By Christopher Adkins If you have been out drinking and are stopped by the police while driving home, what should you do? I will give you the most lawyerly answer possible: IT DEPENDS. I say that because it really does depend on a number of things. How much have you had to drink? Have you eaten anything recently? How long of a period of time were you drinking? How much do you weigh? These are all factors that will weigh into determining your BAC and whether you may legally drive. If, for example, you are a 200 pound man who had two 5% ABV beers with dinner over a one hour period before driving, your probably okay to drive. A rough estimate of BAC in that situation would put you somewhere around a .03 to a .04. If you had, however four 5% beers over that same time period, you might be somewhere around .08 to .09 and it probably would be best not to drive. A woman who weighs 120 pounds, who consumes four 5% beers over the period of an hour might be as high as a .17 to .18. These aren't exact numbers, of course, as alcohol may affect people differently. It does give you an idea, however, of what kind of factors may play into determining your BAC. In that scenario, if you were the 200 pound man who had two beers over the course of an hour, it might be wise to submit to an Alcosensor test and standard field sobriety tests. It may show the police that you are indeed sober and that you are able to drive a vehicle. If you were the 200 pound man who consumed four beers over the course of an hour, I would not submit to any testing whatsoever. In that situation, all you would be doing is providing the police with evidence to use against you in court. You also have to consider the field sobriety tests that you are taking. Some people and attorneys might tell you that they are designed to trip you up. This isn't true. They are designed to allow the officer to make his best determination as to your BAC and ability to operate a motor vehicle. Determining BAC and whether someone is sober enough to drive is NOT an exact science. The police officers are doing the best they can with the training they are provided. This being said, the fact that this testing is NOT an exact science works to your advantage. Many people don't realize the certain factors that may considerably throw off a field sobriety test. The Horizontal Gaze Nystagmus test (HGN), for example, may be thrown off entirely if the subject has sustained a traumatic brain injury (TBI). A TBI may cause resting nystagmus and the artificial triggering of nystagmus at levels not found in average people. This may also be true if the subject is wearing contacts, has to take off his prescription glasses, or has had eye surgery. All these factors may produce false positives for HGN. Both the Walk and Turn (WAT) and the One Leg Stand (OLS) may be thrown off if a subject has sustained previous injuries to their legs or lower body. A person who has a sprained ankle, for example, will not be able to walk or stand the same way as a person who has not. Also consider what type of footwear the subject is wearing and the surface in which the subject is taking the test. If a subject is trying to perform the WAT in high-heels on a slight incline, they probably aren't going to perform the test as well as a subject in sneakers on a flat surface. All these factors must be considered before agreeing to take any type of field sobriety test. If you absolutely know that you've had too much to drink, I would not advise that any person submit to a field sobriety test. In these cases, the testing will only serve to be used as evidence against you in court. One of the rarest, but most effective, tools a person may use when they are stopped by the police after they have been drinking is the pre-arrest test. As discussed in the pre-arrest test section, North Carolina allows a person to be transported, un-arrested, to provide a breath sample. As this is a rarely exercised right, many police officers are unsure of the procedures that they must follow when a person requests a pre-arrest test. If the police officer doesn't follow the procedures correctly, or unlawfully places you under arrest after you request a pre-arrest test, you may be able to win your case in court. Even once you are transported to a location to provide a breath sample, you may refuse to exercise the pre-arrest test. At this point, the officer will have to decide whether they want to arrest you and how to best proceed in collecting evidence against you. This will inevitably pose difficulties for the officer. If you are arrested roadside and transported to provide a sample of your breath, always request that a witness come observe your test. You are provided this right and a witness may observe you give your breath sample if they are able to get to the testing site fast enough. In no case will the testing procedures be delayed more than 30 minutes when you request that a witness come observe your test. If, however, a witness arrives in time to see your test, and is denied the ability to come watch you blow, you may have established a defense as your rights may have been violated. Requesting a witness may also provide you with a little more time to try and sober up. If you are on the cusp of a .08, time is important. If you suffer from gastroespphageal reflux disease (GERD), and this affected you ability to provide an adequate breath sample, you also may be able to establish a defense against your DWI charge. Burping before your breath test, or digestive conditions, such as GERD, may lead to the presence of residual mouth alcohol. Residual mouth alcohol occurs when alcohol you have digested is burped up into the mouth. Residual mouth alcohol will substantially alter the results of