Criminal Defense and DWI

Individual
States, along with the United States Supreme Court, has made laws and
Judicial findings which allow the police to stop a motor vehicle for
DWI for DUI offenses. Police officers are allowed to pull a vehicle
over based on a “reasonable articulable suspicion” that you are
committing a crime or driving under the influence of alcohol or drugs.
The police can even stop your vehicle and ask you questions without
first having advised you of your constitutional rights, your right to
remain silent, or the right to an attorney. This is called an investigative detention.
As a driver, you have the right to refuse to answer any questions.
However, the likelihood is that if you refuse to speak with the police,
you will be arrested. One the other hand, if you answer the officers
questions and incriminate yourself, the more likely you will be
arrested. Welcome to DiscountLawyer.com

During the vehicle stop, (the “investigative detention“),
the officer is looking, observing, listening and using his sense of
smell to determine if you have consumed any alcohol. The officer is
also evaluating your dexterity, sense of balance and the sound of your
speech, and if you are slurring your words as you speak. Other factors
such as your ability to remain focused during the conversation and your
ability to respond without repetition and confusion is also important.
If the police officer asks if you consumed a drink containing alcohol,
it is likely that the police officer will ask you to exit your vehicle
and perform several “sobriety tests” to determine if you are indeed
operating a vehicle under the influence of alcohol or drugs.

At this point, the police are attempting to turn the investigative detention
into “probable cause” to arrest you. Depending on which state you are
being stopped in, the officer will ask you to perform several of the
following field sobriety tests; an eye test called the Horizontal Gaze
Nystagmus test, the Walk And Turn Test and the One Leg Stand Test. The
officer will first give you exact instructions on what to do for the
test, and then possibly demonstrate how the test should be done. Then,
he will ask you to perform the same tests. The offer does this in order
to determine if alcohol has affected your ability to listen to
instructions and then perform the tests according to those instructions.

Whether
you are intoxicated or not, these tests are specifically designed for
you to fail. If, for some circumstance you find yourself doing these
tests on the side of the road, prepare yourself to be arrested.

This
is where DWI Lawyers.com can help you. Never hire a general
practitioner to defend you. You are in serious trouble. A DWI or DUI
conviction can stop you getting a job, promotion, credit, or even
housing. You need an experienced, qualified, and knowledgeable DWI
Lawyer. Our lawyers focus their practice to help those charged with DWI
and DUI related offenses.

The
police use breath testing machines called “breathalyzers” to measure a
person’s blood alcohol content (BAC) based on indirectly measuring a
full sample of a person’s breath. However, breath testing machines are
often inaccurate. They are programmed to test the BAC of the average
person. If you are substantially taller or shorter, or are overweight,
the test may not be a reliable indicator of your condition.
Additionally, if you have a temperature or other condition which causes
your body heat to rise, the test results will also be inaccurate.
Moreover, certain mouth washes, cough syrups, certain medicines,
medical conditions including Diabetes, and some breath fresheners are
known to produce false readings.  Sometimes the
courts have thrown out the breath test results because of their
unreliability or for other reasons that make the test incorrect. False
BAC readings happen.  

There are two methods the police or prosecutor can use to convict you of DWI.  First,
the prosecutor can successfully convict you if your blood/breath
alcohol concentration is .08 or greater. Additionally, the prosecutor
can convict you if you have lost or compromised the normal use of your
mental or physical faculties by reason of the introduction of alcohol,
a controlled substance, a drug, a dangerous drug, a combination of
those substances. Therefore, even without the Breath Test sample, you
may still be convicted based upon the officers’ testimony or the
testimony of other witnesses.  

When
the police stop you, they are not required to read you or inform you of
your Miranda rights (the right to remain silent). While the officer is
observing you and your conduct, he is looking for hints or clues of
intoxication, smelling for alcohol or narcotics, and listening to the
way you answer his questions. If he feels you may be driving under the
influence of alcohol or drugs, he will order you out of your vehicle
and ask you to perform certain test. While the law requires you to take
a breathalyzer test, you are not required to perform the other roadside
performance tests. 

Nationally,
one of the most widely used field “tests” is reciting the alphabet. The
Police will instruct you to say the alphabet, “Not sing the alphabet”.
However, since we as a country learn the ABC’s by singing it, many
people cannot accurately recite the ABC’s without putting it to the
same tune we learned it in. Therefore, this test is challengeable and
is not an accurate reflection of your ability to operate a vehicle or a
determinative method of proving your BAC,

Another popular test
the police use is called the “Head Tilt Test.” For this test, the
police must properly advise you to hold your head back with your eyes
closed, place both arms stretched out and touch your nose with your
forefinger. The officer should then proceed to demonstrate the test to
you so that you understand what is expected of you. Occasionally, the
officer may also ask you to bend over at the waist and have your arms
hang in front of you. This is not a good predictor of your ability to
operate a vehicle or a good predictor of your BAC. If you have back
problems, injured your leg or foot, are older, are overweight, have
balancing or vertigo problems, stressed, weaving long heals, or even
normal, unless you walk everyday with your head back and your eyes
closed, you are not likely to do well on these tests.  These
tests are designed to induce you to sway, and consequently, fail the
test. These tests induce you to sway. That is exactly what they are
designed to do. 

