- April 12, 2018 |
- Category: DUI and Courtroom Process
The typical Ohio DUI investigation involves three separate and distinct phases:
- Phase One: Vehicle in motion
- Phase Two: Personal contact
- Phase Three: Pre-arrest screening
This is the third installment of a three-part series of articles. In my article from April 9, 2018, I discussed the first phase of the standard DUI investigation, that being what the police observe when a DUI suspect’s vehicle is in motion. On April 11, 2018 I wrote an article that focused on the second phase of the DUI investigation, the personal contact between the officer and the driver once the vehicle has been stopped. This is the third installment of the article and addresses phase three of the DUI investigation. Phase three includes all interaction between police and DUI suspect once the suspect is out of the vehicle. The primary part of phase three is the field sobriety testing administered by the officer.
Like phases one and two, the third phase of the DUI detection process includes two major evidence gathering tasks and one major decision by the police officer. The officer’s primary task in phase three is to administer three scientifically validated Standardized Field Sobriety Tests. Some police agencies also utilize a preliminary breath testing device during this stage of the investigation. At the conclusion of phase three, the officer will make his own personal decision on whether he believes there is probable cause for a DUI arrest based on the entirety of evidence he obtained in phases one, two and three.
The first of the three standard field sobriety tests in a DUI case is called the Horizontal Gaze Nystagmus (HGN) test. “Nystagmus” means an involuntary jerking of the eyes, which can be caused by impairment from alcohol and certain drugs. This is widely considered the most reliable of the field sobriety tests. Involuntary jerking of the eyes becomes readily noticeable when a person is impaired. As a person’s blood alcohol concentration rises, their eyes will begin to jerk sooner as they move their eye to the side, aka peripheral point of vision or side gaze. In addition to being involuntary the person experiencing the nystagmus is usually unaware that it’s happening. In administering the HGN test, the officer is trained to have the DUI suspect follow the motion of a small stimulus with the eyes only. The stimulus is usually a pen, pencil, or something similar that contrasts with the background.
To test for Horizontal Gaze Nystagmus, the suspected DUI driver is instructed to stand with his feet together, hands at his sides, holding his head still. He is further instructed to follow the motion of the stimulus with his eyes only. The police check each eye, starting with the driver’s left eye. Two or more “passes” are made with each eye, to look for each of the clues of nystagmus.
Each eye is examined for three specific clues: (1) As the eye moves from side to side, does it move smoothly or does it jerk noticeably? (As people become impaired by alcohol, their eyes exhibit a lack of smooth pursuit as they move from side to side.); (2) When the eye moves as far to the side as possible and is kept at that position for four seconds, does it jerk noticeably and distinctly? (Distinct and sustained nystagmus at maximum deviation is another clue of impairment.); and (3) As the eye moves toward the side, does it start to jerk prior to a 45 degree angle? (Onset of nystagmus prior to 45 degrees is another clue of impairment.).
As a person’s blood alcohol concentration increases it is more likely these clues will appear. The maximum total number of clues is six, three for each eye. The original research was conducted by the Southern California Research Institute (SCRI) and used to develop the initial curriculum showing this test was 77% accurate at detecting subjects at or above a 0.10 blood alcohol concentration. While not technically accurate, officer will say a suspect “fails” the Horizontal Gaze Nystagmus test if he exhibits four or more of the six clues.
The second standardized field sobriety test is called the walk and turn (WAT) test. This test was also studied by the Southern California Research Institute and the research determined the test is 68% accurate at detecting subjects at or above a 0.10 blood alcohol concentration. Walk and Turn is a divided attention test consisting of two stages: the instructions stage and the walking stage. The instructions stage divides the subject’s attention between a balancing task (standing while maintaining the heel to toe position) and an information processing task (listening to and remembering instructions). In the instructions stage, the DUI suspect must stand with his feet in a heel to toe position, keep his arms at his sides, and listen to the instructions. After giving the instructions, the officer is supposed to demonstrate how to do the test.
Once the walking stage begins, the DUI suspect is supposed to take nine heel to toe steps, turn around by pivoting their inside foot and taking three small steps with their outside foot, and then take nine heel to toe steps back to the point of origin. The DUI suspect is also supposed to count his steps out loud and watch his feet while he’s walking. Like all of the standard field sobriety tests, the Walk and Turn test is supposed to be administered and interpreted in a standardized manner, i.e., the same way every time. The police officer conducting the test is looking for eight specific clues in this test. The eight possible clues are as follows: (1) DUI suspect cannot keep balance while listening to the instructions; (2) starts walking too soon; (3) stops while walking; (4) does not touch heel to toe while walking; (5) steps off the line; (6) uses arms to balance; (7) makes an improper turn; and (8) takes an Incorrect number of steps. Again, while not technically accurate, officers will say a suspect “fails” the Walk and Turn test if he exhibits two or more of the eight clues.
The third standardized field sobriety test is called the One Leg Stand (OLS). This test, like the other two described above, was researched and studied by the Southern California Research Institute (SCRI). The SCRI determined the test is 65% accurate at detecting subjects at or above a 0.10 BAC. It is a divided attention test consisting of two stages: the instructions stage and the balance and counting stage. During the instruction stage, the DUI suspect must stand with his feet together, keep his arms at his sides, and listen to instructions. In the Balance and Counting Stage, the DUI suspect must raise one foot approximately six inches off the ground, with both legs straight and position the raised foot parallel to the ground.
The officer tells the DUI suspect to look at his elevated foot and count out loud in the following manner: “one thousand one”, “one thousand two”, “one thousand three” until told to stop. This divides the subject’s attention between balancing (standing on one foot) and small muscle control (counting out loud). The officer is supposed to time the DUI suspect for a period of thirty seconds after which he tells the suspect to put his foot down. The OLS is required to be administered and interpreted in a standardized manner for it to be a reliable tool. Officers are supposed to observe the DUI suspects performance, looking for four specific clues: (1) DUI suspect sways while balancing; (2) uses his arms to balance; (3) hopping; and (4) puts his foot down. While not technically accurate, officers will say a suspect “fails” the One Leg Stand test if he exhibits two or more of the four clues.
In most cases, after the DUI suspect completes the standardized field sobriety testing, the officer will make a decision on whether to arrest the driver. The officer is trained to make his decision on the culmination of everything he’s observed in all three phases of the DUI investigation. Again, the officer is trained to arrest a DUI suspect if there is probable cause that he’s operating a vehicle while impaired or above the legal blood alcohol concentration limit.
This concludes the three-part series on the DUI detection and enforcement in Ohio. I hope you found it informative.
No Ohio DUI arrest is perfect and a good DUI lawyer understands this. Most Ohio DUI investigations include a number of witnesses, including police officers who administer field sobriety tests. These witnesses are human and they make mistakes. It’s not uncommon for an officer to make mistakes when administering field sobriety tests. Those mistakes can be utilized in building a defense to a DUI charge and potentially be leveraged into a dismissal or reduction of all charges.
There are over a million laws in the United States and thousands in the state of Ohio alone. I am a top Ohio DUI lawyer who focuses his entire practice on just one. Because of my considerable experience and concentrated practice, I understand the Ohio DUI laws better than most attorneys in the state. I am passionate about Ohio DUI defense and I get results. If you have an Ohio DUI case and want a top Ohio DUI lawyer to represent you, please give me a call.
