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The abominable snowman was arrested for drunk driving. The ‘arrest’ of the snowman was part of a campaign by the St. Helens Police Department to crackdown on drunk driving during the holidays. Although the arrest was fake, the message was real: DUI/OVI enforcement is increased during the holiday season.

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The holidays bring an increased volume of driving. According to AAA, holiday travel has increased consistently over the last nine years, and this year looks to be record-setting. In Ohio, nearly 4.5 million people are traveling for the holidays, and 90% of those are driving.

The holidays also bring an increase in accidents related to operating under the influence. The National Highway Traffic Safety Administration (NHTSA) reports that, over the last five years, an average of 300 people died in drunk driving crashes during the week between Christmas and New Year’s Day. In Ohio last year, ten OVI-related crashes resulted in 13 deaths during the Christmas holiday, according to the Ohio State Highway Patrol.

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During a recent OVI jury trial, the judge and I disagreed about the function of standardized field sobriety tests (SFSTs). During a sidebar, I argued the tests do not measure driving impairment; they predict blood alcohol concentration (BAC). The judge’s opinion was SFSTs measure impairment of driving ability. The judge’s opinion prevailed, despite being wrong, because the judge’s opinion always prevails in the judge’s courtroom (unless and until an appellate court says otherwise). This particular judge is intelligent, well-intentioned, and better educated on DUI/OVI issues than most judges and lawyers. If this judge misunderstands the purpose of SFSTs, it’s a topic worth addressing.

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A Very Brief History Of Standardized Field Sobriety Testing
Before the introduction of SFSTs, law enforcement officers used a variety of non-standardized tests to help them decide whether to arrest a person for drunk driving. Beginning in 1975, the National Highway Traffic Safety Administration (NHTSA), sponsored research which resulted in the development of standardized field sobriety tests. That research also led to the NHTSA manual: “DWI Detection And Standardized Field Sobriety Testing”.

Subsequent to the original publication of the manual, NHTSA conducted multiple validation studies. Those studies have evaluated the SFSTs in various environments and have examined multiple factors affecting the tests. The reports from the studies are clear: what’s being evaluated is the effectiveness of the SFSTs to predict BAC, not driving impairment.

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Vegas-2017-strip-closed-300x201A few hours before the Las Vegas shooting, I checked-in at the Monte Carlo, four ‘doors’ down from Mandalay Bay. I was there to attend the DUI defense seminar presented by the National College for DUI Defense (NCDD). The desk clerk said the Monte Carlo was being renovated (no pool, no spa, nearly no restaurants), and she offered to move me to Mandalay Bay. I decided to stay at the Monte Carlo and just use the pool at Mandalay Bay. My body was still on Ohio time, so I was going to bed when the shooting started. I was aware there was a lot of noise (apparently, the Monte Carlo was locked-down), so I put in earplugs and went to sleep.

Vegas-2017-news-reporter-300x225The next morning, I woke up and learned the nation’s largest mass shooting took place just down the Strip. Still on Ohio time, and traveling with an Ohio police officer, I walked down to the area. Witnesses were returning from police interviews: draped in hotel towels, crying, and wearing outfits obviously selected for a country music concert. News reporters, like the one pictured here, were reporting on the incident from every angle.

 

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And then there was the police presence. Law enforcement had Las Vegas Boulevard shut down south of Tropicana Avenue. Police cruisers and motorcycles lined Las Vegas Blvd. from one end of the Strip to the other. Groups of officers were stationed outside each resort.

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Lawyers disagree on what part of a trial is the most important. Some lawyers say the closing argument is the most important part because that’s when we tie everything together and persuade. Others say the closing doesn’t matter much: trials are lost or won during jury selection. Still others say the most critical phase of a trial is cross-examination.

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Cross-examination was the subject of a recent workshop in Charleston, South Carolina (a couple days after Hurricane Irma hit!), and I was part of the faculty for the workshop. The workshop was part of a three-day seminar presented by the DUI Defense Lawyers Association (DUIDLA), and first two days of the seminar were lectures on various DUI/OVI topics. The third day was a trial skills workshop focused on improving the attendees’ cross examination skills.

 

In DUI/OVI cases, cross examination is very important. In all OVI trials, the defense attorney cross-examines the prosecution witnesses. In many OVI trials, there are no defense witnesses testifying, so all of the testimony comes from the prosecution witnesses. Therefore, it is critical for those prosecution witnesses to be effectively cross-examined.

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When a machine is given the power to convict a person of a crime, we should be absolutely certain the machine is working properly. In Ohio, machines are used to measure the concentration of alcohol in the breath of drivers. A driver who operates a vehicle with a breath alcohol concentration of .080 or more is guilty of OVI, even if that person’s ability to drive was not impaired by the alcohol. As breath-testing machines have that much power, the accuracy and precision of the machines is critical, so they are subjected to a weekly instrument check. A recent case by an Ohio appellate court downplays the importance of those weekly instrument checks.

The case is State v. Hicks. In that case, Hicks was arrested for OVI and taken to a police station for a breath test. The result of the breath test was over .080, so Hicks was charged with OVI ‘per se’. The defense lawyer filed a motion to suppress the breath test, and the judge held a hearing on that motion.

