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Steven A. Tomeo & Associates, LLC

When people come into my office they are curious about why they were stopped. In many instances the police officer never tells them the reason for the stop. However, when a police officer considers pulling the operator of a motor vehicle over he must make certain determinations. The National Highway Traffic Safety Administration course teaches police officers that they must decide whether there is sufficient cause to stop the vehicle, either to conduct further investigation to determine if the suspect may be impaired or for another traffic violation. Police officer is not committed to arresting the suspect for DUI/DWI based on this initial observation, but rather should concentrate on gathering all relevant evidence that may suggest impairment. Your second task during this phase which the National Highway Traffic Safety Administration calls DWI Detection Phase 1, is to observe the manner in which the suspect responds to your signal to stop, and to note any additional evidence of a DUI/DWI violation. I would also like to note that many people tell me that the police officer follow them for a substantial period of time. I do not think that there is any question that the longer a police officer follows you the more likely you are to give them some indication to pull you over. The probabilities are in their favor and not yours.

I. Vehicle in Motion

The first task is observing the vehicle in motion which begins when the police officer sees you in your car. His attention may be drawn to the vehicle or you by such things as: a moving traffic violation; an equipment violation; an expired registration or inspection sticker; unusual driving actions, such as weaving within a lane or moving at slower than normal speeds; or “evidence of drinking” or drugs in vehicle. Many people touch the “fog line” or they may go over the center line, their light might be out or they commit some other type of traffic violation. When a police officer notices one of these variances or traffic violations he has three (3) choices: to stop the vehicle; continue to observe the vehicle; or disregard the vehicle. The police officer is taught that people who are impaired frequently exhibit certain effects of symptoms of impairment which include the following: slowed reactions; impaired judgment as evidenced by a willingness to take risks; impaired vision; and poor coordination. What you have here is a police officer who is observing you with his eyes and trying to determine whether or not any cues indicate that you are under the influence of alcohol and/or drugs. The police officer is told and taught that the effects of alcohol on the driver lead to predictable driving violations and vehicle operating characteristics. Never mind that you may have these characteristics without taking a drink. The fact of the matter is that between certain hours when you exhibit these characteristics and/or cues and a police officer sees you, you are likely to be pulled over by him. Remember, the police officer is playing with house rules. It is like he is the casino and knows that you are going to lose if you drink and drive. You may exhibit these cues without drinking but the facts remain that you will be pulled over. The time of the day, the visual cues that the officer observes and other factors play into you being pulled over. Police Officers are taught that at certain blood alcohol concentration levels you exhibit slowed reactions, increased risk taking, impaired vision, and poor coordination. The police officer is policing the streets. He is told that he is protecting society. He is protecting society. He is not claiming to be perfect and no one is suggesting that he is perfect. However, he is given the responsibility to act under certain situations. The police officer is taught to look for people who are turning with a wide radius or are straddling the center or lane markers. He is also taught that there are certain appearances that he must be concerned with and they are eye fixation, tightly gripping the steering wheel, slouching, in the seat, gesturing erratically or obscenely, having your face close to the windshield, drinking in the vehicle, or the drivers head protruding from the vehicle. Other visual cue descriptions include almost striking an object or a vehicle, weaving, and driving on other than the designated roadway. Weaving occurs when the vehicle alternately moves toward one side of the roadway and then the other creating a zig zag course. When driving on other than the designated roadway, the vehicle is observed being driven on other than the roadway designated for traffic movement. An example is as follows: driving at the edge of the roadway, on the shoulder, off the roadway entirely, and straight through turn-only lanes or areas. Swerving is something that a police officer looks for. A swerve is an abrupt turn away from a generally straight course. Sometimes an officer will pull you over for driving at a speed that is slower than ten (10) miles/hour below the limit. This may not be illegal; however, the police officer is given the right to decide whether there is a problem, the operator may be in some form of distress or there is a malfunction in the automobile. He also has the right to think that maybe the operator is lost and needs assistance. When a vehicle stops in a lane for no apparent reason or follows too closely or drifts, this gives rise to the officer having a visual cue that triggers in his mind the driver being under the influence. Sometimes an officer might pull you over for tires on the center lane or lane marker, breaking erratically or driving into opposing or crossing traffic. Sometimes drivers who are under the influence exhibit slow responses to traffic signals and also signal inappropriately. A number of possibilities exist for the driver’s signaling to be inappropriate or inconsistent with the associated driving actions. This cue occurs when inconsistency such as the following are observed: failing to signal a turn or lane change, signaling opposite to the turn or lane change executed; signaling constantly with no accompanying driving action; and driving with four-way hazard flashers on. There are situations in which a driver stops inappropriately (other than in a traffic lane). This is when the observed vehicle stops at an inappropriate location or under inappropriate conditions, other than in the traffic lane. Examples include stopping: in a prohibited zone; at a crosswalk; far short of an intersection; on a walkway; across lanes; for a green traffic signal; or for a flashing yellow traffic signal. A driver may turn abruptly or illegally when he or she executes any turn that is abnormally abrupt or illegal. Specific examples include: turning with excessive speed; turning sharply from the wrong lane; making a u turn illegally; turning from outside a designated turn lane. I have had clients tell me that they have done the following: accelerated or decelerated rapidly. This cue encompasses any acceleration or deceleration that is significantly more rapid than that required by traffic conditions: one very common cue is when a vehicle is observed being driven with both headlights off during a period of the day when a use of headlights is required. The National Highway Traffic Safety Administration states that they must be concerned with similar visual effects with a person driving a motorcycle. Their training indicates that there are excellent cues with regard to motorcyclists being under the influence when any of the following occurs: drifting during a turn or curve; trouble with the dismount; troubles with balance at a stop; turning problems (e.g. unsteady, sudden corrections, late breaking, improper lean angle); an attentiveness to your surroundings; inappropriate or unusual behavior (e.g. carrying or dropping objects, urinating at road side, disorderly conduct, etc.); weaving. An excellent cue indicates a 50% or greater probability of driving under the influence alcohol and/or drugs. Some other good cues as referred to by the National Highway Traffic Safety Administration are the following: erratic movements while going straight; operating without lights at night; recklessness; following too closely; running stop light or sign; evasion; wrong way. A good clue indicates a 30-50% probability that someone is driving under the influence.

