Shawnee Kansas driving under the influence (drunk driving/DUI/DWI) lawyers-attorneys
The attorney and staff in our Johnson County law office help hundreds of drivers charged with driving under the influence (DUI/DWI) or other traffic matters in Shawnee, KS and elsewhere in Johnson County every year
The State of Kansas and City of Shawnee have tough DUI laws with jail time mandatory on every conviction, even for first time offenders. When combined with stepped up enforcement efforts by Shawnee Police Officers, hundreds of people are being charged with DUI in Shawnee and Johnson County each year.
Someone charged with a DUI in Shawnee, is facing jail time, hundreds or thousands of dollars in fines, a driver's license suspension, as well as the embarrassment and lost time that will result from the conviction. Consequently, quick intervention by an experienced Shawnee DUI attorney is necessary to protect your rights, property, liberty, and to maintain your license.
At the Law Offices of Jeremiah Johnson, LLC, our staff and DUI attorneys recognize that everyone is innocent of a Shawnee DUI charge until proven guilty and that being charged with an Shawnee DUI charge is not remotely the same as being convicted of an Shawnee DUI.
While many people (and unfortunately, many attorneys) accept DUI tests as irrefutable evidence, in reality, Breathalyzers and field side sobriety tests (FST's) can be highly inaccurate under certain conditions. In addition, some people might not be able to pass them even when sober.
We believe that the FST's and Breathalyzers used are some of the most inaccurate and unreliable methods of gathering evidence in all of law enforcement. As a result, our Shawnee DUI lawyers diligently and aggressively explore every angle relating to the FST's and Breathalyzer (Intoxilyzer) results when evaluating your Shawnee DUI case to ensure that your rights are protected.
While diligently scouring all of the facts and circumstances of an Shawnee DUI case seems to make sense, not all attorneys approach Shawnee DUI charges in this manner. In fact many Shawnee DUI attorneys approach DUI cases expecting to plea the case before they've even had a chance to review the evidence. The problem with this approach is that important facts which could lead to an acquittal may be missed or even purposely ignored in an effort to quickly work out a plea and move on to another case.
This office approaches every Shawnee DUI charge expecting to go to trial. However, if after evaluating a case, we decide that a plea deal is in the client's best interests, then we will certainly recommend that option. The bonus to such an approach is this: experience has shown that the best deals are offered to attorneys who are prepared to go to trial and possess a willingness to do so.
In almost all Shawnee and Kansas DUI cases, you only have 14 days from your Shawnee DUI arrest to request an ADMINISTRATIVE HEARING hearing to determine if your license will be suspended, and if so, for how long. Suspensions can range from as low as 30 days to forever! Thus, it is highly suggested that you retain an experienced Shawnee Kansas DUI attorney immediately to protect your rights and driving privileges.
Shawnee Driving Under the Influence (DUI) charges/arrests involve two distinct and separate aspects: (1)the criminal proceedings, which are resolved in the municipal or district court where the case is charged and can result in fines and/or jail time; and (2)the Kansas Department of Revenue administrative proceedings, which can result in the suspension of your driving privileges. It is extremely important to pay attention to both the criminal court case and the administrative driver's license case, as the deadlines, rules, procedures and burdens of proof are entirely different.
At the administrative level, the Kansas Department of Revenue is attempting to take your license from you for a stated period of time, or in some cases, forever. They do not care if you have no other means to get to work and they do not care if your family will be affected by the loss of your license. They do not offer hardships either, regardless of your situation.
The term of a Shawnee driver's license suspension that you face depends upon several factors, including: (1)whether you failed the chemical test (Intoxilyzer) or whether you refused to submit to it; (2)your intoxilyzer reading; (3)whether this is your first or subsequent test failure or refusal; and (4)whether you are over or under 21 years of age. The length of the suspension ranges from 30 days to permanent revocation of driving privileges, please call us for more information about your specific case.
