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Another North Carolina driver has been charged with driving while impaired after an alcohol test registered 0.0 percent alcohol concentration, according to the Gaston Gazette. This time, the results of a blood test reportedly are not yet available, but authorities accuse the mayor of New Bern, North Carolina of DWI.

Police say that two people reported a Chevrolet van driving erratically Monday morning. Havelock police responded to the area and stopped a Chevy van on U.S. 70 shortly before 7:45 in the morning. Officers apparently requested the driver to perform roadside field sobriety tests based upon his alleged driving conduct. Officials claim that the Mayor did not perform well enough to pass the tests. The officer apparently also believed that the mayor was “acting funny,” according to the Gazette. He was taken into custody on suspicion of DWI.

The man reportedly took a Breathalyzer test, which reportedly showed that the man had no alcohol in his system. Authorities claim that the man submitted a blood sample for further toxicology testing, the results of which have not been completed. The Mayor appeared before a magistrate who reportedly found probable cause to support DWI charges.

The Mayor told the Gazette that he had overslept Monday morning and was running late. During the roadside tests the Mayor says that he could not perform a balancing test due to his progress recovering from hip replacement surgery in November.

North Carolina law allows authorities to bring drunk driving charges based upon an alcohol reading measuring 0.08 percent or greater. But, authorities may also accuse a person of driving drunk based upon an officer’s observations of driving conduct and of a person’s performance in field sobriety tests. But, FSTs are not foolproof. Generally, North Carolina drivers may also be charged with driving while impaired by drugs.

Source: Gaston Gazette, “NC mayor accused of DWI, disputes charge,” New Bern Sun Journal, May 6, 2013

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A woman in New Hanover County, North Carolina says that she is facing charges for allegedly driving while impaired based solely upon an agility test that she was subjected to at the hospital after she was involved in a car accident. The woman does not remember what occurred in the wreck. The air bag on her car deployed and the woman suffered a concussion in the wreck.

The woman says that a North Carolina trooper gave her a breath test at the hospital, which she passed. But she says that the trooper did not like how she performed on a field sobriety test after she sustained the concussion. Apparently, the trooper claims that the woman did poorly in tracking his finger while she lay in a hospital bed. What is more, she says that her hospital records show that she did not have any alcohol or drugs in her system.

Law enforcement took a blood sample for purposes of a drunk driving investigation. Test results may not come back from that test for up to a year. Meanwhile, the woman is charged with DWI and she is scheduled to appear in court later this month.

Followers of this blog may recognize that car accident investigations lead from time to time to drunk driving charges. Law enforcement may subject an accident victim to field sobriety tests after a wreck a jump to the conclusion that a victim’s performance on one or more tests may not be up to the satisfaction of the officer. In the recent New Hanover County case, the woman reportedly says that she has tests to show that she was not under the influence when she was in a wreck.

Typically, news reports on an alleged drunk driving car accident are generated by government actors and carried in the press. Although there may be two sides to a story, a person suspected or accused of a crime has the right to remain silent. Most defendants do not speak to the press about an offense, as anything a person says may be used in court.

Our constitutional system acknowledges the freedom of the press, often as an important check on government power. But our constitutional system also guarantees numerous due process and other rights for people accused of a crime. Criminal defense lawyers argue in court to protect those rights, and the right to a criminal defense is important check on government power to maintain the integrity of our system.

Source: WECT, “Hospital tests negative, woman still charged with DWI,” Ashlea Kosikowski, updated April 6, 2013

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Roadside field sobriety tests ("FSTs") are commonly used by police officers in DUI investigations to determine whether a driver is under the influence of alcohol. Typically, they consist of a battery of 3-5 excercises, such as heel-to-toe, one-leg stand, "nystagmus" ("follow the pencil with your eyes"), finger-to-nose, alphabet recitation, "Rohmberg" (eyes-closed, modified position-of-attention), etc. The officer will subjectively decide whether the individual "failed".

These DUI tests have an aura of scientific credibility to juries. Unfortunately, however, they have no real basis in science and are almost useless in a drunk driving case.

