Field Sobriety Tests
Should you have been pulled over? Should you have been arrested for driving while intoxicated? The information herein is not legal advice but is merely informational so call me for a free consultation to see what I can do to help you. Why hire me? A good DWI defense requires an attorney that keeps up on changes in the law. If you have been charged or arrested for a DWI in the Springfield area, call us today for a FREE CASE EVALUATION. You won't speak with a paralegal. You'll speak directly with the lawyer that will handle your DWI case should you hire our office.
Were you charged with Driving While Intoxicated? If so, put a FORMER PROSECUTOR on your side. Tim started his legal career filing and prosecuting DWI cases. He is now a criminal defense attorney and defended countless people with their alcohol related charges including people with a single DWI offense or multiple offenses. If you've been charged with DWI, don't wait until your court date to talk with an attorney about your charge. Being pulled over for a DWI can have significant consequences. There are time limitations on fighting the loss of your driver's license. Call an experienced DWI lawyer immediately so you can fight the loss of your driver's license.
For those 21 and over, the legal limit for driving while intoxicated is .08% blood alcohol content but for those under 21, the legal limit is only .02% blood alcohol content.
If you have a CDL, the limit is lower when operating a commercial vehicle.
To stop a car, with some exceptions, the officer must have reasonable suspicion that criminal activity is afoot. What does that mean? It means more than a hunch. It means more than the driver looked at the officer as the driver was exiting a parking lot and decided to go the other way instead of by the officer. It means the officer has to be able to point to what criminal activity he/she believes has or is occurring in order to stop the individual. Speeding? Yes, that is enough. Failure to stop at a stop sign? Yes, that is enough. Drifting over the white fog line on the right side of the road? Not enough.
Without the reasonable suspicion of criminal activity, the stop has been performed illegally.
Other legal instances that may lead to the officer approaching the vehicle include a checkpoint (which I will discuss later) or an accident.
If performed appropriately, a checkpoint is legal in Missouri. Proper procedures must be followed. How do you know if they were followed? They must be documented.
There must be probable cause for an arrest to be legal. Probable cause exists where the facts and circumstances would lead a reasonable person to believe that the driver is commiting or has committed a crime. Should a result above .08 aid in probable cause for an arrest? That depends on if the test is administered accurately.
Officers will generally testify that the cumulative results of their initial observations of the driver and how the driver performed on the field sobriety tests will determine whether probable cause existed to arrest the driver. As discussed herein NHTSA provides further insight on if the test results on the field sobriety tests suggest a person is under the influence.
Field sobriety tests are not always necessary for someone to be found guilty of driving while intoxicated. The person may be stumbling and so obviously drunk that the officer doesn't think it's safe for the person to perform the field sobriety tests. On the other side of this, many officers are having a person perform one field sobriety test, the HGN (that is hard to analyze given the results of it rarely show even with a dash camera of the test) and then move on to the portable breath test (PBT) which, if administered incorrectly, is not a good indicator of the amount of alcohol in a person's blood (which will be discussed below). The field sobriety tests are used to supplement the officer's belief that the individual is intoxicated. If field sobriety tests are to be given any weight by the court, they must be administered appropriately. They should be administered according to the National Highway Transportation Safety Administration (NHTSA). Officers regularly testify that NHTSA provides the standards to the standardized field sobriety tests yet there are officers that state they have never even seen the NHTSA manual. Instead thy are simply taught how to administer the tests by another officer. How then do they understand how to correctly follow the standardized procedures that are required to make the test results be as accurate as possible?
These tests, which I will discuss later, were developed through a process involving many other potential tests with the three generally used tests being what are considered the most accurate. These tests include the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (W&T) and the One Leg Stand (1LS) (pronounced as it is spelled, as opposed to the incorrect pronunciation of "one legged").
NHTSA was involved in developing these standardized field sobriety tests and for them to be administered accurately, I can't stress enough, the tests should be administered in a standardized way (i.e. the same way every time). These tests are not the best way of determining if someone is intoxicated but are designed to supplement what the officer knows about the subject he or she is testing. If performed incorrectly, what good are they? Well they are good for two things: No good and good for nothing.