People charged with an Shawnee, Kansas DUI are entitled to an administrative hearing where you or your Shawnee, Kansas DUI lawyer can challenge the grounds upon which your license is suspended.
If you or your Shawnee, Kansas DUI attorney requests an administrative hearing in a timely manner, your driving privileges cannot be suspended until a decision has been made by the hearing officer. In other words, the validity of your temporary driving privileges is extended until after the hearing which is frequently scheduled months after the request. In Johnson County, DUI Administrative Hearings are usually scheduled at least 3 months after the Shawnee, Kansas DUI arrest. Prior to the hearing, you can subpoena certain documents and witnesses who may have information about your case.
At the Kansas DUI administrative hearing, a number of issues can be raised in your defense, depending on the facts of your case. These issues include: (1)whether or not the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol or drugs; (2)whether you were given the legally required notices before being asked to submit to testing; (3)whether your actions constituted a legal refusal to take the test; (4)whether the testing equipment and the officer operating the machine were certified by the Kansas Department of Health and Environment (KDHE); (5)as well as other due process or other constitutional issues.
If you are successful at the Kansas Department of Revenue administrative hearing, or if the officer fails to appear without requesting a continuance of the hearing in writing, your license may not be administratively suspended at all. However, you or your Shawnee Kansas DUI attorney must send a letter requesting an administrative hearing to the Kansas Department of Revenue within 10 calendar days of the day you received the DUI or your driving privileges will automatically be suspended, period. Thus, it is critical that you quickly retain a well-qualified Shawnee DUI defense lawyer as soon as possible after the arrest.
Shawnee, Kansas DUI criminal cases may result in fines, jail time, court-ordered suspension of your driving privileges (in addition to the suspension from an administrative hearing), and the potential impoundment of your vehicle. The amount of fine and the length of the jail sentence are determined, in large part, by whether you have previously been convicted, or placed on diversion for an Shawnee DUI. In general, a first time offense calls for a 6 month maximum sentence, and the potential incarceration period goes up from there. It rarely matters where or how long ago a prior conviction occurred. Now, almost all prior DUI convictions (whether in Kansas or another state) and DUI diversions count, regardless of where or how long ago they occurred.
FIRST Shawnee DUI CONVICTION
A first conviction for an Shawnee, DUI is a Class B misdemeanor offense. The potential sentence is up to but not more than six months in jail . If convicted, the defendant must serve at least 48 consecutive hours in custody by statute before probation can begin, unless the court allows the person complete 100 hours of community service instead of the mandatory minimum 48 hours in custody. A skilled Shawnee DUI attorney might also be able to enroll the defendant in (CWIPS) which is a weekend in "custody" in a motel like facility. The fine for a first conviction ranges between $500 and $1,000. At the administrative level, driving privileges are suspended for 30 days, followed by 330 days of restrictions for test failure. For a test refusal, driving privileges are suspended for a full year if this is the first time a defendant has refused to submit to the breathalyzer. The driver must undergo a drug and alcohol evaluation and will be required to successfully complete any and all treatment is recommended by the evaluator.
SECOND Shawnee DUI CONVICTION
A second conviction for an Shawnee, DUI (or any other DUI in Kansas) is a Class A misdemeanor offense with a sentence as long as one full year. The defendant must serve at least five consecutive days in custody as a prerequisite to probation, but after hearing arguments from a skilled Shawnee DUI attorney, the judge can order the defendant to serve 48 hours in custody followed immediately by at least 3 consecutive days of work release or house arrest to satisfy the 5-day requirement. As with a first offense, completion of a substance abuse treatment program is required. The fine for a second conviction ranges from $1,000 to $1,500. At the administrative level, driving privileges are suspended for one year followed by one year of ignition interlock restrictions for a test failure.