First, as any traffic officer or DUI attorney knows, the decision to arrest is made at the driver’s window; the FSTs given supposedly to determine probable cause to arrest are actually for the purpose of providing "evidence" to support the officer's opinion of intoxication.

Second, since the officer has already made up his mind, his subjective decision as to whether a person passed or failed field sobriety tests is suspect: as with any human, he will "see" what he expects to see.

Third, the conditions under which the field sboriety tests are taken almost guarantee failure: usually late at night, possibly cold, along a graveled or sloped roadside, with bright headlights from passing cars (setting up wind waves), the officer’s flashlight and patrol car’s strobe and headlights providing the lighting — and given to a person who is nervous, frightened and completely unfamiliar with the tests.

Fourth, field sobriety tests are irrelevant and, in fact, designed for failure. What scientific basis exists to validate FSTs in a DUI investigation? Only a "study" by a private business firm, the "Southern California Research Institute", with a grant from the federal government to find a "standardized" battery of usable DUI tests.

To earn their money, SCRI came up with three tests which, they said, were not foolproof but were much better than all of the other FSTs that were being used. These three tests were heel-to-toe, one-leg-stand and nystagmus.  Yet after some study even this company concluded that, using the three standardized tests, 47 percent of the subjects tested would have been arrested for DUI — even though they were under the then-.10% limit.  Burns and Moskowitz, Psychophysical Tests for DWI Arrest: Final Report, DOT-HS-802-424, NHTSA, 1977.

Unhappy with this, the federal government sent the company back to the drawing board and, in 1981 the firm came up with some better figures: only 32 percent of those who "failed" the tests were actually innocent. (Tharp, Burns and Moskowitz, Development and Field Sobriety Test of Psychophysical Tests for DWI Arrests: Final Report, DOT-HS-805-864, NHTSA, 1981.) Thus, SCRI was paid to put their stamp of approval on a set of field sobriety tests.

But what has been the reaction of the (non-profit) scientific community? In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink and drive". Unknown to the officers, the blood-alcohol concentration of each of the 21 DUI subjects was .00% — stone sober.

The results: the officers gave their opinion that 46% of these innocent people were too drunk to drive! In other words, the field sobriety tests were hardly more accurate at detecting intoxication than flipping a coin. Cole and Nowaczyk, "Field Sobriety Tests: Are they Designed for Failure?", 79 Perceptual and Motor Skills Journal 99 (1994).
 

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Proponents of the so-called “standardized” field sobriety tests (SFSTs) have long pointed to field studies which indicate a high correlation between performance on the tests and actual blood alcohol concentrations (BAC).  A new study now calls those conclusions into question.

Originally, the National Highway Traffic Safety Administration (NHTSA) paid a private group, the Southern California Research Institute, to conduct studies to find which among the various field sobriety tests used by police were most effective and to develop a standardized 3-test battery.  SCRI subsequently reported to NHTSA that a battery of walk-and-turn, one-leg-stand and nystagmus provided a strong correlation with breath test results.

Confronted with questions about those conclusions, NHTSA later commissioned the same researcher who had conducted the original studies, Marcelline Burns, to  corroborate the accuracy of her own findings.  Burns accompanied a small number of San Diego police officers conducting actual DUI investigations in the field.  After administering the SFSTs, the officers were asked to guess whether suspects had blood alcohol  concentrations (BAC) over or under .08%.   Burns reported a 91% correlation between SFSTs and BAC over-under estimates, arguably validating the battery of tests she had helped create.

A subsequent scientific article called Burns’ conclusions into question.  In Hlastala, Polissar and Oberman, “Statistical Evaluation of Standardized Field Sobriety Tests”, 50(3) Journal of Forensic Sciences 1, the raw data used in the validation study were obtained from NHTSA through the Freedom of Information Act.  The methodology used was then reviewed and the data subjected to statistical analysis.