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Breath Testing Machines Must ‘Pass The Test’ Each Week
For a breath test result to be admissible as evidence, the prosecution must prove, among other things, at least two critical facts: (1) the machine was working properly at the time of the defendant’s test; and (2) the machine was maintained in substantial compliance with the regulations in the Ohio Administrative Code (OAC).

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The reasonable person. Courts make many decisions using the test of what ‘a reasonable person’ would do/think/feel under certain circumstances. Older cases used the ‘reasonable man’ standard, but newer cased have modernized the test with gender neutrality. In the recent case of Cleveland v. Oles, the Ohio Supreme Court concluded a reasonable person stopped by a police officer and placed in a cruiser would not necessarily believe he or she is ‘in custody’, so Miranda warnings are not required.

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To properly understand the Oles decision, one must first understand the Miranda warnings. Everyone seems to be familiar with the warnings from movies and television (iTunes and Netflix for those born after 1999). Few people, however, seem to understand their origin, development and interpretation.

The United States Constitution and the Ohio Constitution both protect our right against self-incrimination. The the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution contain essentially the same language: ‘no person ‘shall be compelled in any criminal case to be a witness against himself’.

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In his book Good To Great, Jim Collins discusses ‘the hedgehog concept’. The concept is essentially this: although the fox is a cunning predator, the hedgehog always defeats the fox because the hedgehog focuses on doing one thing well – it rolls into a ball of spiky quills the fox cannot penetrate. The hedgehog concept applies to practicing law: focusing on one narrow area of law and doing it well leads to expertise and effectiveness. In the narrow area of DUI/OVI defense, one great way to learn is attending advanced level seminars like the summer session of the National College for DUI Defense (NCDD).

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I recently attended the NCDD summer session at Harvard Law School. Over the course of three days, some of the best DUI lawyers in the country discussed advanced topics in DUI defense. The seminar included lectures, demonstrations, and workshops. Additional learning took place informally each night as the lawyers exchanged ideas, tactics, and best practices.

While all the presentations were informative, there were two presentations which stood out to me: one about metrology, and one about pharmacology. The metrology presentation discussed the uncertainty involved in measurements and explained common failures in the measurement of blood alcohol concentration. The pharmacology presentation compared the work of law enforcement Drug Recognition Experts to that of pharmacologists in DUI/OVI cases involving drugs other than alcohol.

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This is the week of July 4th.  For some, that means celebrating our nation’s independence with burgers, beer and boats.  As alcohol is often mixed with boating, people are prosecuted and punished for boating under the influence (BUI).  But how do law enforcement officers determine if a person’s ability to operate a boat is impaired by alcohol?

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Standardized Sobriety Tests And Sea Legs
Law enforcement officers have historically investigated BUI using the same Standardized Field Sobriety Tests (SFSTs) as those used for DUI / OVI cases on land.  Those tests include the Horizontal Gaze Nystagmus (HGN), the Walk And Turn (WAT) and the One Leg Stand (OLS) tests.

 

In 1990, the U.S. Coast Guard, in conjunction with the International Association of Chiefs of Police (IACP), conducted a study regarding the utility of the SFSTs in the marine environment.  The report from the study concludes the use of the SFSTs is effective for making the correct arrest decision, and the accuracy of the tests is not degraded in the marine environment.  The report was later criticized because it ignored the effect of ‘sea legs’ on test performance.

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Fourth amendment law does not lend itself to mathematical formulas. Rather than using equations to decide Constitutional issues, courts look at the totality of the circumstances and make decisions on a case-by-case basis. This is particularly true when it comes to the issue of whether an officer had probable cause to justify an arrest. However, one theorem illustrated by a recent Ohio OVI case is this: clues on Field Sobriety Tests (FSTs) does not equal Probable Cause (PC).

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The case is State v. Kopp. An officer observed the rear license plate was not functioning on Kopp’s vehicle. The officer ran the vehicle’s license plate, which he could read even without the license plate light, and learned the owner of the vehicle had an expired driver license from the state of Ohio. The officer stopped the vehicle. Before stopping the vehicle, the officer had not observed any evidence the driver may be under the influence.

After stopping the vehicle, the officer learned the driver, Kopp, had a valid driver license from the state of Georgia. During the stop, the officer observed the odor of fresh marijuana, as well as the odor of alcohol, and Kopp admitted to smoking marijuana. The officer also noted Kopp’s eyes were very glassy and somewhat bloodshot. The officer asked Kopp to get out of the vehicle for field sobriety testing.

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After Tiger Woods’ recent DUI arrest, he issued a statement in which he said, “I want the public to know alcohol was not involved.  What happened was an unexpected reaction to prescribed medications.”  Prescription medications, as well as non-prescribed drugs, account for an increasing number of DUI/OVI cases in Ohio and throughout the United States.  Tiger’s situation very publicly spotlights the complicated problem of drugged driving.

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The Effects Of An Unexpected Reaction

At about 3:00 am on Memorial Day, a police officer found Tiger asleep at the wheel of his Mercedes.  The car was parked, partially on the road, and the engine was running.  The officer approached Tiger and woke him.  The officer noticed Tiger was sluggish and observed Tiger’s speech was slow and slurred.  When asked where he was going, Tiger said he was coming from L.A. and going to Orange County.  He was actually in Jupiter, Florida.

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