THIRD Shawnee KANSAS DUI CONVICTION
A third conviction for an Shawnee DUI (or any other Kansas DUI) is felony punishable by up to 12 months in prison. The mandatory minimum underlying sentence is 90 days; however, after hearing arguments from a skilled Shawnee DUI attorney, the judge can order the defendant to serve 48 hours in custody followed immediately by at least 88 consecutive days of work release or house arrest to satisfy the 90-day custody requirement. The fine for a third conviction ranges from $1,500 to $2,500. At the administrative level, the term of suspension for a test failure is the same as for a second offense: one year suspension of driving privileges followed by one year of interlock restrictions. In addition, post release supervision will be required for a 5th Kansas DUI conviction.
FOURTH Shawnee KANSAS DUI CONVICTION
A fourth conviction for an Shawnee DUI is also a felony. Like a third conviction, there is a minimum sentence of 90 days and a maximum sentence of 12 months in prison. However, after arguments by an Shawnee DUI attorney are made, a person convicted of a fourth or subsequent DUI, might be ordered to only serve 72 hours in jail before being eligible for a work release program. The fine for a fourth conviction is at least $2,500. Upon a fourth DUI conviction in Kansas, driving privileges are suspended for one year followed by one year of interlock restrictions for a test failure. If there is a fifth conviction, driving privileges are permanently revoked regardless of whether the driver refused or failed the test. In addition, post release supervision will be required for a 5th Kansas DUI conviction.
The Kansas DUI laws allow for diversion for first time offenders which allows a defendant to avoid serving a jail sentence. The City of Shawnee also has a diversion program which can be advantageous in certain cases where there are not good triable issues in a case.
An Shawnee DUI Diversion is essentially a contract between the charging jurisdiction and the Shawnee DUI defendant in which the person charged gives up his or her right to a speedy trial and his or her right to a jury trial, in exchange for an opportunity to "avoid" a conviction for DUI. Under the diversion agreement, you will be required to pay a fine; attend an alcohol and drug safety action program or treatment program, or both; use no alcohol or drugs; and fulfill whatever other terms and conditions the city or state requires. It essentially requires you to complete all the requirements of a probation, without actually ever having been placed on probation.
A Shawnee DUI Diversion has one real benefit: If, at the completion of the diversion period you have completed all the requirements of the contract, the criminal charge of DUI is "dismissed." However, if you do not successfully complete the requirements of the Diversion contract, the criminal case against you will be reinstated and your trial will be conducted on stipulated facts, meaning that there will be no opportunity to cross examine witnesses, present new evidence, or mount any meaningful defense. In addition, the diversion will count as a "conviction" for subsequent DUI charges. For instance, if a person were granted a diversion and then later in life were charged with another DUI, the DUI would count as a second, even though they were never convicted on their first charge.
In many cases, the only difference between a diversion and a conviction consist of only the 48 hours in custody. As a result, this office often recommends that those charged with a first time Shawnee DUI seriously consider fighting the charge, especially if their case has some good legal issues with which an acquittal might be secured.
As a result, anyone charged with a DUI in Shawnee has their liberty, money, and license at jeopardy. This makes contacting an Shawnee DUI lawyer extremely important.
If you're looking for a Shawnee, Kansas DUI lawyer, call 913-764-5010 today.
How can a person be acquitted of a DUI charge in Shawnee, Kansas?
If you're reading this page, that is undoubtedly the question on your mind. The final answer is not a simple one and cannot be given without consulting an experienced Shawnee, Kansas DUI lawyer.
Relevant factors for securing an acquittal or dismissal of an Shawnee DUI may include:
1. The lack of a lawful reason to stop your vehicle - If the police stopped your vehicle without a lawful reason, all evidence gathered as a result may be suppressed - meaning not allowed into evidence. This analysis can swing on tiny issues and requires careful scrutiny, best done by a diligent attorney. Contrary to popular belief, weaving within one's lane of traffic is not illegal, but can be used as a valid reason to pull a person over in certain circumstances.