II. Personal Contact

This is considered Phase II of the process and like phases I and III, comprises two major evidence gathering tasks and one decision. The first task is that the officer will approach, observe and interview the driver while still in the vehicle in order to note any face – to – evidence of impairment. Sometimes the officer will give the driver some pre exit testing such as counting forwards and backwards, reciting the ABC’s or some type of manual dexterity test. The first thing that the officer is trained to do is to use his eyesight in order to observe the driver and to determine whether or not there is evidence of alcohol and/or other drug influence. The officer is trained to look at your eyes to see if they are bloodshot, determine if you have soiled clothing, fumbling fingers, any alcohol containers in the car, drug or drug paraphernalia in the car, bruises, bumps or scratches on the driver’s body or any other unusual actions. The officer will also use his hearing during the interview process to determine if your speech is slurred, you admit to dinking, give inconsistent responses, use abusive language or make unusual statements. The officer is also trained to determine whether or not he smells anything that would be describable as clues or evidence of alcohol and/or other drug influence. Typically these include: alcoholic beverages; marijuana; “cover up” odors like breath sprays; unusual odors. The basic purpose to the face –to – face observation and interview of the driver is to identify and gather evidence of alcohol and/or other drug influence. This is the purpose of each task in each phase of DUI detection. It is not necessary to gather sufficient evidence to arrest the driver immediately for DUI. There are a number of techniques the officer uses while the driver is still behind the wheel. Most of these techniques apply the concept of divided attention. They require the driver to concentrate on two or more things at the same time and include both questioning techniques and psychophysical (mind/body) tasks. The questioning techniques are really designed to trip you up. You will notice that when a police officer comes up to your driver side window and starts talking to you he is constantly talking, asking you questions, being very demanding and throwing so many things at you that it is hard for any person, drunk or sober, to answer the questions in a concise and cohesive method. The police officer’s questioning is purposeful and not just to make conversation. For instance, he may be asking for two things simultaneously. Or while you are looking for your license, registration, or insurance card he is asking you questions to see whether or not you can look for these items and answer his questions at the same time. These may also be considered interrupting or distracting questions. He may also ask you unusual questions. He asks an unusual questions such as “what is your middle name?”. He may ask you to recite the alphabet beginning with a letter other than A and stopping at letter other than Z. He may also ask you to count down. This technique requires you to count out loud fifteen or more numbers in reverse sequence. Finally he may ask you to do a finger count. In this technique you are asked to touch the tip of your thumb in turn to the tip of each finger on the same hand while simultaneously counting up 1, 2, 3, 4; then to reverse the direction on the fingers while simultaneously counting down 4, 3, 2, 1. After the police officer has gone through all of this he then makes a decision as to whether or not he wants you to exit the vehicle. When you exit the vehicle he will be watching you get out and walk from the vehicle and your actions or behavior during the exit sequence, which may provide important evidence of impairment. He is trained to determine whether or not you show angry or unusual reactions; cannot follow instruction; cannot open the door; leave the vehicle in gear; “climbs” out of the vehicle; leans against the vehicle; or whether or not you keep your hands on the vehicle for balance.

III. Pre-Arrest Screening

Like phases I and II, DUI Detection Phase III, Pre-Arrest Screening, has two major evidence gathering tasks and one decision. The first task in Phase III is to administer three sobriety tests which are known as the Standard Field Sobriety Tests (SFT). Based on these tests and all other evidence from Phase I and II, the officer must decide whether there is sufficient probable cause to arrest the driver for DUI. I will say at this point that in my opinion, once you are asked to get out of the vehicle YOU WILL BE ARRESTED. The Standard Field Sobriety Tests are called Divided Attention Tests. The concept of divided attention has been applied to psychophysical testing. Field sobriety tests that simulate the divided attention characteristics of driving are being developed and are being used by police departments nationwide. The best of these tests exercise the same mental and physical capabilities that a person needs to drive safely: information processing; short term memory; judgment and decision making; balance; steady, sure reactions; clear vision; small muscle control; coordination of limbs. I want you to stop at this point. This is not me talking but the National Highway Traffic Safety Administration telling you what you need to have in order to be able to drive properly. Any test that requires a person to demonstrate two or more of the aforesaid capabilities simultaneously is potentially a good psychophysical test according to the National Highway Traffic Safety Administration. The three major tests that are given are the Horizontal Gaze Nystagmus Test, The Walk and Turn Test and The One Leg Stand test. The Walk and Turn test and the One Leg Stand Test are the two divided attention field sobriety tests that have proven accurate and effective in DUI Detection according to the National Highway Traffic Safety Administration.

