cases against some of Tampa Bay's best criminal defense lawyers early in my career cannot be overstated. It has made me a much more effective lawyer in my current practice. What follows is an overview of the various field sobriety exercises, including "alternate tests" and what clues of impairment the investigating officer is looking for.
- Horizontal Gaze Nystagmus
This, in layman's terms, is commonly referred to as the "pen test". The investigating officer uses a small illuminated object to observe and track abnormal eye movement that is, purportedly, the result of intoxicants in the test subject's system. The officer will require the driver to keep his or her head facing forward, completely static, and follow the motion of the light using only his or her eyes. Nystagmus refers simply to an involuntary "jerking" of the eyes as they gaze toward the side. In administering the HGN test, the investigating officer is first looking for the onset of nystagmus at, or before, 45 degrees (a 45 degree angle from a straight-forward gaze). Next, the officer is looking to determine whether the nystagmus becomes more pronounced past 45 degrees. Finally, the officer is looking for a "lack of smooth pursuit" throughout the driver's performance: do the eyes follow the direction of the light in a smooth manner or to they jerk and tug as the pen is moved back and forth?
Thus there are six potential clues of impairment: each of the three aforementioned criteria applied to each eye. At least in theory, the HGN trained officer can determine, through the application of this test, whether the test subject is impaired and can roughly estimate the person's blood alcohol level. Admissibility of the "results" at trial is, however, a different matter. First, a lay person cannot opine that the driver's performance on HGN is indicative of impairment. To give that opinion, the investigating officer must be properly trained and qualified to administer HGN. If it appears that the officer lack the requisite training and experience, your St. Petersburg DUI attorney will likely file a motion in limine to prevent that officer from testifying as to his or her observations regarding HGN and, more importantly, giving an opinion that the driver was impaired based on those observations. If the officer has sufficient training in the administration of HGN then the court will likely allow the officer to testify as to the purported signs of impairment and opine that the person was likely impaired based on his or her performance.
Can an otherwise qualified officer opine as to a particular BAC level based on the driver's HGN performance? While there is some uncertainty in the case law, the rule appears to be this: in the absence of a blood or breath test result setting forth the driver's BAC level, the investigating officer cannot give an opinion in that regard. So, in a refusal case, a qualified officer can testify as to his or her observations, can state that the driver's performance is indicative of impairment, but cannot state, for example, that the driver was about .09 based on his or her HGN performance. In this instance, once again, your St. Petersburg DUI lawyer will likely file a motion in limine to exclude any evidence of a particular BAC level, based on HGN performance, in the absence of a chemical analysis of your blood, breath or urine.
In cross examining the arresting officer on HGN, it is important to first bring up the fact that nystagmus is a naturally occurring phenomena. While drugs and/or alcohol may exaggerate nystagmus, it is something that we can expect to see without regard to the introduction of intoxicants into the body. Further, there are factors that can cause an exaggerated jerking of the eyes that have nothing to do with impairment. These include brain tumors, brain damage, diabetic neuropathy, other neurological problems, multiple sclerosis, stroke, or issues with the inner ear. Some types of medication may also result in nystagmus. To reiterate, as a St. Petersburg DUI attorney, I always question my client's on pre-existing medical conditions that may have affected FST performance and, when possible, get the necessary records to support my client's assertions.
Another area for effective cross examination is where the officer failed to administer the test correctly. In almost every instance, field sobriety exercises are video recorded so the officer will be unable to gloss over test administration deficiencies in his or her testimony. Video recordings don't lie, they are not biased, and they have no interest in the outcome of the case whatsoever. Did the officer instruct the driver to remove his or her eye glasses? Was the driver instructed to keep his or her head still throughout the administration of HGN? Did the driver comply? Prior to the administration of HGN, did the officer check for equal pupil size (unequal size may be indicative of a head injury)? Did the eyes track together (if not, it could indicate a possible medical disorder, injury, or blindness)? Did the officer position the stimulus (pen/light) 12-15 inches from the driver's nose and slightly above eye level?
