Free in Kentucky: How Accurate are Field Sobriety Tests???

Free in Kentucky: How Accurate are Field Sobriety Tests???: You would think that would be an easy question to answer, but it isn't. The Standardized Field Sobriety Tests (sometimes referred t...

How Accurate are Field Sobriety Tests???

Posted by Attorney Greg Simms, 502.618.4949

You would think that would be an easy question to answer, but it isn't.

The Standardized Field Sobriety Tests (sometimes referred to as "SFSTs" or "FSTs") that are the staples of Law Enforcement sobriety testing today, include the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (W&T) and the One Leg Stand (OLS) tests.

The tests were conceived by the Southern California Research Institute (SCRI) around about 1975.  I presume these people were academics, and not actual doctors.  And for the purpose of this blog we will assume that they were not funded by an agency or company with any outside interests - that the people at the SCRI were genuinely unbiased.

The HGN is the test where a police officer puts a finger in front of your face, and moves it around.  They tell you to follow their finger with your eyes, and the officer looks for involuntary jerking of the eyes, called "nystagmus."  This word is pronounced most commonly as "nis-TAG-muss" and less commonly as "na-STY-muss."

The walk and turn test and one leg stand tests are pretty self explanatory.  If you can't figure them out, raise your hand and Tommy will come along and hit you in the head with a tack hammer...

Anyway, when the SCRI developed the tests in 1975, they gave a percentage of accuracy for each test in determining the impairment of a subject test taker.  Those percentages are as follows:

-The HGN alone, was 77% accurate

-The W&T alone, was 68% accurate

-The OLS alone, was 65% accurate

and the combination of the HGN and W&T yielded an accuracy of 80%.  If you have any questions about math, feel free to text my friend, Jeremie Wade.  He loves that.

These " percentages of accuracy" are legitimate if, and only if, the tests are performed correctly by the police officer, and only if the test results are interpreted correctly by the police officer.

Let me expound on that just a little bit.  There are a lot of details involved in giving these tests.  Specificities that the officer has to remember.  For example, when performing the HGN test, the officer's finger should be between 12-15 inches in front of the subject's face.  A lot of officers have forgotten this information years after learning it, and some don't remember the numbers correctly (for some reason a lot of officers think it's 12-18 inches.  

In addition, and maybe more importantly, the guidelines for the tests state specifically that the officer is always supposed to turn the subject test taker AWAY from any flashing lights (like the cruiser's emergency lights).  This makes sense because the officer is looking for "jumping" in the eyes, and flashing lights can cause your eyes to jump, or jerk.  Surprisingly, I have found that an extremely high percentage of police officers do NOT turn subjects away from the flashing lights - like 50% or so.

The problem with doing the tests wrong, is that - obviously - you can get bad results.  Even the guidelines state specifically that "if any one of the standardized field sobriety test elements are changed, the validity is compromised."  The book seems to think that's pretty important, because in the book, that writing is in all caps, and bold letters.

There are a LOT more details associated with performing the HGN test - like the seconds it takes to do a full sweep, the method for determining the onset of nystagmus prior to 45 degrees, and the specific time of the hold at maximum deviation.  And we haven't even started on the W&T and OLS, which are also frequently performed incorrectly.

So the answer to the original question is - we kind of don't know.  We know how accurate the SCRI says the tests are supposed to be if they are done correctly.  But we also know that a lot of police officers don't do them correctly - and that the guidelines say that compromises the validity of the tests.

So... my bad.  I hate to give you a question like that, and then not answer the question.  That must be frustrating for you.  If it makes you feel better, I empathize with you.

If you have any more questions on field sobriety tests, let me know.  Feel free to contact me, Greg Simms, at 502.618.4949.  Or drop by.  My door is always open.

Questions Answered in this Blog Post:  How accurate are Field Sobriety Tests FSTs SFSTs; what is the accuracy rate of HGN W&T OLS; accuracy for Horizontal Gaze Nystagmus, Walk & Turn and One Leg Stand tests; how can I find a good DUI lawyer in Louisville Kentucky; DUI lawyers for Elizabethtown Kentucky; Hokum Field Sobriety tests?

The Police Have Been Doing Roadblocks Wrong.

So, I got a published case from the Court of Appeals reversing a conviction against one of my clients this week.  That’s pretty rad.

To put this in perspective – if you get convicted at a jury trial, you have one appeal “as a matter of right.”  That means you have a constitutional right to have a higher court look at the case and determine whether something was done wrong.  And if they think the original judge made a mistake, it’s possible for that higher court to reverse your conviction.