This test is designed to look for nystagmus in the eyes. Nystagmus being present may be an indication that the person that is adminstered this test may be intoxicated. The purpose of this test is not to determine if you can follow the officer's finger with your eyes without moving your head but to determine if an involuntary jerking occurs in your eyes. Officers typically testify that nystagmus in the eyes creates a jerking of the eyes that is similar to the way a marble rolls across sandpaper. Where no nystagumus is present, the eyes move smoothly like that same marble rolling across glass. An attorney that handles DWI cases on a regular basis understands how this test should be executed by the officer. There are three indications of nystagmus that are looked for in each eye. Each of these indications are referred to as clues of impairment. With three clues for each eye, six clues may be found (three per eye). Often times, the test is not administered properly. Officers in Springfield, Missouri are required to have at least 8 hours of HGN training. A good DWI defense lawyer knows what questions to ask an officer to determine if the test was administered correctly. This is one of several accepted Standardized Field Sobriety Tests and for the test to be an indicator of impairment the test must be performed in a standardized way. Common problems officers have when administering this test include holding the stimulus (the thing they ask you to look at) too far or too close to your eyes, performing the test when there is other flashing lights closeby, and not holding the stimulus at the appropriate locations for the appropriate amount of time. The test should take around a minute and a half but many times is administered too quickly.
Another standardized Field Sobriety test is the walk and turn test. This test is administered by having the subject walk and turn. There are more instructions than that given to the subject. The walk and turn test requires the suspected individual to walk a series of nine steps, turn in a designated manner and walk nine steps back. The officer is looking for more clues of impairment than if the person can walk the nine steps turn and walk back. This divided attention test should be explained and demonstrated by the officer that is administering the test. According to NHTSA, for the officer to have a reasonable belief that the subject is intoxicated, there must be two out of eight clues of impairment found during this test.
During this test, the officer indicates the suspect should keeps his/her hands at their sides, lift one foot up six inches, watch that foot and count. The officer watches for the suspect to sway, lift his/her hands up more than 6 inches to keep balance, hop and/or put their foot down before being instructed to do so. The officer may also check to see if the person counts accurately. According to NHTSA, for the officer to have a reasonable belief that the subject is intoxicated, there must be two out of four clues of impairment found during this test.
Portable Breath Test (PBT). The results of this test are not admissible in court in Missouri except as used for probable cause to arrest. This device is used like the breath test that is usually later administered. The differences include that the PBT is far less reliable than the Datamaster and other more "sophisticated" instruments. If the PBT is to be taken seriously, certain conditions must be met. The main problem with the PBT being used, is that the officer does not wait the required 15 minute observation period. This must be used on the alco-sensor III because that PBT has no way of keeping mouth alcohol out of the equation for the amount of alcohol in the breath as opposed to alveolar air. If administered properly, the PBT could be used in determining if there is probable cause for an arrest, but the chances of it being used properly is slim to none.
Are you wondering what will happen with your driver's license because you received a ticket for DWI? Depending on if you refused a breath test or provided a breath sample, different actions must be taken to fight the loss of your driver's license. An experienced DWI lawyer can help. If you do nothing, your license will be suspended or revoked 15 days after you were given notice of your upcoming license suspension or revocation. Call our DWI lawyer today to find out how we can help fight the loss of your driver's license by requesting and conducting a hearing. You may qualify for a temporary driving privilege in the meantime. License suspensions may also occur based on the DWI ticket you received after it is resolved in the court system. These license suspensions may run concurrent with (at the same time as) the suspensions listed above. Contact an experienced DWI attorney to find out more information.
Refusal versus Providing a Breath Sample:
A refusal can lead to a one year license suspension and there is a deadline on the time to file a Petition with the Circuit Court to fight the license loss. Providing a breath sample can lead to a shorter suspension and the time-frame to request a hearing regarding this type of suspension is much shorter but easier to file.
For 5 and 10 year denials, a Petition must be filed in court to receive a limited driving privilege. If you would like to apply for a limited driving privilege, please call our office to schedule an appointment.
2) Substance Abuse Traffic Offender Program (SATOP). SATOP consists of two parts: (1) a screening process which determines which educational or rehabilitation program will be required and (2) the program itself. The program assigned is subject to review through the court. This means that some individuals assigned to a specific program can request a court review to determine if that particular program is required for that individual.
Additionally, with a second or subsequent DWI offense, you may be required to have an Ignition Interlock Device (IID) in any vehicle you operate. This is a device that must be blown into to register the operator of the vehicle's breath alcohol concentration (BrAC). These units are now equipped with GPS and a camera to verify the operator of the vehicle is the person blowing into the IID.
Missouri laws are strict on alcohol related driving offenses. The possible punishment for a DWI charge depends on if you have a history of DWIs and are in addition to the license suspension mentioned above. The statements below are assuming that the prior DWI/BAC offenses had resulted in a plea or finding of guilt or nolo contendre prior to the current offense occurring. Additionally, the following are for DWI offenses alleged to have occurred after January 1, 2017. If your alleged driving while intoxicated incident occurred before that date, please call our office for a free consultation. Mr. Brown will meet with you and discuss the consequences based on the law prior to January 1, 2017.
