B: So let’s go down the no path and then let’s go down the yes path. So if you are impaired and you say no what’s the next steps that the officer would make?
M: A lot of times the officer will try to convince you that doing the field exercises is in your best interest. The officer will typically say, “well, listen, that’s within your right to say no to the field sobriety exercises but I want you to understand that if you say no I’ll have to base my decision on everything that I’ve seen so far rather than give you an opportunity to allay my concerns that you’re driving under the influence.” It’s almost like, “I’m gonna give you the opportunity to prove that you’re not DUI”, which by the way is not even how our system works. But what the officer is saying is, “I pulled you over. I’ve got some suspicion that you’re impaired and you’re going to refuse this test so I’m taking you to jail.” That’s basically what he’s saying.
B: OK and so they hand cuff you and put you in the back of the car, read you your rights, correct?
M: Yes and the miranda warnings come at different times but you get handcuffed and taken back to the jail. At that point, when you’re handcuffed, there’s another step that’s the breath test step. The officer would ask if you’d be willing to submit to a breath test because even though you refused the field sobriety, believe it or not there are some folks who refuse the field sobriety and say yes to the breath test and there are some folks that say no to the breath test and yes to the field sobriety. I’m not ever sure I understand why it’s either no or yes I don’t know why you’d break it up but that would be a separate set and there would be questions that the officers going to ask you questions and read you your miranda warnings and document where you’re coming from and how much you had to eat that day, what you had to drink if you had anything to drink at all, if you feel like you’re under the influence of an alcoholic beverage. Those are kind of the standard DUI questions.
16:58 B: At the point that they get arrested, and they are taken back to the jail, when do you recommend that they contact you?
M: It would be great to be contacted the moment it happens, but there’s obviously some impediments to that. When they handcuff the person and put him in the back of the car, he’s not calling anybody. And he probably is going to go back to the jail and he’ll be sort of in a holding area, in the state of Florida, they hold folks for 8 hrs at a minimum before they get any type of bond. And they’re usually sitting in a holding area and they don’t, you know maybe they get to make a phone call, they probably call their family first to let them know where they are. I would say the following day would probably be the best time to call. When you get out of jail and you’ve kind of had some time to rest because you probably had a miserable night. You’ve had some time to rest and get some clear headedness about you. Start thinking about what you’re gonna do about this case.
B: OK so you say if you say no to the field sobriety test, more than likely if you are impaired, they’re going to take you in and then they’re going to ask you if you’d take a…if you want to submit to a breath test, and that’s their choice whether they say yes or no.
M: It is, the driver has the choice. They can’t force it on you. In the state of Florida, they have a thing called an implied consent, meaning if you drive on the highways of the state, you’re implied to have consented to all of it. The field sobriety test is required by law, so if you refuse the breath test (the breath test only) the DMV, the officer will take your license for a year and the DMV will basically suspend your license for one year. Then there’s ways around that and we’ll get to that. That’s kind of after the arrest portion.
18:50 M: So, the refusal of the breath test is completely up to the person getting arrested, but again, there are some consequences that that person would need to be aware of and the officers inform them to a degree about those consequences. But, getting back to assuming the person agrees to submit to the field sobriety exercises, in every circumstance I’ve ever seen in a DUI case, it always starts off with the first one being HGN. HGN is a standardized field sobriety exercise called horizontal gaze nystagmus. That’s something that folks may have seen, whether they watched the tv show Cops, or they’ve seen any kind of show, there’s this test where the officer is standing in front of the suspect and he’s holding up either a pen or a lighted pen. And he kind of stands right in front of the person and moves the pen in front of the individual’s face. And he moves it from left to right. The person has to look directly at the pen, not move his or her head, and just kind of move his eyes to follow the pen. That test is actually almost a medical test. It’s designed to detect the involuntary shakes that your eyes get. I’m going to describe it as shakes. These involuntary movements that your eyes get when a person consumes alcohol. It’s really actually a very good and accurate test if it’s performed appropriately. My concern is some of these officers who are performing the test really don’t know how to perform the test and they really don’t know what it is they’re looking for specifically. You know, you get kind of this crash course in DUI detection I’m sure in the academy and maybe some more when you’re working but I think that this test which is designed for medical professionals may not always be as well performed when it’s performed by law enforcement officers.