If that higher court doesn’t think the original judge made a mistake, you might be out of luck.  You don’t have any more appeals as a matter of right.  However, that isn’t exactly the end of the line.  You can petition the next highest court for “discretionary review.”  That means you can ask the next highest court to take a look at your case, but they aren’t obligated to do so.  They can basically tell you to go fly a kite.  In fact, most of the time they do.  And they don’t even have to give you a reason why they turned you down.

If you started out in District Court, your appeal as a matter of right would be to the Circuit Court in that county, and then your motion for discretionary review would be made to the Kentucky Court of Appeals.

I don’t know what the percentage of acceptance for motions for discretionary review is – I want to say less than 20% but I’m just guessing.  But I can tell you that after the Court of Appeals accepts a case and gets out a ruling, less than 15% of those that are taken up become published cases.  So it is very rare for an attorney to get published caselaw.  Some lawyers go their whole careers without getting anything published by the Court of Appeals. 

In the case I’m talking about today, we started out in District Court – it was a DUI case stemming from a police roadblock.  I made the argument that the roadblock wasn’t done correctly (a violation of my client’s Constitutional rights), and the District Court disagreed.  We tried the case before a jury.  After a short trial* my client got convicted of DUI, second offense, open container, and the failure to wear a seatbelt.

My point on the roadblock issue is this:  The police didn’t have a “pre-approved start and stop time” for the roadblock, and that’s too much discretion for a police officer to have.  This argument was kind of a new twist on some existing law.  The law on roadblocks, boiled down, is this:  Instead of having individualized suspicion to pull someone over, police can use roadblocks if, and only if, they follow some guidelines in order to limit the discretion of the officers implementing the roadblock. 

There’s a list of guidelines for the police to follow, but the law in Kentucky has been that the failure to follow some of those guidelines won’t necessarily make the roadblock unconstitutional.  The guidelines are supposed to be used as a kind of balancing test.  But I was asking the Court of Appeals to recognize that some of those guidelines are more important than others, and that the failure to adhere to some of the important ones can be fatal in some roadblock cases.  To make the rubber hit the road, in the case we’re talking about today, I’ll give you 2 different examples of mistakes the police made.  1) They weren’t wearing the approved and extremely fashionable safety vests that police are supposed to wear during a roadblock.  2) The start and stop time of the roadblock was not pre-approved by a supervisor.

Nobody really gives a damn about whether the police wear their safety vests (I mean, police should, because it can be dangerous out there – but, still).  The failure to wear them doesn’t give the police any more discretion, or power.  However, if you let police determine their own start and stop times for the roadblock, they can look down the line and see some white people coming – and decide that the roadblock doesn’t start just yet.  As soon as the black guy rolls up, the roadblock starts.

The lack of a pre-approved start and stop time gives the police more power – which can be dangerous.  That can lead to the exercise of their own personal bias or prejudices.  There is “grave danger’ inherent in allowing law enforcement officers to exercise ‘standardless’ and ‘unconstrained’ discretion in conducting traffic stops.” Cox v. Commonwealth, cite to come later, citing Prouse, 440 U.S. at 661-662, 99 S. Ct. at 1400-01.**

Fortunately for me and for my client, the Court of Appeals agreed with me.

This case, Cox v. Commonwealth, stands for the proposition that some roadblock guidelines are more important than others – and that the lack of a pre-approved start and stop time is one of those very important factors. 

Part of the cool thing about this case is that it doesn’t just apply to my client.  It applies to all roadblock cases in Kentucky.  That means that of all the roadblock DUIs in Kentucky right now, an extremely large percentage of those cases can now be dismissed because the police haven’t been doing what they were supposed to, in order to protect the Constitutional rights of the public.  And that’s pretty awesome.

For all my lawyer friends who want to cite the case in an existing roadblock case, you can read the entire opinion at: http://opinions.kycourts.net/coa/2012-CA-000957.pdf

If you have any questions about this case, or Kentucky Roadblock DUI law, or anything else, you can call me at 502.618.4949.  My door is always open.

*That’s an inside joke for Jon Spalding, who will probably never read this.  So I’m not sure why I included it.

** Yeah, that felt good.


Questions Answered in this Blog Post:  How can I find a good Roadblock DUI lawyer in Kentucky; how to defend a roadblock DUI; DUI lawyer in Elizabethtown Ky; Louisville DUI lawyer; what does the Cox v. Commonwealth roadblock DUI case mean for police procedures?