any breath test that you submit to. It is important to note if you suffer from digestive conditions or remember burping before providing a breath sample. If you are arrested for DWI, you are processed through jail and released as fast as possible. This is because you have the statutory right to seek an independent chemical analysis upon your release. After being released, you may go to a hospital or other alcohol testing facility and pay to have your own independent alcohol test. You may use the results as evidence of your alleged BAC. If possible, do seek to go to a hospital to get an independent blood alcohol test immediately upon your release. Although this may only serve to confirm the results taken by the police, at least you have an independent test that may prove your BAC was lower than the state is alleging. Also be sure to note if you aren't released soon after your arrest and subsequent testing. This may set the grounds for a defense for a Knoll Motion. If you aren't released soon after your DWI arrest, you aren't able to seek your independent chemical analysis, and thus you were deprived of your statutory rights. As with any legal issue, it is important to document exactly what happened to the best of your recollection as soon as you are able to. This will help strengthen your defense. Ultimately, it is your decision as to what is best for you if you have been stopped by the police and having been drinking. If you do drink before you drive, even the occasional one or two drinks at a social event, you need to be educated as to your rights so you are able to make an informed decision. I can't advise you directly whether you should take a specific test or not. I will say, based on over a thousand DWI investigations and hundreds of DWI arrests, it is usually best to avoid admitting to anything, avoid taking any tests, and avoid saying much at all. The best strategy is to be polite, respectful, and assertive as to your rights. Contact Adkins Law if you need to speak to a DWI attorney / DUI attorney. A DWI lawyer from Adkins Law will be happy to give you a free DWI consultation. Adkins Law offers DWI representation in Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, Iredell County, Gaston County, Cabarrus County, and the Lake Norman area.
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Contact Adkins Law to speak with an experienced Huntersville DWI attorney about your DWI charge. One of our Huntersville DUI lawyers will arrange a DWI consultation with you to discuss your strategies and options moving forward. Contact Adkins Law to speak with an experienced Huntersville DWI attorney about your DWI charge. One of our Huntersville DUI lawyers will arrange a DWI consultation with you to discuss your strategies and options moving forward. The NHTSA SFST battery is the standard for driving while impaired field sobriety testing. The SFST battery consists of three tests: (1) the horizontal gaze nystagmus (HGN) test, (2) the walk and turn (WAT) test, and (3) the one leg stand (OLS) test. The WAT and OLS require you to be able to walk, stand, and balance as a normal person would. If you are mobility impaired, you may not be able to complete the WAT and OLS portions of the NHTSA SFST battery. Historically, DWI police officers have relied exclusively on their observations and the HGN when making a DWI arrest of a mobility impaired person. Recently, however, police officers have been using NASBLA training to conduct a seated field sobriety test for mobility impaired subjects. The NASBLA field sobriety battery is patently different than the NHTSA SFST battery. The NASBLA field sobriety battery includes the following tests: (1) HGN, (2) finger to nose test, (3) palm pat test, and (4) hand coordination test. The battery is designed to detect boating while impaired (BWI) / boating under the influence (BUI) suspects and all tests are conducted from a seated position. Since the tests are conducted from a seated position, the NASBLA tests are supposedly applicable to detect DWI / DUI suspects. The problem with applying NASBLA tests to DWIs is that there is no study to prove their validity. In 2008, a study was conducted by NASBLA and the U.S. Coast Guard entitled “Validation of Standardized Field Sobriety Tests For Use in the Marine Environment.” The purpose of the study was to validate SFSTs for BWI / BUI enforcement in the marine environment. Due to balance, stability, and equilibrium issues that boaters may face, law enforcement realized that roadside SFSTs were not adequate to test for BWI. The NASBLA study shows that the NASBLA waterborne SFSTs are more accurate in testing for BWIs than traditional NHTSA roadside SFSTs. Since the study only focused on BWI enforcement, it was only validated for the marine environment. When a police officer attempts to use a NASBLA test to detect a roadside DWI suspect, that officer is using an unproven testing system. To reiterate, NASBLA tests have only been validated for use in the marine environment and are not proven to be effective to detect DWI suspects. Thus, NASBLA field sobriety tests should hold very little weight when used to prove that a mobility impaired suspect as DWI. If you were charged with DWI and would like to speak to a Huntersville DWI attorney, please contact Adkins Law. Adkins Law is located in Huntersville NC and primarily serves Mecklenburg County and the Lake Norman area. A review of the top four items that a police officer looks for to initiate a traffic stop in the Huntersville and Lake Norman area. Learn these items and ensure that they are valid and fixed before you drive in Huntersville, Cornelius, Davidson, and the Lake Norman area. OVERVIEW If the police want to stop a vehicle, most times