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Driving While Intoxicated/Driving While Impaired

 

Standard Field Sobriety Tests

 

The National Highway Traffic and Safety Administration developed three tests that law enforcement officers utilize to help them determine if a persons ability to operate a motor vehicle is impaired by the consumption of alcohol or drugs. Collectively these tests are called the “Standard Field Sobriety Tests” or SFST’s. The three standardized tests are as follows:

 

• The Horizontal Gaze Nystagmus test or HGN

• The Nine Step Walk and Turn

• The One Leg Stand

 

Field Sobriety Tests are any one of several roadside tests that can be used to determine whether a suspect is impaired.

 

Horizontal Gaze Nystagmus / HGN

 

The Horizontal Gaze Nystagmus test looks for involuntary jerking in the eyes. Often times police will describe the jerking of they eyes as follows: imagine a marble rolling across a sheet of glass, it rolls smoothly, now imagine a marble rolling across a sheet of sandpaper, it jerks as it rolls.

 

The officer administering the test is to give the following instructions:

 

• “I am going to check your eyes.”

• “Keep your head still and follow this stimulus with your eyes only.”

• “Keep following the stimulus with your eyes until I tell you to stop.”

 

The officer is looking for three clues:

 

• The Lack of Smooth Pursuit

• Distinct and Sustained Nystagmus at Maximum Deviation

• Onset of Nystagmus Prior to 45 Degrees

 

Officers are encouraged to use a pen-light as the stimulus.

 

Nystagmus may be due to many causes other than alcohol including, fatigue, medications, a head injury, and flashing lights just to name a few.

 

The Horizontal Gaze Nystagmus test is not 100% accurate even when done under ideal conditions.

 

Nine Step Walk and Turn

 

The officer administering the test is to give the following instructions:

 

• “Place your left foot on the line.”

• “Place your right foot on the line ahead of the left foot, with heel of right foot against toe of left foot.”

• “Place your arms down at your sides.”

• “Maintain this position until I have completed the instructions. Do not start to walk until told to do so.”

• “Do you understand the instructions so far?”

• “When I tell you to start, take nine heel-to-toe steps, turn and take nine heel-to-toe steps back.”

• “When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot, like this.”

• “While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.”

• “Once you start walking, don’t stop until you have completed the test.”

• “Do you understand the instructions?”

• Begin, and count your first step from the heel-to-toe position as One.”

 

The Officer is looking for the following clues:

 

• Cannot keep balance while listening to the instructions.

• Starts before the instructions are finished.

• Stops while walking.

• Does not touch heel-to-toe.

• Steps off the line.

• Uses arms to balance, by raising arms more than 6 inches from the side.

• Improper turn.

• Incorrect number of steps.

 

Officers are encouraged to use a real line, not an imaginary one, and to have the test performed on a dry, smooth, level surface.

 

Many factors that are not alcohol related can affect this test including, but not limited to the following:

 

• Uneven, wet, slippery or soft pavement/surface

• Being nervous or fatigued

• Back, leg or inner ear problems

• Being over weight

• Wearing high heels and other inappropriate footwear

• People over 65

 

The Nine Step Walk and Turn is not 100% accurate even when done under ideal circumstances.

 

One-Leg Stand

 

The officer administering the test is to give the following instructions:

 

• “Please stand with your feet together and your arms down at the sides, like this.”

• “Do not start to perform the test until I tell you to do so.”

• “Do you understand the instructions so far?”

• “When I tell you to start, raise one leg, either leg, with the foot approximately six inches off the ground, keeping your raised foot parallel to the ground.”

• “You must keep both legs straight, arms at your side.”

• “While holding that position, count out loud in the following manner: “one thousand and one, one thousand and two, one thousand and three, until told to stop.”

• “Keep your arms at your sides at all times and keep watching the raised foot.”

• “Do you understand?”

• “Go ahead and perform the test.”

 

The Officer is looking for the following clues:

 

• The suspect sways while balancing.

• Uses arms for balance, by raising arms more than 6 inches from the side.

• Hopping.

• Puts foot down.

 

Many factors that are not alcohol related can affect this test including, but not limited to the following:

 

• Uneven, wet, slippery or soft pavement/surface

• Being nervous or fatigued

• Back, leg or inner ear problems

• Being over weight

• Wearing high heels and other inappropriate footwear

• People over 65

 

The One-Leg Stand is not 100% accurate even when done under ideal circumstances.

 

IT IS NECESSARY TO EMPHASIZE THE VALIDATION OF THE STANDARD FIELD SOBRIETY TESTS APPLIES ONLY WHEN:

 

• THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER

 

• THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT’S PERFORMANCE

 

• THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE

 

IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.

 

Refusal of Sobriety Test

 

You do not have to perform field sobriety tests and there are many reasons not to perform them. First and foremost, there generally are no video cameras or recording devices of any kind present to record your performance. Without your performance being memorialized the police are free to indicate whatever they like in their notes even if it is inaccurate or wrong. Additionally, the police often make overtime when they make an arrest which gives them a financial incentive to say you failed the testing in order to earn overtime. Newsday recently reported the salaries of police officers that have double their salary by earning DWI overtime.

 

Penalties

 

In New York State, the penalties you are subject to differ by your age. If you are under 21 years of age and are convicted of driving while intoxicated, your license will be revoked for a year. If you are convicted a second time and are under the age of 21, your license will again be revoked for a year or until you turn 21. However, you can receive a conditional license if you enroll in the Drinking Driver Program after your conviction. If you are over 21, you face a fine of between $500 and $1,000 for your first offense, up to one year in jail, and a license suspension of six months.

 

Given the possible repercussions of a conviction, it is of vital importance that you select a law firm that is going to protect your rights.

 

At the Law Office of David Galison, P.C., we strive to ensure that your rights are protected. If you are charged with any alcohol related driving offense in Nassau, Suffolk or Queens County, contact the Law Office of David Galison, P.C. at 516-242-4477 to schedule a FREE CONSULTATION to discuss your case.

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