Free in Kentucky: Race Car Driver Gets DUI on the Track

Free in Kentucky: Race Car Driver Gets DUI on the Track: Pursuant to Yahoo Sports News:  “Leslie   Charles Hunter , 64, of San Jose, Calif. was arrested Friday night on suspicion of driving under ...

Race Car Driver Gets DUI on the Track

Pursuant to Yahoo Sports News:  “Leslie Charles Hunter, 64, of San Jose, Calif. was arrested Friday night on suspicion of driving under the influence at the Watsonville (Calif.) Ocean Speedway. The suspicion came because he was, in the interpretation of the other drivers, racing like a fool. Other drivers had complained that Hunter was recklessly forcing them to the side of the track, and Santa Cruz County police stepped in to investigate.

They found Hunter in the pits, and arrested him on suspicion of DUI and driving with a blood alcohol level higher than 0.08 percent.”

A lot of people have misconceptions about where a person can get a DUI in Kentucky.  Some people think you have to be on a Kentucky roadway, or that you can’t get a DUI on private property.  Mr. Hunter in the above story may have thought “Well, it isn’t like I’m driving out on the road.  This is different.”

Let’s look at the Kentucky law to see if a person can get a DUI on a raceway in Kentucky.  Any Louisville DUI lawyer worth their salt will tell you that KRS 189A is the statute that controls DUI in Kentucky.  It is a long statute, so I will only post the pertinent sections:

(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state:

    (a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person's breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle;

       (b) While under the influence of alcohol;

There are a lot of elements, facets, ifs, ands, and what-have-yous to DUI.  For the purpose of this discussion I will concentrate on the geographical scope of the law.

The geographic scope of the law is what I would consider quite broad.

Kentucky law not only prohibits driving under the influence on Kentucky roadways, all public streets and lots, private roadways, and even private property OFF the roadway.

Our Kentucky Supreme Court tackled the issue of DUI on private property in Lynch v. Com., 902 S.W.2d 813, 815 (Ky. 1995).  The Court found that an arrest for DUI on private property is indeed proper.  According to Kentucky courts, the first sentence of KRS 189A is read strictly, and “anywhere in the state” really means “anywhere in the state.”

So the answer is:  Yes.  You can get a DUI anywhere in Kentucky.  It doesn’t matter if you are on private land, or even if you OWN that land.  Anywhere in Kentucky.

DUI is a serious charge.  Don’t trust your case to a lawyer who handles DUIs “every once in a while.”  If you have a DUI charge in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call an experienced Louisville DUI lawyer.   There is no charge for an initial consultation, so call 502.618.4949 today.  

Free in Kentucky: Some DUIs Can Be Thrown Out Because of Bad Roadblo...

Free in Kentucky: Some DUIs Can Be Thrown Out Because of Bad Roadblo...:             “Roadblock” DUIs are quite misunderstood by most defendants and a lot of lawyers.  Generally, people think roadblock DUIs are w...

Some DUIs Can Be Thrown Out Because of Bad Roadblocks

            “Roadblock” DUIs are quite misunderstood by most defendants and a lot of lawyers.  Generally, people think roadblock DUIs are worse than normal DUIs, but that isn’t the case at all.  Right off the bat, we know that if the client is stopped at a roadblock, chances are they weren’t stopped for a traffic infraction.  That means the Commonwealth doesn’t have one of the key pieces of evidence they like to have in a DUI case – “Bad Driving.”  We are already a step ahead because we know a police officer is not going to come into court and say something like “they were all over the road” or “I witnessed the subject weaving in his/her lane and crossing the center line.”  Those pieces of evidence can be damning, so it’s nice to have a case where the Commonwealth doesn’t have bad driving.

            In addition, roadblocks can be challenged as violations of the Defendant’s 4^th Amendment right to be free from unreasonable searches and seizures.  That’s what we’re going to concentrate on today.

            In the past, I’ve given you some general points on how to handle yourself at a police roadblock/checkpoint.  For more information on what to say or not to say when you are stopped at a roadblock, see the blog post at http://freeinkentucky.blogspot.com/2011_12_01_archive.html

            Today, we’re going to talk about how roadblocks can be challenged in court.  I’ve had the great fortune of helping make a significant degree of law on this subject, so roadblocks are kind of “my thing.”  My interest and abilities in the subject were sparked and molded by a phenomenal central Kentucky lawyer named Elmer George – who has a pretty impressive reputation and a real knack for DUI work.  While working for Elmer, I got to write the brief for the Monin v. Commonwealth case that we’ll be talking about later today.  But before we get to that, we need to talk a little about the 4^th Amendment, and why it’s important for Police to do roadblocks correctly.