2. Improper testing - Certain tests such as touching one's nose with a finger, walking and turning, reciting the alphabet backwards, counting, or balancing on one leg may not be admissible into evidence as they are not necessarily recognized as being a valid indicator of one's intoxication. In other cases, mitigating factors such as prior injuries or medical conditions may render such tests unreliable. Other conditions such as wind, rain, cold, or snow may come in with other factors to cast doubt on these tests as well.
3. The lack of probable cause to believe a person is drunk - The police must make specific observations to conclude that they have probable cause to arrest a person for a DUI.Portable breath tests (also known as PBT's) - These tests are often not admissible into evidence as they are often not entirely accurate. In addition, the officer administering the test must do so properly for the indication to provide probable cause to arrest someone.
4. The Breathalyzer test may not be reliable - If the test is not reliable, it may not be able to be used against you in court. Reasons to exclude an breathalyzer/intoxilyzer test from evidence include a machine with an expired license, a machine with an inexperienced operator, a machine operating incorrectly, or an unlicensed machine operator.
5. Evidence may be the product of an illegal search - The police may not search a car simply because it has been pulled over for speeding or some other minor traffic offense - they must have some suspicion of criminal wrongdoing or consent from the driver. Any evidence that is the product of an illegal search would likely be inadmissible in court.
6. Medical and Health problems - These can factor into a court's analysis in determining whether a suspect gave police evidence that they had been drinking or were impaired.
7. Many other conditions unique to your case.
The Inherent Flaws of DUI Testing, Including Field Side Sobriety Testing:
In most Shawnee DUI cases, the strongest pieces of evidence for the City of Shawnee come from the Intoxilyzer and field side sobriety test (FST) results. These tests are both highly flawed and can be challenged by an experienced Shawnee DUI attorney.
1. Horizontal Gaze Nystagmus Test (HGN Test):
What is Nystagmus and why is it tested?
Nystagmus is a natural, normal phenomenon involving the involuntary jerking of the eyes. Alcohol and certain other drugs do not cause nystagmus, but may exaggerate or magnify it. NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII p.3 (2000)
What are the Causes of Exaggerated Nystagmus?
Possible causes of nystagmus other than the use of alcohol include: problems with the inner ear labyrinth; irrigating the ears with warm or cold water; influenza; streptococcus infection; vertigo; measles; syphilis; arteriosclerosis; Korchaff's syndrome; brain hemorrhage; epilepsy; hypertension; motion sickness; sunstroke; eye strain; eye muscle fatigue; glaucoma; changes in atmospheric pressure; consumption of excessive amounts of caffeine; excessive exposure to nicotine; aspirin; circadian rhythms; acute head trauma; chronic head trauma; some prescription drugs; tranquilizers; pain medication and anti-convulsant medication; barbiturates; disorders of the vestibular apparatus and brain stem; cerebellum dysfunction; heredity; diet; toxins; exposure to solvents; extreme chilling; eye muscle imbalance; lesions; continuous movement of the visual field past the eyes; and antihistamine use.
Recommended Procedures of Horizontal Gaze Nystagmus per the National Highway Transportation Safety Administration:
The procedures for giving the standardized horizontal gaze nystagmus test are as follows:
"Begin by asking "are you wearing contact lenses", make a note whether or not the suspect wears contact lenses before starting the test.
"If the suspect is wearing eyeglasses, have them removed.
"Give the suspect the following instructions from a position of interrogation (FOR OFFICER SAFETY KEEP YOUR WEAPON AWAY FROM THE SUSPECT):
"I am going to check your eyes."
"Keep your head still and follow the stimulus with your eyes only."
"Keep focusing on this stimulus until I tell you to stop."
"Position the stimulus approximately 12-15 inches from the suspect's nose and slightly above eye level. Check the suspect's eyes for the ability to track together. Move the stimulus smoothly together or one lags behind the other. If the eyes don't track together it could indicate a possible medical disorder, injury, or blindness.
"Next, check to see that both pupils are equal in size. If they are not, this may indicate a head injury.