Although HGN performance is usually recorded, it is recorded at a distance (as opposed to via body camera). Thus, there is no meaningful way to corroborate the officer's purported observations of less than satisfactory HGN performance. This fact can really take the sting out of the officer's testimony where there are other, observable instances where his or her testimony is clearly embellished based on the contents of the tape (where, for example, the officer states that the accused was visibly swaying 3-5 inches while being questioned and the tape shows that the accused was static). As always, the devil is in the details. A well prepared, well delivered, cross-examination can go along way in defusing HGN testimony by the arresting officer.
It should also be noted that not all experts agree on the reliability of HGN as an indicator of impairment. There is a lot of conflicting literature on that topic. In some instances, and where the client can afford it, the St. Petersburg DUI attorney may want to consider hiring an expert, on HGN, who has a very different opinion as to its viability as an indicator of impairment.
After performing HGN, the police officer will almost always ask the driver if he or she is willing to perform some standardized field sobriety tests. You are not required to perform these tests, and the officer cannot make you comply. If you refuse, the officer will tell you that he or she will be forced to make a decision as to whether probable cause exists to arrest for you for DUI, based on what he or she has observed up to that point (e.g. driving pattern, odor of alcohol, slurred of the speech, blood shot, water eyes, difficulty exiting the vehicle, the onset of nystagmus during administration of HGN, etc.) This is often times enough to induce individuals to agree to perform the exercises. Should you? I'll say this: in nearly 20 years of practice, as both a Pinellas County state prosecutor and a St. Petersburg DUI lawyer, I have never seen the officer let a person go after either (1) refusing to perform FSTs, or (2) performing them. These tests are designed for failure in my opinion. Most people just don't do all that well. Once again, the instructions are being given in rapid-fire succession, the tests are difficult to perform even with no alcohol having been consumed, and the matter is usually made worse by "performance anxiety" associated with the fear of imminent incarceration.
The walk and turn test requires the driver to take nine heel-to-toe steps up a line (that is drawn in chalk by the officer on a flat, concrete surface prior to commencing the test), turn as instructed, and take nine heel-to-toe steps back down the line. The person is required to keep his or her arms at their sides and not use them for balance. While giving instructions on the walk and turn test, the officer will have the driver assume the "starting position", which requires the person to stand heel to toe. This is a divided attention task in and of itself: maintaining that position for any period of time requires concentration. At the same, the person is required to concentrate on the instructions being given for the ensuing walk and turn test, if he or she is to perform them satisfactorily.
On this test, the officer is looking for the following "clues" of impairment:
- Loses balance during instructions
- Starts before instructions are finished
- Stops while walking
- Doesn't touch heel-to-toe
- Steps off the line
- Uses arms for balance
- Loses balance while turning / incorrect turn
- Incorrect number of steps
- Can't perform test
In preparing a defense to either have the charge reduced or for purposes of trial, the video recording is often key. Does the tape depict the officer instructing the client incorrectly? If, for example, the driver was not told to keep her arms at her sides during the test, it's pretty tough to then say that the failure to do so is somehow attributable to impairment. Although it is relatively rare, I have seen videos where the instructions were botched, which always gave me at least some leverage the case. Does the tape depict the client making the officer aware of certain medical conditions or physical disabilities that could affect performance on the walk and turn? Was the person required to perform the tests anyway? Had the person just been involved in a traffic crash? Were they injured? If so, could that have affected performance? The video recording will depict each and every finite detail of what took place and being able to identify and isolate problems with the manner in which the tests were administered can go along way in attaining a favorable result. While they may seem insignificant on an individual basis, enough pin-holes can sink a ship.
Inconsistencies between what the officer has marked down on the Standardized FST Form as purported signs of impairment, versus actual performance (as depicted on the video recording), is usually where the best defenses can be found. In a recent case, I received a copy of the Standardized Field Sobriety Form in discovery, which had almost every box check off for each of the purported signs of impairment above. To read it, you would think my client failed miserably. I then ordered the video recording and can honestly say that my client's performance was one of the best I have ever seen. He took nine steps up the line, nine steps down the line, turned as instructed, touched heel to toe, and did not use his arms for balance. The FST form and the video could not possibly be more inconsistent, which highlights the extent to which this officer was biased. Should the case proceed to trial, I will be armed to the teeth with cross examination material, thanks to the video.
One Leg Stand
The one leg stand test is typically performed immediately after the walk and turn test concludes.
Helping Good People Through Difficult Situations
