accuracy of DWI test

[DltUNH]

Let me begin by saying the following events did not happen to me, and I'm not saying..... "a person I know did this" because I don't have the guts. My girlfriend's roomate ex-boyfriend (six degrees of separation) is trying to fight a dwi infraction, and I think it is one of the stupidest thing I've heard, but here goes his rational for why he'll fight it at his arraignment in a month.

The exact details are through my girlfriend as I have not talked to him and probably won't for quite some time, but I'll pass any info onto my girlfriend's roomate so that he doesn't make a complete fool of himself and waste the court's and the arresting officer's time.

He claims, that he was speeding just a block away from his destination (which was true), it was 1:30- 2ish am in the morning on a wed night, a relatively quiet night as everyone is getting ready for finals. He sees the blue, but thinks he's fine because he waited awhile to drive (good decision). So the cop comes up to the window doesn't ask him, "did you know why I pulled you over". This kid thinks that because of this omission he shouldn't be charged, he thinks that the cop is obligated to tell you why he is pulling you over, and if he doesn't the ticket should be voided. I don't know where he got that, but go figure.

So...For whatever reason the cop after a brief dialogue without even asking him why he pulled the kid over for, asked him if he had been drinking that night, he said he had a few earlier. The cop asked him to get out of the car and inititated the field sobriety test. Apparently, he passed all but one, and that was to follow the pen. According to him he was doing well until the cop placed it at a place that was beyond his periphery (butchered the spelling). He moved his head acutely and as a result failed. (I just want to point out though that doing that test sober I've done the same thing. In my EMT training it's difficult to follow without moving your head some time).

So after failing the test they put the cuffs on him, and i don't think placed him under arrest. I wish I knew him better cause I would ask the exact proceedings. When he took the breath test he blew a .11, .03 over the legal limit. This is where I think they placed him under arrest, regardless of whether or not he passed all the other tests.

He thinks he can fight because of the following reasons
1)He was speeding inititally, and the cop never told him that this is why he was being pulled over. (I told my girlfriend that if he has pc to pull someone over, whatever he finds he finds. You can't initiate a traffic stop for one reason and exclude all other possible infractions) Oh yea he only got a warning for the speeding, which leads me to assume that he wasn't going over the limit by that much.

2)The way in which he issued the pen test was set up in a way for him to fail ( I told my girlfriend that those tests are just a subjective determination on the part of the investigating officer to issue a breath test, so even if it was unfair, he still breathed a .11.

So regardless of what happened, the cop will just point to the .11 and say the judge this was .03 over the limit? Because that's what I think will happen.

Again, I don't want you to think that I am trying assist somebody to get off on this, I think what he did was stupid and he's lost a lot of pts in my book. I just would hate for him to get a tougher sentence because he decided to fight something in court that he had no right to.

I appreciate any replies, and thank you for reading a relatively long post.
AND when will people F$*#ing learn not to drink and drive? Thanks for all of you for taking people like this kid off the street.

[acreature]

He claims, that he was speeding just a block away from his destination (which was true),

Everybody is almost home

So the cop comes up to the window doesn't ask him, "did you know why I pulled you over". This kid thinks that because of this omission he shouldn't be charged, he thinks that the cop is obligated to tell you why he is pulling you over, and if he doesn't the ticket should be voided. I don't know where he got that, but go figure.

Only obligation for the Officer is to HAVE a reason to stop a person. He does not need to ask if you know why you were stopped.

According to him he was doing well until the cop placed it at a place that was beyond his periphery (butchered the spelling). He moved his head acutely and as a result failed. (I just want to point out though that doing that test sober I've done the same thing. In my EMT training it's difficult to follow without moving your head some time).

So after failing the test they put the cuffs on him, and i don't think placed him under arrest. I wish I knew him better cause I would ask the exact proceedings. When he took the breath test he blew a .11, .03 over the legal limit. This is where I think they placed him under arrest, regardless of whether or not he passed all the other tests.