Counting
on your fingers in a complicated pattern is another popular test the
police use. It is interesting to note that the police sometimes have
difficultly demonstrating the test. 

According the National Highway Traffic Safety Administration (NHTSA), three common police tests can be used to determine if a person’s BAC (breath/blood alcohol content) is more than 0.10%, and therefore to impaired to operate a vehicle. 

 

CLICK HERE TO FIND A QUALIFIED DWI ATTORNEY IN YOUR AREA

HERE IS MORE INFORMATION ON DWI FIELD TESTS

These are the tests that the Police use in addition to the alphabet test: 

1. Typically, the first tests the police use is called the One Leg Stand.
Provided that the police properly instructed you on how to do the test
and demonstrated the test to you, the One Leg Stand has a 65%
reliability of predicting if a person’s BAC is 0.10% or greater.
However, all of the proper instructions must be given to you for the
test to be reliable. You must be advised of the following statement,
and the officer must demonstrate as he is instructing you:  

  1. Stand with your feet together and your arms at your side.  
  2. Keep that position until you are told to begin.  
  3. The officer must ask if you understand the instructions and receive an acknowledgement from you that you do.  
  4. When told to start, raise either leg approximately 6 inches off the ground with your foot pointed out.  
  5. Keep both legs straight, arms at side.  
  6. Count 1,001, 1,002 etc. until told to stop. 
  7. Keep your arms at side and keep watching raised foot.  
  8. The officer must again ask if you understand the instructions and receive an acknowledgement from you that you do.  
  9. The officer will then start the test. 
  10. The test can last no more than 30 seconds of actual time. 

There are four scoring factors for the one leg stand test:  

  1. Sways while balancing.
  2. Arms for balance.
  3. Hopping. 
  4. Puts foot down. 

If
you put your foot down three or more times, you are considered to have
reached a “decision point” on the testing. If you stop at any point
during the testing, you should be given the opportunity to resume the
testing. 

2. THE WALK AND TURN TEST

The next standardized test is the Walk and Turn Test.
According ti the NHTB, the walk and turn has a 68% reliability of
predicting that a person’s BAC is 0.10% or greater provided That you
were  properly instructed,. All of the proper
instructions must be given to you for the test to be reliable. You must
be told the following, and the officer must physically demonstrate the
test as he is instructing you:  

  1. Place your left foot on the line.  
  2. Place
    your right foot on the line ahead of your left foot, with the heel of
    your right foot against toe of your left foot.  
  3. Keep your arms to your side. 
  4. Keep this position until you are told to begin. 
  5. The officer must ask if you understand the instructions and receive an acknowledgement from you that you do.  
  6. When told to start, take 9 heel-to-toe steps, turn, and take 9 heel-to-toe steps back.  
  7. When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot.  
  8. While walking, keep arms at side, watch feet at all times, and count steps out loud.  
  9. Once you start, don’t stop until test is completed.  
  10. The officer must ask if you understand the instructions and receive an acknowledgement from you that you do.  
  11. Begin the test and count first step from the heel-to-toe as “one”. 

The police use eight (8) scoring factors to determine your ability to complete the Walk and Turn test:  

  1. Cannot keep balance while listening to instructions. 
  2. Starting before instructions are finished. 
  3. Stopping while walking.  
  4. Did not touch heel-to-toe (more than 1/2 inch on any step).  
  5. Stepped off line.  
  6. Used arms for balance.  
  7. Improper turn.  
  8. Incorrect number of steps. 

3. The third standardized test is called the Horizontal Gaze Nystagmus (HGN) Test and is not submissible as reliable evidence in every jurisdiction.
Proving that you were properly instructed, the Horizontal Gaze
Nystagmus has a 77% reliability of predicting that a person’s BAC is
0.10% or greater.

In order to complete this test successfully. The police must you must advise you of the following:  

  1. I am going to check your eyes. 
  2. Keep your head still and follow this stimulus with your eyes only.  
  3. Keep following the stimulus with your eyes until I tell you to stop. 
  4.  

The police use six (6) scoring factors for the HGN test. One for each eye:  

  1. The Lack of Smooth Pursuit – The eyes “bounce” as they follow a smoothly moving stimulus.  
  2. Distinct
    Nystagmus at Maximum Deviation – Distinct Nystagmus is evident when the
    eye is held at maximum deviation for a minimum of four seconds.
  3. Onset of Nystagmus Prior to 45 Degrees – They are looking for the point at which the eye is first seen jerking. 

Not
all field sobriety tests are reliable nor have any real scientific
validity. Many factors can influence the outcome. Age, weight, mental
and physical challenges, uneven pavement, dangerous conditions,
tiredness, confusion, ability to understand English, and the like can
make the tests unreliable. Additionally, the testing should be done on
a well-lighted, dry, flat, hard, non-slippery surface with sufficient
room to perform the tests. Often, the side of the road are sloped for
water run-off or may be uneven for many reasons or may have broken
pavement.  This would affect the outcome of the tests.

Not
all lawyers are the same. Many attorneys do not know how to challenge a
DWI. If you or someone you know has been charged with a DWI or DUI
offense, you need an experienced lawyer who focuses his or her practice
to defending those accused of DWI or DUI related charges to help
you. 

CLICK HERE TO FIND A QUALIFIED DWI OR DUI LAWYER INYOUR AREA

 

 

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