DUI Defense 2017-05-18T15:26:24+00:00

THE DUI

This test has been the most widely attacked by DUI attorneys. The major reason being that the horizontal gaze nystagmus is a science test. Police officers are not scientists.

Nystagmus is a shakiness that occurs in the eyeball there’s some form of disturbance in the inner ear. The HG and is an involuntary motion, meaning the person exhibiting the nystagmus cannot control it. Therefore, the test taker is unaware that their eye is bouncing as they are attempting to follow the officers instructions.

While alcohol may cause the shakiness, so can influenza, strap, infections, vertigo, measles, syphilis, muscular dystrophy, multiple sclerosis, brain hemorrhage, epilepsy, eyestrain, I muscle fatigue, hypertension, motion sickness, sunstroke, may all result in gaze nystagmus.

Many times, this examination is given undue weight since fatigue can be a cause of gaze nystagmus, while at the same time most DUI arrests occur late nights after the subject has been awake since morning.

Scoring the test, if the subject exhibits

  • lack of smooth pursuit,
  • distinct nystagmus at maximum deviation,
  • onset of nystagmus prior to 45°,
Then they have failed.
The subject needs to stand in a heel to toe fashion with arms at the sides while the officer gives his or her instructions. The officer will then tell the subject to take the nine steps, heel to toe, along a straight line.

Many times, the straight line is an imaginary length and an imaginary width. The officer will tell the subject to place their left foot on the “line” with their right foot right behind it and to begin the test when the officer says “begin.”

If the subject exhibits two of any of the following:

  • Cannot keep balance
  • Starts to soon
  • Stops walking
  • Misses heel-to-toe
  • Steps off the “line”
  • Raises arms while walking
  • Takes the wrong number of steps
  • Turns improperly,
Then they have failed.
The one leg stand test requires the subject to stand on one leg, while the other leg is extended in front of them. They are to raise their foot in a stiff-leg manner 6 inches off the ground and are told to count “one thousand and one, one thousand and two, one thousand and three…” and so on.

The test requires “reasonably dry, hard, level, and non-slippery surface.” Subjects that are over age 65, have back, leg or middle ear problems, or are over 50 pounds overweight have significant difficulty in performing this test. Subjects with heels more than 2 inches high are to be given an opportunity to remove their shoes.

If the subject exhibits two of any of the following:

  • Sways while bouncing
  • Uses arms to balance
  • Puts foot down
  • Hops
  • Then the subject has failed this test.
At this point, the police officer will ask the subject to take a portable breath test “PBT”. This portable breath device is unreliable enough where it will not be allowed at trial. It can only go to show the officer had a reason to make an arrest. The device itself is delicate and can be affected by weather or external factors, such as being in the trunk of a police car.

After the portable breath test is given, the subject will be placed under arrest and transported to the police station. While at the police station, the subject will be processed.

There must be a 20 minute wait time, or observation period, before a breath test can be done. In that timet the subject will be asked many questions which will seem irrelevant. The police officer will ask questions, such as:

  • Were you operating a vehicle?
  • What street were you on?
  • Where did you start from?
  • What time is it now?
  • What city are you in now?
  • When did you last eat?
  • Do you take insulin?
  • When did you last sleep?
  • Are you wearing false teeth?
  • Where were you going?
  • Did you get a bump on the head today?
  • Have you been injured lately?
  • Do you have a glass eye?

These are all questions from actual police reports. Some of the questions are actually relevant. False teeth and dentures may affect a blood-alcohol reading because they may keep alcohol in the mouth. Just as tongue piercings can also do the same

The subject will be asked to blow into a breathalyzer machine. Once that machine registers at above .08 blood alcohol content, the subject will be placed under arrest for driving while under the influence of alcohol.

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