"Check the suspect's left eye by moving the stimulus to your right. Move the stimulus smoothly, at a speed that requires about two seconds to bring the suspect's eye as far to the side as it can go.
While moving the stimulus, look at the suspect's eye and determine whether it is able to pursue smoothly . Now, move the stimulus all the way to the left, back across suspect's face checking if the right eye pursues smoothly. Movement of the stimulus should take approximately two seconds out and two seconds back for each eye. Repeat the procedure.
"After you have checked both eyes for lack of smooth pursuit, check the eyes for distinct nystagmus at maximum deviation beginning with the suspect's left eye. Simply move the object to the suspect's left side until the eye has gone as far to the side as possible. Usually, no white will be showing in the corner of the eye at maximum deviation. Hold the eye at that position for about four seconds, and observe the eye for distinct nystagmus. Move the stimulus all the way across the suspect's face to check the right eye holding that position for approximately four seconds. Repeat the procedure.
"After checking the eyes at maximum deviation, check for onset of nystagmus prior to 45 degrees. Start moving the stimulus to the right (suspect's left eye) at a speed that would take about four seconds for the stimulus to reach the edge of the suspect's shoulder. Watch the eye carefully for any sign of jerking. When you see it, stop and verify that the jerking continues. Now, move the stimulus to the left (suspect's right eye) at a speed that would take about four seconds for the stimulus to reach the edge of the suspect's shoulder. Watch the eye carefully for any sign of jerking. When you see it, stop and verify that the jerking continues. Repeat the procedure. NOTE: It is important to use the full four seconds when checking for the onset of nystagmus. If you move the stimulus too fast, you may go past the point of nystagmus or miss it altogether. If the suspect's eyes start jerking before they reach 45 degrees, check to see that some of the white of the eye is still showing on the side closest to the ear. If no white of the eye is showing, you have either taken the eye too far to the side (that is more than 45 degrees) or the person has unusual eyes that will not deviate very far to the side.
"NOTE: Nystagmus may be due to causes other than alcohol. These other causes include seizure medications, PCP, inhalants, barbiturates, and other depressants. A large disparity between the performance of the right and left eye may indicate a medical condition."
Source: NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII pp. 6-8 (2000).
Most Importantly, Scoring of the Horizontal Gaze Nystagmus Test:
The three clues for the HGN test in each eye are as follows:
- The eye cannot follow an object smoothly
- Nystagmus is distinct when the eye is at maximum deviation
- The angle of onset of nystagmus is prior to 45 degrees.
As per the NHTSA Training Manuals, if you observe four or more clues total for both eyes, it is likely that the suspect's BAC is above 0.10. Using this criterion you will be able to classify correctly about 77% of your suspects with respect to whether they are above 0.10.
2. WALK-AND-TURN TEST
a. Procedures for the Walk-and-Turn Test
There are two basic parts to the Walk-and-Turn test: the balance stage and the walking stage.
Prior to the beginning of the test, always ask the suspect if he has had any injuries or other conditions which might affect his ability to walk or balance, including head, back, neck and leg injuries.
The following are the Standard Procedures for the Walk-and-Turn test:
"For standardization in the performance of this test, have the suspect assume the heel-to-toe stance by giving the following verbal instructions, accompanied by demonstrations:
- 'Place your left foot on the line' (real or imaginary). Demonstrate.
- 'Place your right foot on the line ahead of the left foot, with the heel of the right foot against the toe of the left foot'. Demonstrate.
- 'Place your arms down at your sides'. Demonstrate.
- 'Keep this position until I tell you to begin. Do not start to walk until told to do so'
- 'Do you understand the instructions so far?' (Make sure suspect indicates understanding.)
"Explain the test requirements, using the following verbal instructions, accompanied by demonstrations:
- 'When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back.' (Demonstrate 3 heel-to-toe steps.)