The methodology was found to be seriously flawed in a number of respects.  For one thing, many of the suspects had very high BACs, making estimates of whether a suspect was over .08% obvious regardless of SFST performance.  For another, there was no attempt to isolate the influence of SFST performance from other factors:  officers estimated BACs after the field sobriety tests, but they also took into account earlier observations, such as erratic driving, slurred speech, odor of alcohol, flushed face, admissions as to amount of alcohol consumed, etc.

The most glaring defect in Burns’ corroborative study was that “all police officers  participating in the study were equipped with NHTSA-approved portable breath testing devices”.  In other words, the San Diego officers already had the results of portable breath tests when they were asked to estimate the BACs later obtained at the station!

After reviewing the flawed methodology, the raw data was then statistically analyzed.  The conclusions:

If we consider three ranges of MBAC [measured blood alcohol content], 0.00% to 0.04%, 0.04% to 0.08%, and 0.08% to 0.12%, the officers’ EBAC [estimated blood alcohol content] overestimated the MBAC 76%, 67% and 48% of the time, and underestimated it 14%, 26% and 28% of the time. 

In other words, officers relying upon field sobriety tests were far more likely to overestimate  BACs than underestimate — particularly with those suspects having low BACs. 

(T)he utility of the SFST depends very much on how intoxicated an individual is.  Accuracy (and specificity) are low when individuals are close to 0.08% MBAC, but if the individuals are quite intoxicated, such as above 0.12%, then accuracy is high.

In other words, in borderline cases involving persons at or under the legal limit, officers were very poor at estimating levels over .08% based upon SFSTs.  And it is these cases, of course, that are critical.  Suspects with high BACs are relatively easy to single out without the help of field tests; it is for the closer cases, particularly those who are innocent (below .08%), that the SFSTs are designed.  And it is with these very cases that the tests apparently fail. 

Put another way, accuracy in using field sobriety tests is high when they are not needed — and low when they are. 
 

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The purpose of "field sobriety tests" (FSTs) is, of course, to determine if a driver is under the influence of alcohol. Rather than let the officer arrest anyone he wants, the tests supposedly provide objective evidence of impairment from alcohol.     

The usual DUI investigation includes the administration of 3 FSTs to the driver.  Commonly, this consists of the 3 "standardized" FSTs (SFSTs) recommended by the National Highway Traffic Safety Administration: walk-and-turn, one-leg-stand, and horizontal gaze nystagmus (the "eye test").  If some cops aren’t happy with the results, they may administer one or two more tests, hoping that the suspect will finally fail one of them.  

And then again, some cops just ignore the evidence…

Tennessee: Improper to Arrest Someone for Passing DUI Test

Knoxville, TN.  Sept. 5 — A Tennessee motorist who passed six roadside sobriety tests should not have been arrested for driving under the influence of alcohol (DUI), the state Court of Criminal Appeals ruled Friday. The three-judge panel rejected the attempt by prosecutors to overturn a trial court’s finding that David D. Bell should not have been taken into custody on January 12, 2010 after he displayed "excellent" mental acuity after being pulled over by a county sheriff’s deputy.

Bell had made a wrong turn in a construction area, briefly driving on the wrong side of the road — a mistake that a number of other confused drivers had made that day. Sevierville Police Officer Timothy Russell, who had extensive DUI training, arrived on the scene to take over from the deputy. Russell asked Bell to perform a four-finger count; say the alphabet from the letter G to S; identify the year of his fifth, sixth or seventh birthday; perform a one-legged stand while counting to thirty; and do a nine-step walk-and-turn. On the stand, Officer Russell testified that his mental performance was excellent, but that Bell "did not plant and turn as I had instructed him to." So Russell placed Bell under arrest.

Officer Russell admitted he did not follow proper procedure by turning off his flashing blue lights, which is a known source of distraction for the plant-and-turn test. After reviewing dashcam video from that night, the trial judge rejected Officer Russell’s conclusion.

"I honestly think that he did pretty dog-gone good on the field sobriety tests, better than most I’ve seen," Sevier County Circuit Court Judge Rex Henry Ogle observed. "I couldn’t pass them as well as he did."