Walk and Turn Test

The Walk and Turn Test is a test that has been in existence for many years. It has an instructions stage; and a walking stage. In the Instructions stage you must stand with your feet in heel to toe position with your arms at your sides and listen to the instructions. The Instructions stage divides the subject’s attention between a balancing task and an information processing task. In the Walking stage you take nine heel to toe steps, turn in a prescribed manor, and take nine heel to toe steps back while counting the steps out loud, while watching your feet. During the turn, the subject keeps his front foot on the line, turns in a prescribed manor, and uses the other foot to take several small steps to complete the turn. The walking stage divides the subject’s attention among a balancing task (walking heel to toe and turning); a small muscle control task (counting out loud); and a short-term memory task (recalling the number of steps and the turning instructions). The Walk and Turn test is administered and interpreted in a standardized manor, i.e. the same way every time. Officers administering the Walk and Turn test observe your performance for eight clues: 1. can’t balance during instructions; 2. starts too soon; 3. stops while walking; 4. doesn’t touch heel to toe; 5. steps off line; 6. uses arms to balance; 7. loses balance on turn or turns incorrectly; 8. takes the wrong number of steps. Inability to complete the Walk and Turn test occurs when you step off the line three or more times; are in danger of falling; or you cannot perform the test. The National Highway Traffic Safety Administration states that if you exhibit two or more of the clues, or cannot complete the test, you are likely to have a Blood Alcohol Concentration above the allowable.

One Leg Stand Test

The One Leg Stand Test also has been validated through the National Highway Traffic Safety Administration’s research program. It consists of two stages: Instructional Stage and Balance and Counting Stage. In the Instruction stage, you must stand with your feet together, arms at side, and listen to instructions. In the Balance and Counting stage, you must raise one leg, either leg, approximately six inches off the ground, toes pointed out, keeping both legs straight. While looking at the elevated foot, count out loud in the following manner: “ one thousand and one”, “one thousand and two”, “one thousand and three” until told to stop. This divides your attention between balancing (standing on one foot) and small muscle control (counting out loud). The timing for a thirty second period by the officer is an important part of the One Leg Stand Test. The One Leg Stand Test is administered and interpreted in a standardized manner. The officer carefully observes your performance and looks for four specific clues: 1. sways while balancing; 2. uses arms to balance; 3. hops; 4. puts foot down. The inability to complete the One Leg Stand Test occurs when you: 1. put your foot down three or more times, during the thirty second period; or 2. cannot do the test.

Horizontal Gaze Nystagmus

The Horizontal Gaze Nystagmus Test. This test refers to an involuntary jerking occurring as the eyes gaze toward the side. In addition to being involuntary the person experiencing the nystagmus is unaware that the jerking is happening. Many authorities state that this test is the most reliable field test. In administering this test, the officer has you follow the motion of a small stimulus with your eyes only. The stimulus may be the tip of a pen or pen light, an eraser on a pencil or your fingertip, whichever contrasts with the background. When the HGN test is administered the officer is supposed to always begin with your left eye. 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?
  2. When the eye moves as far to the side as possible and is kept at that position for several seconds, does it jerk distinctly?
  3. As the eye moves toward the side, does it start to jerk prior to 45 degree angle?

As a person’s Blood Alcohol Concentration increases we are told that it is more likely that these clues will appear. In Connecticut after all of these phases are completed you will be arrested and taken to the police station where you will be asked to submit to a breath, blood or urine test. If you are suspected of drinking alcohol the officer will ask you to take a breath test. If you take the first test and no alcohol or a slight amount of alcohol appears on the test reading, the officer may ask you to take a urine test because he will suspect you have been using drugs. It is a rare case in which the officer asks for a blood test. The reason for not asking for a blood test is because it is the most difficult test to administer. The officer must take you to a hospital, ask the people at the hospital to draw a sample of your blood and a lot of people, especially police officers, do not want to go through all of this. It is very time consuming and often times the hospitals do not want to draw blood when it is not medically necessary. I also want to tell you that it is my experience that even if you test 0 YOU WILL BE ARRESTED!

More Information

Indicators of Drug Impairment

Charts that indicate the physical sings that humans show when under the influence of drugs.

Standardized Field Sobriety Tests and Strict Compliance

National District Attorneys Association article that discusses SFST.

Admissibility of Horizontal Gaze Nystagmus Evidence (pdf)

A publication which discusses the pros and cons of this field sobriety test.

STEVEN TOMEO, ESQ.

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