B: And if it’s late at night, it’s dark, they’re more than likely putting a flashlight in their eyes as well.
M: Yeah, usually the stimulus, they call it, the pen or whatever it is usually is going to be one of those lighted pens. What’ll happen is the officer is going to determine whether he sees what they call the nystagmus. And if he sees it, he’s gonna have a pretty good indication there that he’s got something. The unique thing about the HGN test is it’s really not something that a juror can see. You know, if you’re talking about trying a case, what you see is a cop standing in front of a suspect and you see him moving a pen from side to side but you really don’t see anything else, because the camera is never really so close to person’s eyeballs where you see these shakes. So, although it may have and I think it’s probably one of the more reliable exercises that they do, it may be very difficult for the lay person to even appreciate the significance of it. And it may, quite frankly, have an impact on whether or not anyone even believes it’s enough to be found guilty of driving under the influence. So the actual definition of a nystagmus is “an involuntary jerking of the eyeballs” so you’re not going to be able to see that on video as you’re sitting in the jury box. And the other unique thing about it in the state of Florida, at least in this district, in Tampa, Pinellas, and Pasco Counties it’s really only admissible if the officer who performed the test is a drug recognition expert. That means, that officer has special training to detect drug impairment and other things and drug impairment including alcohol, to be able to talk about what the test actually shows, what it represents. Some officers are qualified because they can explain the test and explain what it’s for, but there are so many officers who do this test who really don’t know what it is that it’s actually doing and they can’t even testify about it in a court of law.
B: So as an experience criminal defense attorney, that’s one of the things that you look at is who demonstrated that test, and are they certified?
M: Absolutely, because the bottom line is if they’re going to put you through let’s say 3 tests, I can start to knock tests out and keep that from the jury, and I knock it out because I think it might be misleading. I think you’re inching your way to reasonable doubt.
B: Ok so that’s the first test normally.
M: Right and the walk and turn is the next test. The walk and turn is a test where the suspect – it’s called a divided attention task – so it asks the suspect to divide between mental tasks and physical tasks. The mental tasks include comprehension of verbal instructions, processing of information, and memory recall. Memory recall because the officer basically gives you these instructions one time, shows you how the test is performed, and then tells you “go ahead and perform the test”. So you can imagine, a person who gets pulled over and is nervous as heck because they just got pulled over by a law enforcement officer, nervous that he’s asked to run through a battery of tests, then shown a test for one time and one time only and then asked do it. This person knows every step he makes is going to be crucial, but I think nerves sometimes play an impact on abilities or a person’s ability to recall the instructions. Because I see that a lot. I see them not recalling exactly what the officer told them. Because your mind is probably spinning at that precise moment.
B: Yeah, you’re scared. You’re afraid you might be going to jail, so it’s
M: Yeah, it can be nerve-wracking for anybody. Anybody, whether you’ve had nothing to drink or a bunch to drink. So the walk and turn essentially is the officer finds an area on the road that he believes is as level as can be and you walk 9 steps, heal to toe, in one direction and then the officer would ask you to pivot and walk 9 steps heal to toe back. And there’s two major points about this walk and turn test that causes some problems for some folks doing it. At the very beginning of the test, the officer is going to ask a person to take his right foot and put it in front of his left foot and hold that position. The officer is going to have that person have his heal to toe position and kind of hold that position while the officer is explaining the instructions. During that time is where you see a lot of difficulty with folks standing up. It’s an unusual position to be standing in, quite frankly, 25:48it’s not something that you would normally do. In a resting position you wouldn’t stand heal to toe like that and you find people have a hard time keeping that position. And then after the officer explains the instructions and the person is asked to walk 9 steps heal to toe, although it’s called a heal to toe test, the instruction does allow a little bit of space between your steps because you don’t want to be stepping on your feet basically and you have to account for some bigger shoes sometimes. And then you can pivot, and the pivot is – he’ll kind of explain what the pivot looks like – and you’ll pivot and walk 9 steps back. And the officer is looking for a lot things; your ability to remember the instructions, whether or not you walk off the line, whether or not you walk heal to toe, whether or not you sway or fall or use your arms for balance. So it’s a whole number of things and it’s aa difficult test for someone who’s quite frankly been impaired, let alone, I’ll be honest, it’s a difficult test probably for someone who’s never done it whether you’ve had nothing to drink. After that, and usually the final test, is the one leg stand. The one leg stand is where the person is told to hold one leg off the ground and keep their hands at their sides and keep the one leg off the ground for 30 seconds. They can pick whichever leg they want to use. The officer obviously in that point is detecting whether or not they follow instructions, whether or not they sway, whether or not they put their leg down, how many times they put their leg down. And again, at that point, if the officer believes he has seen enough to believe that the person is under the influence, he would take the person into custody and at that point transport him back to the jail.