Judge Ogle found the initial traffic stop legitimate but granted a suppression motion because the arrest went too far. The three-judge appellate panel also reviewed the videotape and sided with the trial judge. The appeals court found ample reason to suspect Bell might have been intoxicated, but the probable cause evaporated after testing.

"We interpret the slightly more colorful comments made by the trial court in its ruling from the bench on the defendant’s suppression motion as a finding, as a factual matter, that the defendant passed all of the field sobriety tests that he was given," Judge John Everett Williams wrote for the three-judge panel. "The state is not required to perform field sobriety tests on an individual prior to arresting him or her for driving under the influence. However, if the state chooses to administer such tests, it may not simply disregard the results if the individual involved performs them successfully. Had the defendant failed any of the field sobriety tests, we have no doubt that the state would have argued that the defendant’s failure provided strong evidence in support of probable cause. We believe that the defendant’s consistent success on a battery of such tests is likewise compelling evidence — in the other direction."

To paraphrase the great Humphrey Bogart film, Treasure of the Sierra Madre…"FSTs? FSTs!  I don’t need no stinkin’ FSTs!"
 

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I’ve written in the past about the growing practice of forcibly taking blood from a drunk driving suspect, sometimes done by a cop in the field.  See, for example, Taking Blood by Force, Forced Blood Draws by Cops: Constitutional?, Forced Blood Draws by Cops Spreading, Blood Draws in the Back Seat by the Dashboard Light and Forced Blood Draws: Citizen Backlash?.   

Here’s a new tactic: threaten the suspect with strapping him down and painfully jabbing a needle into him (however many times it takes to get a blood sample)…unless he agrees to "voluntarily" take a breath test.

Texas Blood Test Aims at Drunk Drivers

Wall Street Journal, Dec. 11 —  Texans arrested for drunken driving should be prepared to give blood this holiday season.

Cities and counties across the state are increasingly demanding that drunken-driving suspects who refuse to take breathalyzer tests submit to blood tests that measure the amount of alcohol in their systems.

The blood-test policy—dubbed "no refusal" by law-enforcement officials, because it prevents drivers from refusing to provide evidence of intoxication—has grown from a novel procedure used in a few Texas jurisdictions to an initiative used by police statewide, particularly during weekends and holidays when drunken driving is most common. The no-refusal initiative has also caught on in other states, including Florida, Illinois, Louisiana and Missouri…

Texas courts have uniformly upheld the constitutionality of mandatory blood testing, attorneys said. But criminal-defense lawyers say such mandatory tests trample suspects’ rights to be free from unreasonable searches and seizures. "It’s an erosion of civil liberties," said Austin defense lawyer Samuel Bassett. "If we can poke people involuntarily for evidence, where do we draw the line?"…

Police are empowered to strap a suspect to a chair, if necessary, to obtain a blood sample. That allows blood to be drawn quickly—a key benefit to prosecutors because blood-alcohol concentrations dissipate over time…

In El Paso, police find that the policy actually encourages people to submit to breath tests. "We give people the option of blowing into a tube or getting poked with a needle," said Lt. Rod Liston. "People increasingly are going with the less painful option."…

Hmmm…Threatening to "poke" a suspect with a needle actually "encourages" him to submit to a breath test?  What a surprise!  But I guess this wouldn’t be "torture" using the Attorney General’s definition requiring organ failure.

So:  "Submit to a breath test…or we’ll strap you into a chair and jam needles into you."   Welcome to the War on Terrorism…I mean, Drunk Driving.
 

DUI BLOG

Roadside field sobriety tests ("FSTs") are commonly used by police officers in DUI investigations to determine whether a driver is under the influence of alcohol. Typically, they consist of a battery of 3-5 excercises, such as walk-and turn, one-leg stand, "nystagmus" ("follow the pencil with your eyes"), finger-to-nose, alphabet recitation, "Rohmberg" (eyes-closed-position-of-attention), etc. The officer may subjectively decide whether the individual "failed", or he may decide after applying federal so-called "standardized" scoring.