            The 4th Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”  U.S. Const. amend. IV.  The Kentucky Constitution provides the same protection from unlawful searches and seizures.  Ky. Const. §10.  It’s important to note that the law doesn’t protect you from ALL searches and seizures – just UNREASONABLE ones. 

            So – What is a “search” or “seizure?”  Case law abounds establishing that even brief detentions by law enforcement constitutes an seizure under the Fourth Amendment of the United States Constitution.  Delaware v. Prouse, 440 U.S. 648 (1979),  Terry v. Ohio, 392 U.S. 1 (1968).  “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”  Terry,  at 16. 

            So the 4^th Amendment certainly protects against unreasonable stops of a person in their vehicle.  Normally courts will require that the police officer have reasonable, articulable suspicion that criminal activity is going on, before a vehicle stop is allowed.  That’s a good thing because it means police officers can’t just stop any one for any reason.  If that was allowed, we would be subject to the individual biases and prejudices of officers – and unfortunately, that would lead to even more racial profiling, etc.

            Roadblocks (the word “checkpoints” can be used interchangeably) can basically take the place of the need for reasonable, articulable suspicion.  But, in order to make sure we don’t leave the police officers to their own individual biases and prejudices, Kentucky Courts have laid down some rules for how roadblocks have to be performed.  Basically, we’re trying to take the discretion away from the officers in the field (the ones actually performing the roadblock shouldn’t be able to make the decisions about the roadblock).

            The Kentucky Court of Appeals has ruled that discretionary roadblocks violate the Constitutional rights guaranteed by the Fourth Amendment of those detained.  Monin v. Commonwealth, 209 S.W.3d 471 (Ky. App. 2007).   The dispositive question of whether a police checkpoint is discretionary is “whether it was constructed in a way to pass Constitutional muster.”  Commonwealth v. Bothman, 941 S.W.2d 479, 481 (Ky. App. 1996).  

            In order to comply with the Court’s demand that roadblocks not be discretionary, the Kentucky State Police (KSP) has come up with some guidelines for its officers regarding the implementation of roadblocks.  Those rules are called the OM-E-4 guidelines.  So Courts say that the KSP needs to try to follow its own rules in order to limit the discretion of officers performing checkpoints.  While “technical noncompliance” with OM-E-4 regulations does not invariably lead to a violation of Fourth Amendment rights, checkpoints must be established in a way so as to limit the discretion of the officers in the field.  Id. 

            In case you’re wondering, “Why is all this necessary?  I’m sure officers wouldn’t try to abuse the power that comes with performing a roadblock.” let’s talk about Monin.

            The case of Monin v. Commonwealth involved an over-zealous State Trooper who passed a bar in Marion County.  As he passed the bar, he noticed a driver who pulled out of the bar’s parking lot.  The officer wanted to pull over the driver.

            The truth is that “pulling out of the parking lot of a bar” does not constitute reasonable, articulable suspicion that someone has done something illegal.  So, the Trooper did NOT have the right to pull the driver over.  Therefore, as the Trooper approached a pre-approved checkpoint site, he radioed in for permission to start a roadblock.  He got permission, turned on his lights, pulled over the car behind him, took the driver to jail and the roadblock was then over.  It was a one car roadblock.

            The Court of Appeals found that the roadblock in Monin was a violation of the driver’s constitutional rights based on the fact that the “roadblock” wasn’t designed so as to limit the discretion of the Trooper in the field.

            Recently, I argued in front of the Court of Appeals on a similar issue.  In this case, the police officers did nearly everything correctly, except that the start and stop times of the roadblock were not pre-approved by a supervisor.  My argument before the Court of Appeals is that the failure to pre-approve a start and stop time leaves too much discretion to the officers performing the roadblock. 

            Carried to its logical conclusion, an officer in the field could spot a driver he didn’t like, who was not acting suspiciously in any way, radio in for authorization to conduct a traffic checkpoint, and detain the driver.  A valid traffic checkpoint could consist of the stop of exactly one car, in direct contradiction of this Court’s decision in Monin v. Commonwealth, 209 S.W.3d 471 (Ky. App. 2007).  And even worse, a prejudiced officer could wait to start a roadblock until he saw a minority driver, and end the roadblock after the stop of that minority.  It’s exactly this type of discretion that the roadblock law in this great Commonwealth seeks to prevent.

            Anyway – we’ll see what the Court of Appeals says.

            It should take a couple of months or so to get our decision, but I’ll post it when it comes out.  If you have any more questions about roadblock law, or DUI in general, don’t hesitate to ask.  My door is always open.

Greg Simms, Attorney at Law – 502.618.4949