A class B misdemeanor has a range of punishment of up to 6 months in jail and/or a fine not to exceed $500.
A class A misdemeanor has a range of punishment of up to 1 year in jail and/or a fine not to exceed $1,000. If found guilty of a second or subsequent DWI offense, the court may order the person to submit to a period of continuous alcohol monotiring or verifiable breath alcohol testing performed a mijnimum of four times per day as a condition of probation. If a person pleads guilty or is found guilty of a second DWI offense, it will also result in a minimum of ten days in jail unless the person performs at least thirty days worth of community service or participates in a court-ordered treatment program, if available through the court where the charge was filed, and performs thirty days worth of community service.
Additionally, driving while intoxicated and causing physical injury to another person while doing so may be filed as a class E felony. This offense carries much more severe punishment than the first and second. The punishment can be a fine not to exceed $5,000 and/or a jail or prison sentence not to exceed four years. The sentence can be up to one year in jail or up to four years in the Department of Corrections. A third DWI is listed as a persistent offense and as such the person shall not be eligible for parole or pbation until having served a minimum of thirty days imprisonment unless he/she performs at least sixty days worth of community service or participates in a court-ordered treatment program, if available through the court where the charge was filed, and performs sixty days worth of community service.
Also, driving while intoxicated that results in the physical injury of a law enforcement officer or emergency personnel may be charged as a class D felony. The punishment can be a fine not to exceed $5,000 and/or a jail or prison sentence not to exceed seven years. The sentence can be up to one year in jail or up to seven years in the Department of Corrections. A fourth DWI offense is an aggravated offense and a person is not eigible for parole or probation on an aggravated DWI offense unless he or she has served at least sixty days imprisonment.
Also, driving while intoxicated that results in serious physical injury to a law enforcement officer or emergency personnel may be charged as a class C felony. A fifth DWI is a chronic offense and the offender shall not be eligible for probation or parole until having served two years imprisonment. The range of punishment on a class C felony is from three to ten years in prison.
Additionally, a person that causes the death of a law enforcement officer or emergency personnel while driving while intoxicated may be charged with the class B felony of driving while intoxicated. A conviction for the sixth DWI offense is a this offense requires two years in the Department of Corrections prior to being eligible for parole. The sentence may be anywhere from five to fifteen years in the Department of Corrections. A sixth DWI is an habitiaul offense and the offender shall not be eligible for probation or parole until having served two years imprisonment. The range of punishment on a class B felony is five to fifteen years in prison.
A seventh DWI is a chronic offense and the offender shall not be eligible for probation or parole until having served two years imprisonment. The range of punishment on a class A felony is ten to thirty years in prison.
Sentences can be longer for those that are dangerous or persistent offenders. A dangerous offender, according to statute 558.016, is one who (1) is being sentenced for a felony during the commission of which he knowingly murdered or endangered or threatened the life of another person or knowingly inflicted or attempted or threatened to inflict serious physical injury on another person; and (2) has pleaded guilty to or has been found guilty of a class A or B felony or a dangerous felony.
The same statute defines a persistent offender as one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times. Missouri Revised Statute 558.016 states the total authorized maximum terms of imprisonment for persistent or dangerous offenders.
(5) For a class E felony, any sentence authorized for a class D felony.
Missouri Revised Statute 577.010 states that a person commits the crime of "driving while intoxicated" if he operates a motor vehicle while in an intoxicated or drugged condition. 577.001(1) states: As used in this chapter, the term "drive", "driving", operates" or "operating" means physically driving or operating a motor vehicle.
BrAC refers to Breath Alcohol Concentration while BAC refers to Blood Alcohol Concentration. A person with a BAC of .08 or higher may be charged with DWI but the BAC may be less and a DWI charge still occurs. Even with a BAC of .08 or higher, the driver may have been below the legal limit at the time he/she was driving. This is because many times a suspected DWI offender is not tested for BrAC until the person has been transported to the jail and time has passed. It can also occur to a suspected DWI offender if there was an issue with the breath testing machine not functioning properly. Call an experienced DWI lawyer to find out how this may affect your situation.
2. DWI is for the first offense, a class B misdemeanor. No person convicted of or pleading guilty to the offense of driving while intoxicated shall be grated a suspended imposition of sentence for such offense, unless such person shall be placed on probation for a minimum of two years.