These DUI tests have an aura of scientific credibility. Unfortunately, however, they have no real basis in science and are almost useless in a drunk driving case.

First, as any traffic officer or DUI attorney knows, the decision to arrest is made shortly after the stop at the driver’s window; the FSTs given supposedly to determine probable cause to arrest are actually for the purpose of gathering evidence to support the officer’s opinion.

Second, since the officer has already made up his mind, his subjective decision as to whether a person passed or failed field sobriety tests is suspect: as with any human, he will "see" what he expects to see.

Third, the conditions under which the field sboriety tests are given almost guarantee failure: usually late at night, possibly cold, along a graveled or sloped roadside, with bright headlights from passing cars (setting up wind waves), the officer’s flashlight and patrol car’s strobe and headlights providing the lighting — and given to a person who is nervous, frightened, completely unfamiliar with the tests, and with unknown physical limitations.

Fourth, field sobriety tests are irrelevant and, in fact, designed for failure. What scientific basis exists to validate FSTs in a DUI investigation? Only a single "study" by a private business firm, the "Southern California Research Institute", with a grant from the federal government to find a "standardized" battery of usable DUI tests.

To earn their federal money, SCRI came up with three tests which, they said, were not foolproof but were much better than all of the other FSTs that were being used. Yet after some study even this company concluded that, using the three standardized tests, 47 percent of the subjects tested would have been arrested for DUI — even though they were under the .10% limit. (Burns and Moskowitz, Psychophysical Tests for DWI Arrest: Final Report, DOT-HS-802-424, NHTSA, 1977.)

The company was sent back to the drawing board and, in 1981, came up with some better figures: only 32 percent of those who "failed" the tests were actually innocent. (Tharp, Burns and Moskowitz, Development and Field Sobriety Test of Psychophysical Tests for DWI Arrests: Final Report, DOT-HS-805-864, NHTSA, 1981.)

Clearly, SCRI was paid to put their stamp of approval on a set of field sobriety tests.

But what has been the reaction of the (non-profit) scientific community? In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects "had too much to drink and drive". Unknown to the officers, the blood-alcohol concentration of each of the 21 DUI subjects was .00%.

The results: the officers gave their opinion that 46% of these stone sober people were too drunk to drive! In other words, the field sobriety tests were hardly more accurate at detecting intoxication than flipping a coin. Cole and Nowaczyk, "Field Sobriety Tests: Are they Designed for Failure?", 79 Perceptual and Motor Skills Journal 99 (1994).
 

DUI BLOG

How would you like to be stopped by the police anytime, anywhere, and tested on a breathalyzer — for no reason except that the cop felt like it? 

MADD Would Like to See Random Breath Tests for Drivers

Toronto, Canada.  Nov. 2 – 
If Mothers Against Drunk Driving CEO Andrew Murie has his way, drivers across Canada could be forced to take a breathalyzer test anywhere, anytime — whether police suspect drunk driving or not.

And Murie may get it…

Murie has some big backers in the random breath testing debate.

Federal Justice Minister Rob Nicholson has endorsed such a change in the law, echoing a June 2009 recommendation from the Standing Committee on Justice and Human Rights that Ottawa amend the criminal code to allow police across Canada to conduct random breath tests.

RBT would replace Canada’s current, 40-year-old way of doing things, where police can demand a breath test only if they have reason to suspect a driver is too drunk to drive.

Ottawa said it would talk to the provinces first, then consider the changes…

But RBT is a slippery slope for a “free and democratic country” such as Canada, said Nathalie Des Rosiers of the Canadian Civil Liberties Association.

Increasing police power to that point, she said, would send the truth north strong and free toward becoming a police state.

“It’s about giving the power to the police to arrest someone anywhere, anytime and subject them to a criminal investigation where they have to comply, even though there is no reasonable grounds that they’ve done anything wrong,” said Des Rosier.  

This is a logical progression in the long series of drunk driving laws and court decisions which have steadily eroded our Constitutional rights — here and, apparently, in Canada. Look for MADD USA to make random stops and breath tests their next legislative goal.

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