they can find a reason. This may require the police following your for several blocks or miles, but they usually can find a reason. Whether this reason constitutes reasonable suspicion to justify the stop is another matter. In order for the police to legally be able to stop you, they must have at least reasonable suspicion. Some people refer to this as reasonable, articulable suspicion or just simply RS. While the police may have probable cause to stop you, which is a higher standard than reasonable suspicion, all that is required to justify the stop is reasonable suspicion. Without reasonable suspicion for the stop, any evidence seized or arrest made pursuant to the stop is unconstitutional. LICENSE PLATE / TAG When a police officer is behind you in traffic, or even in the close vicinity of your vehicle, it is very possible that they are running your tag. It's kind of like fishing for a police officer: you run enough tags and eventually you are going to get a bite. North Carolina courts have ruled that because license tags are open to public view, a driver has no reasonable expectation of privacy in his tag, and thus a police officer may run your tag without reason. When the officer runs your tag, he enters it into the computer in his vehicle, which determines whether the license plate is current, matches the vehicle, and provides information concerning vehicle inspection. If anything is wrong with the vehicle, the officer is justified in conducting a traffic stop to further investigate. Based on the investigation, the officer may issue a citation or develop probable cause for an arrest. DRIVERS LICENSE Running a license tag will also give an officer information on the registered owner of the vehicle. The officer is made aware of the license status of the registered owner and whether that person has any outstanding warrants. By comparing the description of the registered owner provided by DMV to the description of the person driving the vehicle, the officer is justified in making a traffic stop. Upon investigation, if the driver is determined to be the registered owner with a defective license or warrant, the officer may issue a citation or make an arrest. TRAFFIC VIOLATION If an officer gets behind you and is looking for a reason to initiate a traffic stop, he will probably follow you for a while to see if you violate a traffic law. The officer is usually waiting for you to commit a common traffic violation such as changing lanes without signaling (if you aren't clear to do so), speeding (usually more than 5mph above the posted speed limit), or failing to come to a complete stop at a stop sign. According to the United States Supreme Court, even if the officer wants to make a stop based on a pre-textual basis, as long as the officer has reasonable suspicion to make the stop, the stop is valid. In other words, if an officer thinks you are DWI / DUI and the true reason for his stop is to investigate the DWI, as long as he has some reasonable suspicion to make a traffic stop, the stop will be upheld as valid. VEHICLE EQUIPMENT The big items an officer looks for here are window tint, improper display of tags and license plate stickers, and broken headlights or taillights. An officer may also look for such things as excessively loud mufflers or worn tires. If the officer wants to stop you, he will look hard to find a reason and a defect in your vehicle. CONCLUSION To put it simply, if a police officer wants to make a traffic stop on a vehicle, it is usually pretty easy to find a reason. The officer may have to follow you for a while, but the chances are that you won't be able to drive perfect forever. A lot of courts frown upon officers who follow citizens around looking for a reason to stop them. There is something un-American about following citizens around, interfering with their freedom of movement, and waiting for them to commit a traffic violation. The best thing you can do is ensure that your license, license plate, and vehicle are all valid, updated, and in good order before you drive. When an officer gets behind you and appears to be looking for a reason to initiate a traffic stop, do your best to obey all traffic laws and not to speed. You may want to pull over, park, and walk in a business if the officer appears to be obstructing your freedom of movement and making you nervous. Most police officers are good people and are looking out for your best interests. They're still quick to write you a citation and / or arrest you if they believe you've violated the law. Take precautions to protect yourself! Contact Adkins Law to schedule a free DWI consultation with an DWI lawyer, DUI lawyer, DWI attorney, DUI attorney. Adkins Law is located in Huntersville, North Carolina and primarily serves Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, Iredell County, Gaston County, and Cabarrus County. The Standardized Field Sobriety Testing (SFST) battery consists of three tests: (1) Horizontal Gaze Nystagmus (HGN), (2) Walk and Turn (WAT), and (3) One Leg Stand (OLS). These tests help the officer to determine impairment and establish probable cause for arrest. HORIZONTAL GAZE NYSTAGMUS (HGN) Horizontal Gaze Nystagmus (HGN) is an involuntary jerking of the eye, which is exaggerated when a person is under the influence of alcohol. During the HGN test, the officer will observe the eyes of a suspect as they follow a stimulus (such as a pen or small flashlight) held 12 to 15 inches in front of them. As the stimulus is moved horizontally, the officer looks for three indicators of impairment in each eye. The officer looks to see if (1) the eye cannot follow a moving object smoothly, (2) if jerking is distinct when the eye is at maximum deviation, and (3) if the angle of