B: 30 seconds, that’s actually kind of even physically hard too for some people, correct?
M: Right, and that’s the amazing thing about these field sobriety exercises. The exercises are designed, obviously to catch impairment in folks, but they’re also difficult tasks for some folks who have some issues. People who are overweight tend to have a much harder time performing that one leg stand that you’re talking about. People who are elderly, over a certain age, have a much more difficult time performing those exercises, because their balance tends to be impaired a little bit. As you age, your balance gets a little bit different. People who are injured, you know, someone who has a leg injury or maybe an old hip injury or maybe a back injury and standing on one leg may cause some pain, all of those folks are gonna be folks who are gonna perform differently than say this perfect athlete. And the actual field sobriety test asks the officer to take those things into account, before anyone takes a test, whether it be the HGN or anything, the officer asks the person whether or not they are sick or injured? What injuries they have? They try to document it. But it really doesn’t take into account, there’s a certain weight limit. There’s a certain, I don’t want to say weight limit, but once you’re I believe it’s 50 pounds over, I gotta correct that, but once you’re overweight by a certain amount, you’re gonna have a significant impact on your ability to perform these tests properly. And the officers don’t always take that into account, to be quite honest with you, and I’m sure a lot of them don’t even know that there’s kind of a weight standard. I’m sure they don’t even know there’s an age standard for what they’re supposed to look for when people are going through these tests.
29:18 B: So the standardized tests, those are the three main ones that the state of Florida does, correct? Is there any other ones that they do or is it just those three?
M: There are two more. There’s the Romberg Alphabet Test, which is where a person is asked to recite the alphabet without singing it. Without rhyming it or trying to do anything like that. They just say A B C D. And then the other test is the finger to nose test, which you may have seen before on any kind of television series, or television show. Where the person is asked to point their arm out and the officer will tell them which arm to place on the tip of their nose, and they’re graded. Those two are used less frequently, only because the officer a lot of times feels like his determination can be made with the first three tests that are performed.
B: But they could do all five?
M: The person could be asked to do all five, yes. So, at this point, let’s assume that someone’s gone through these tests, the officer determines that there’s probable cause to arrest the individual for driving under the influence. At this point, the person is placed in the handcuffs and it’s only at that point where the officer requests them to submit to a breath test. This is the most unknown thing about DUI’s in Florida is that you have to be arrested first before the officer is allowed to ask you to submit to a breath test. And the reason why that’s, I think the reason why that’s interesting is because if this person gets arrested and gets taken back to the jail and submits a breath test and the breath test is 000 – meaning there’s no alcohol in this person’s system whatsoever, that person is still gonna spend the night in jail, and still gonna have a DUI charge, because he’s been arrested. Once the arrest happens, that’s it. There isn’t anything you can do to get yourself out of jail from that point. So I almost wonder the point in providing samples, because you’re done. You’re arrested, you’re going to jail, and unless someone feels that they are certain that if they blew into that instrument it would show that they weren’t drinking and they could use that later to help in a trial. But it really is that once you’re arrested, you’re spending the night in jail.
B: So sometimes I would think, can you skip all these tests and give me the breathalyzer, they can’t do that because you have to be arrested first.
M: Yes, so you could say, “I want to skip the field sobriety exercise,” but that means that you’re gonna get cuffed, go to jail, and provide a sample at the jail.
B: So you’re basically refusing the field sobriety test and sending yourself to be arrested.
M:Right and there isn’t any providing a breath test to get out of being arrested. That doesn’t exist in Florida. So the bottom line is, if you find yourself sitting in front of an intoxilyzer, you are arrested and after you provide that sample, you are going to spend the night in jail. No matter what the sample is.