That would be HGN. And there is more to the story... as in the Officer's observations. You cannot go by what your "friend" says because apparently he was impaired, and probably does not have a valid recollection of events, especially SFSTs... Does he know how to administer them? Is he certified to do so? If not, how does he know he passed all but the HGN?

He thinks he can fight because of the following reasons
1)He was speeding inititally, and the cop never told him that this is why he was being pulled over. (I told my girlfriend that if he has pc to pull someone over, whatever he finds he finds. You can't initiate a traffic stop for one reason and exclude all other possible infractions) Oh yea he only got a warning for the speeding, which leads me to assume that he wasn't going over the limit by that much.

Police need Reasonable Suspicion, not Probable Cause to stop a car. And you can be given a warning at any time. That does not negate the infraction.

So regardless of what happened, the cop will just point to the .11 and say the judge this was .03 over the limit? Because that's what I think will happen.

If your "friend" wants to fight it... No, that will not be all that will be said. The entire encounter will be discussed, as will all sobriety testing.

[acreature]

... is trying to fight a dwi infraction

And it is a Misdemeanor.. which means it goes on the Driver's Record as well as the Criminal History.

An Infraction only affects the Driver's Record ;)

[Star]

First of all, it was 1:30 or 2ish in the morning. Cops on midnight shift look at everyone on the road during the wee morning hours. He was probably driving irrationally and speeding. The Officer didn't have to use that dialog with him to begin with. He's making his initial observation of the guy. He could have just said anything because, pretty much, the general public with any sense at all knows why they are being pulled over. There is not a set dialog an Officer has to use until he reads a person their rights.

If he blew a .11, he's guilty. The Judge is going to laugh at him and think he actually needs more help than he did before. He's going to dig himself a hole in Court. There is no excuse good enough for drinking and driving.

[Piggy]

I think he's pretty much hoping for a miracle. The only DUI case I ever lost was when our public defender sat as the acting judge that day, and didn't like me at all because I always beat him in court. It's going to cost him an awful lot for a small possiblity of winning the case. Does he have an attorney or is he going it alone? If he had an attorney, he'll lose the part where the Officer didn't tell him why he was pulling him over.

On a side note, most of us will appreciate the honesty in telling us exactly how you know this person. I can't count the posts of "my friend" or "someone I know". Let us know how the trial goes, if you find out.

[samseed101]

Let him go to court with those weak arguments. I'm sure the DA's could use the laughs and Im sure his attorney would love to take his cash.

Obviously the cop thought that he had enough probable cause to make an arrest for DWI. And judging by the BAC, I would say he was right. Let me guess; this friend also thinks that he should get off because he was not read his rights?

[Drew27k9]

Just about every person arrested for DUI thinks they passed the field tests. If they passed the field tests they wouldn't be arrested. Second, as soon as the cuffs were placed on him, and he was taken for the breath test, he was already under arrest. Tell the guy he needs to stop watching T.V.

[Legoate]

2)The way in which he issued the pen test was set up in a way for him to fail ( I told my girlfriend that those tests are just a subjective determination on the part of the investigating officer to issue a breath test, so even if it was unfair, he still breathed a .11.

You are talking about Horizontal Gaze Nystagmus which I consider to be one of the most accurate methods for determining a person's blood alcohol without a breath/blood test. I can normally correlate the persons HGN within .02 of their breath test. You don't "fail" an HGN by moving your head....hell, You never really "fail" it- Your HGN just tells the experienced officer what your BA is so he arrests you. Personally, I'd feel comfortable skipping the rest of the tests, and sticking strictly with the HGN as the determinant as to whether someone is intoxicated.

You state that your friend "passed" the rest of his FST's...exactly how does he know this? I don't tell people if they pass or fail...there is no "passing" grade for FST's. The FST's simply demonstrate to the officer whether or not the person is being influenced by his blood alcohol. An officer is not required to tell you if you pass or not....when people who are really drunk ask me if they passed, I usually tell them "Yes, you are doing a great job" (meaning a great job of telling me they are drunk).