- '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' (Demonstrate)
- '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?' (Make sure suspect understands)
- 'Begin, and count your first step from the heel-to-toe position as 'One'.'
NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII pp. 9-10 (2000)
b. Scoring and Interpretation of the Walk-and-Turn Test
The following are the NHTSA standardized clues for the Walk-and-Turn Test:
- Cannot keep balance while listening to instructions . Record this clue only if the suspect does not maintain the heel-to-toe position throughout the instructions. The feet must actually break apart. Don't record this clue if the suspect merely sways or uses arm for balance.
- Starts before instructions are finished . Record this clue if the suspect starts after being told not to start walking 'until I tell you to begin'.
- Stops while walking . The suspect pauses for several seconds. Do not record if the suspect is merely walking slowly.
- Does not touch heel-to-toe . Record this clue if there is more than one-half inch of space between the heel and toe on any step.
- Steps off the line . The suspect steps so that one foot is entirely off the line.
- Uses arms to balance . The suspect raises one or both arms more than 6 inches from the sides in order to maintain balance.
- Improper Turn . The suspect removes the front foot from the line while turning. Also record this clue if the suspect has not followed directions as demonstrated, i.e. spins or pivots around.
- Incorrect Number of Steps . Record this clue if the suspects takes more or fewer than nine steps in either direction.
Each clue is only scored one time even if more than one fault is seen. Two or more clues correctly classifies 68% of the suspects as having a BAC of 0.10 or above. The officer should limit his movement while the suspect is performing the test so as not to distract the suspect.
c. Test conditions for the Walk-and-Turn Test
According to NHTSA, the Walk-and-Turn Test requires a line that the suspect can see, and should be performed on a dry, hard, level, nonslippery surface. Original research indicated that persons with back, leg, middle ear problems, persons 50 pounds or greater overweight, and those over 65 years of age, had difficulty performing the test. (NOTE: Later NHTSA manuals have removed the weight comment, and also inserted the phrase 'imaginary line' at the instruction phase, even though original research always used a visible line.)
Individuals wearing heels more than 2 inches high should be given the option of removing their shoes.
3. ONE-LEGGED STAND TEST
a. Procedures for the One-Legged Stand Test
"Initiate the test by giving the following verbal instructions, followed by demonstrations.
- 'Please stand with your feet together and your arms down at your side, like this.' (Demonstrate)
- 'Do not start to perform the test until I tell you to do so.'
- 'Do you understand the instructions so far?' (Make sure suspects indicates understanding.)
"Explain the test requirements, using the following verbal instructions, accompanied by demonstrations:
- 'When I tell you to start, raise one leg, either leg, approximately six inches off the ground, foot pointed out.' (Demonstrate one leg stance)
- '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.' (Demonstrate a count, as follows: 'one thousand and one, one thousand and two, one thousand and three, etc.' Officer should not look at his foot when conducting the demonstration - OFFICER SAFETY.)
- 'Keep your arms at your sides at all times and keep watching the raised foot.'
- 'Do you understand?' (Make sure suspect indicates understanding.)
- 'Go ahead and perform the test.' (Officer should always time the 30 seconds. Test should be discontinued after 30 seconds.)
"Observe the suspect from a safe distance. If the suspect puts the foot down, give instructions to pick the foot up again and continue counting from the point at which the foot touched the ground. If the suspect counts very slowly, terminate the test after 30 seconds."
NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII p. 12-13 (2000)
b. Scoring and Interpretation of the One-Legged Stand Test
The NHTSA manual states that the officer should look for the following clues:
"A. The suspect sways while balancing . This refers to the side-to-side or back-and-forth motion while the suspect maintains the one-leg stand position.
B. Uses arms for balance . Suspect moves arms 6 or more inches from the side of the body to keep balance.
C. Hopping . Suspect is able to keep one foot off the ground, but resorts to hopping in order to maintain balance.
D. Puts foot down . The suspect is not able to maintain the one-leg stand position, putting the foot down one or more times during the 30-second count."
NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII p. 13-14 (2000)
If the suspect scores two or more clues, there is a good chance his BAC is 0.10 or above, according to the original research. Using that criterion, you will accurately classify 65% of the people tested.
Officers must remain relatively motionless and observe the suspect from a safe distance so as to not interfere. If the suspect counts slowly, terminate the test after 30 seconds.
c. Test conditions for the One-Legged Stand Test
According to the 2000 NHTSA Manual, the surface must be level, dry, and a non-slippery surface. Persons 65 years of age, 50 pounds or more overweight, and those with leg, back and middle ear problems will have difficulty performing the test.
However, earlier editions of the standardized field sobriety testing student manuals from NHTSA contain much stronger language, such as the following:
"Certain individuals are likely to have trouble with this test even when sober. People over 60 often have very poor balance. (Since very few elderly people are stopped at roadside, specific guidelines have not been established for them on this test.)....In administering the test, make sure the suspects eyes are open and there is adequate lighting for him to have some frame of reference... In total darkness, the One-Leg Stand is difficult even for sober people." NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., Improved Sobriety Testing, DOT-HS-806-512, p. 7 (1984).
D. SCIENTIFIC CRITICISMS OF THE STANDARDIZED FIELD SOBRIETY TESTS
Many experts have questioned the accuracy of the standardized field sobriety tests, the statistical data behind SFSTs, and the ability of officers to properly administer and interpret SFSTs in the field.
In one particular study, individuals who were completely sober were asked to perform the sfst's and also a set of 'normal-abilities' tests. The 'normal-abilities' test was comprised of exercises and questions which should be well known to individuals, such as one's address, phone number, and walking in a normal manner.Performances for each type of test were then videotaped. 14 police officers were asked to view the videotapes of the 21 sober individuals with 0.00 blood alcohol concentrations doing sfst's and normal-abilities testing. After viewing the 21 videos of sober individuals taking the standardized field tests, the police officers' believed that forty-six percent of the individuals had "too much to drink". Fifteen percent of the officers viewing the normal-abilities videos thought the individuals had too much to drink. S. Cole & R.H. Nowaczyk, Field Sobriety Tests: Are They Designed for Failure?, Perceptual and Motor Skills, Vol. 79, pp. 99-104 (1994). The authors concluded that SFSTs must be held to the same standards the scientific community would expect of any reliable and valid test of behavior, and that SFSTs should be examined and judged critically.
In another study, the authors concluded that the HGN test has a high baseline error and a dose/response relationship that varied greatly depending on whether the subject's BAC was falling or rising. In 52 videotapes of actual arrests for DUI, the authors found that the HGN test was improperly administered 51 times. JL Booker, End-position nystagmus as an indicator of ethanol intoxication, Science and Justice 2001: 41(2): 113-116 (2001)
In another study, a series of experiments was performed at the Rutgers University Alcohol Behavior Research Laboratory to test the ability of social drinkers, bartenders, and police officers to gauge the sobriety of individuals. All three subject groups - the social drinkers, bartenders, and police officers- correctly judged the subjects level of intoxication only 25 % of the time. Psychology, Public Policy and the Evidence for Alcohol Intoxication, American Psychologist p.1070 (Oct. 1983).
Other criticisms noted regarding the NHTSA field studies include:
"1) The field studies validated the arrest decisions of the officers, not the SFST's themselves;
2) The police officers and the degree of supervision in the field studies were not typical of typical DWI stops;
3) The studies are insufficiently documented for scientific papers;
4) The authors did not report the accuracy of arrest decisions for stops that were observed vs. those that were not, or for SFST's performed under adverse climatic conditions vs. those that were not, and
5) None of the SFST field studies have been published in peer-reviewed scientific journals."
Steve Rubenzer, Ph.D., The Psychometrics and Science of the Standardized Field Sobriety Tests,Part 1, The Champion, 48 (NACDL May 2003), Part 2, The Champion, 40 (NACDL, June 2003) (also available at www.stevenrubenzerphd.com).