onset for the jerking is within 45 degrees of center. There are a total of 6 clues the officer is looking for, 3 in each eye. If the officer detects 4 or more clues, research suggests that there is an 88% chance that the suspect has a BAC of at least 0.08. WALK AND TURN (WAT) The Walk and Turn (WAT) test is a divided attention test, which requires a suspect to listen and follow instructions while performing a physical act. People who are impaired have difficulty performing tasks that require dividing their attention between simple mental and physical exercises. The WAT requires a suspect to take 9 steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn around on one foot and take 9 steps back, heel-to-toe, along the same straight line. The WAT has a total of 8 clues the officer is looking for: (1) Can't keep balance while listening to instructions, (2) Starts too soon, (3) Stops walking to steady self / regain balance, (4) Misses heel-to-toe, (5) Steps off the line, (6) Use arms for balance or raises arms over 6 inches, (7) Improper turn (loses balance, stumbles, or turns in a way other than officer demonstrated), and (8) Incorrect number of steps performed. Research suggests that when a suspect demonstrates 2 or more of the 8 clues, there is a 79% probability that the suspect will have a BAC of at least 0.08. ONE LEG STAND (OLS) The One Leg Stand (OLS) is another divided attention test. The OLS requires the suspect to stand with one foot approximately 6 inches off the ground while counting out loud by thousands. The suspect will not be told how long the test lasts and will be required to continue until requested to put his foot down. The officer will time the suspect for a period of 30 seconds. In the OLS, the officer will look for the following 4 clues of impairment: (1) Sways while balancing, (2) Uses arms to balance or raises arms over 6 inches, (3) Hopping, and (4) Putting their foot down before the 30 second period elapses. If the suspect puts their foot down 3 times, they are unable to perform the test. NHTSA research suggests 83% of suspects who display 2 or more clues have a BAC of at least 0.08. Contact Adkins Law to schedule a free DWI consultation with an DWI lawyer, DUI lawyer, DWI attorney, DUI attorney. Adkins Law is located in Huntersville, North Carolina and primarily serves Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, Iredell County, Gaston County, and Cabarrus County. Drinking and driving is NOT illegal; driving while impaired is. It is almost unavoidable to occasionally have a drink in a social setting and drive home afterwards. Understand, however, that driving while impaired is dangerous and may cause you to lose your license, your job, and your reputation. DO NOT ADMIT TO ANYTHING When you are stopped by the police, often times they will ask you if you have been drinking. Almost everyone tells the officer they have had two drinks. While it is never advisable to outright lie to the police, be careful what you admit to! If you tell the police that you had two drinks, you just admitted to drinking before driving. Try to avoid answering questions such as this if a police officer asks you. Instead, try to change the subject or simply do not answer. You do not have to answer the police! Remember, all you are doing when you tell the officer how much alcohol you have consumed before driving is helping the officer build his case against you. If you really have only had one or two drinks, however, and know you aren't impaired, it is probably advisable to answer the officer. DO NOT TAKE ANY STANDARDIZED FIELD SOBRIETY TESTS (SFSTs) Standardized Field Sobriety Tests (SFSTs) are tests which help an officer determine whether a driver is impaired. These tests do not help you! An officer would not waste his time in administering the tests to you if he did not believe that he could get a potential DWI arrest out of it. When you submit to these tests, unless you really are absolutely sober, all you're doing is providing the police with evidence to use against you in court. Be weary before you submit to any SFSTs, you do not have to submit to them! REQUEST A PRE-ARREST TEST In North Carolina, if you are stopped by the police, you have the right to request a police officer take you to submit to a breath test before you are placed under arrest. This is beneficial because if the officer violates your right to take the pre-arrest test, or doesn't follow procedures concerning the pre-arrest test, you may be able to have your DWI charges dropped. Once you request a pre-arrest test, the police officer is supposed to stop what he is doing and transport you (un-arrested, not in handcuffs) to the nearest breath testing facility. There you will have the option to take a pre-arrest breath test before you are placed under arrest. Realistically, because it is so rarely exercised, very few police officers are familiar with the procedures concerning this right and are more likely to violate your rights. AVOID DRIVING This should be the most obvious piece of advice: if you are too intoxicated to drive, do not drive! If you have any questions as to your sobriety, play it safe and get a ride home with a friend or take a cab. Your life, other people's lives, your liberty, your property, your money, and your privilege to drive is not worth the risk! Be careful, be smart, and make good decisions. Contact Adkins Law to schedule a free DWI consultation with an DWI lawyer, DUI lawyer, DWI attorney, DUI attorney. Adkins Law is located in Huntersville, North Carolina and primarily serves Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, Iredell County, Gaston County, Cabarrus County, and the Lake Norman area. |
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