You also state your friend couldn't have been driving too fast because he wasn't cited for it. First of all, there isn't a speed over the speed limit that we are required to cite for, it is officer discretion. And most officers I know will not charge the person for the violation that they pull them over for if they are also charging them for DUI...for example...I do tons of stops for registration violations...but If I find drugs in the car and arrest person, I charge them for the drugs and skip the registration ticket. Same goes for DUI...generally we like to keep our DUI tickets nice and clean by leaving out unneccessary junk....so if we cite the DUI, we generally skip minor infractions.

If I were your friend, I'd just plead guilty or no contest and rely on the mercy of the court. His knowledge of the legal system and his attempts to make lame excuses to get himself free of the DUI charge are unlikely to work.

[sbrad]

If your friend was given HGN (Horizontal Gaze Nystagmus), that means the officer is certified in administering NHTSA-approved field sobriety testing, which means he is going to be considered by the court, for the most part, to know what he is doing.
Second, your friend was not arrested because he "moved his head". That is not one of the six clues that are looked for when administering HGN. There are only 3 things he was looking for (two per eye) and that aint one of them.
Third, I can tell you, within .02, what your BAC will be JUST by using HGN. The eyes do not lie, my friend, and this is how I am able to consistently lock up people at .08 and .09, which takes more than just guessing and luck.

As for the other FST's, I have had people who presented zero clues on Walk and Turn and One Leg Stand who gave it up with HGN. Also, your friend has NO idea how he did on the other tests because he has no idea what the officer is looking for with them. Trust me.

Your friend is an asshat and should do what he feels is best. But barring any major screw ups you haven't mentioned on the cop's part, this case looks like ones I win every single day without breaking a sweat...except for the radar part because I don't use it.

[sbrad]

You are talking about Horizontal Gaze Nystagmus which I consider to be one of the most accurate methods for determining a person's blood alcohol without a breath/blood test. I can normally correlate the persons HGN within .02 of their breath test. You don't "fail" an HGN by moving your head....hell, You never really "fail" it- Your HGN just tells the experienced officer what your BA is so he arrests you. Personally, I'd feel comfortable skipping the rest of the tests, and sticking strictly with the HGN as the determinant as to whether someone is intoxicated.

You state that your friend "passed" the rest of his FST's...exactly how does he know this? I don't tell people if they pass or fail...there is no "passing" grade for FST's. The FST's simply demonstrate to the officer whether or not the person is being influenced by his blood alcohol. An officer is not required to tell you if you pass or not....when people who are really drunk ask me if they passed, I usually tell them "Yes, you are doing a great job" (meaning a great job of telling me they are drunk).

You also state your friend couldn't have been driving too fast because he wasn't cited for it. First of all, there isn't a speed over the speed limit that we are required to cite for, it is officer discretion. And most officers I know will not charge the person for the violation that they pull them over for if they are also charging them for DUI...for example...I do tons of stops for registration violations...but If I find drugs in the car and arrest person, I charge them for the drugs and skip the registration ticket. Same goes for DUI...generally we like to keep our DUI tickets nice and clean by leaving out unneccessary junk....so if we cite the DUI, we generally skip minor infractions.

If I were your friend, I'd just plead guilty or no contest and rely on the mercy of the court. His knowledge of the legal system and his attempts to make lame excuses to get himself free of the DUI charge are unlikely to work.

Lol...same post at the same time.

[acreature]

Lol...same post at the same time.

No, you were 3min later :p

Pwn3d :D

[sbrad]

No, you were 3min later :p

Pwn3d :D

I meant we were typing it at the same time asshat.

[acreature]

asshat? Assberry :D

[sbrad]

asshat? Assberry :D

Snot trail.

[acreature]

we could on and on, but we don't wanna jack the thread now do we? Ballzsack Skin!