Acknowledging that officers trained in conducting SFST's can have their skills degrade over time, and that modifications to the standardized procedures could result in an officer administering SFSTs according to outdated protocols, NHTSA recommends that law enforcement agencies conduct refresher training for SFST instructors and practitioners. NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., Development of a Standardized Field Sobriety Test (SFST) Training Management System, DOT-HS-809-400, (2001).
E. NON-VALIDATED SOBRIETY "TESTS"
A variety of so-called field sobriety tests are employed by police officers in the field during DUI investigations. None of these 'tests' has been statistically validated as reliable, nor have they been accepted in the medical or scientific community for the purpose of diagnosing alcohol intoxication.
The use of the term "test' for these non-validated exercises is a misnomer. Black's Law Dictionary defines a test as "Something by which to ascertain the truth respecting another thing: a criterion, a gauge, a standard, or norm". BLACK'S LAW DICTIONARY, (6 th Ed. 1990) (West Publishing Co.)
Most of these non-validated 'tests' have arisen either from word-of-mouth between officers, or through antiquated methods that seemingly have not been discarded. These include:
1. The "Alphabet Test" - the variations employed are endless, but most involve saying the complete alphabet (without singing it), or stating a portion of the alphabet, such as starting from E and ending at U, or saying the alphabet backwards. In addition to a total lack of validation that the test can accurately separate sober individuals from those who are under the influence, common problems with this test include that many persons have not stated the alphabet since childhood, many persons do not speak English as their primary language, and that the inability to say the alphabet may be a product of sheer nervousness. Additionally, there has not been any standardization in scoring this exercise for DUI purposes.
2. The "Finger-to-Nose Test" - having its origin somewhere in the 1950's, this test seeks to have a person touch the tip of his nose with the tip of his finger, while tilting his head back as far as possible and keeping his eyes closed. The officer then calls out each hand, left, right, left, right, and then right left in an attempt to confused the subject. Besides a lack of validation, this exercise does not use standardized clues or scoring in order to establish what is a "pass" or "fail".
3. The "Pick-up-Coins Test" - most commonly used by the Chicago Police Department up until the 1970's, this test required the suspect to pick up the correct coin called by the officer (i.e. penny, dime, nickel, quarter).
4. The "Rhomberg Test" - having its origin in the detection of persons under the influence of drugs, the suspect is asked to close his eyes and tell the officer when 30 seconds have passed. The theory claimed is that a person under the influence of amphetamines will think 30 seconds has passed too quickly, while a central nervous depressant will cause the person to think that 30 seconds has passed too slowly. This "test" has yet to be accepted by the medical or scientific community.
5. The "Finger-to-Thumb Test" - the suspect is asked to touch his thumb to each fingertip in correct sequence starting with the index finger, and asked to count out loud "Four, three, two, one, one, two, three, four" and so forth.
6. The "Hand-pat Test" - the suspect opens the palm of the first hand upright, and then takes the other hand and pats his palm, flipping his second hand from palm to backside and so forth, sometimes while counting.
5/12/08 - Arguing a Motion to Suppress in Overland Park Municipal Court based on State v. Schmitter and U.S. v. Gonzalez, we secured a not guilty verdict for our client.
5/1/08 -This office secured a win on a first time DUI in Johnson County District Court (magistrate division)
4/23/08 - Another Driver's License Administrative Hearing, another dismissal allowing our client - facing a 3 year license suspension - to keep his license. Today we relied on KSA 8-1002
4/21/08 - Today we successfully argued at sentencing for an advantageous sentence for a felony DUI client who had been charged and pled to a felony DUI and several associated charges. Originally facing over 5 years in prison, we argued for, and the court sentenced him to 12 months with 6 months of work release.
3/1/08 - Today this office won an Administrative Hearing against eh Kansas Department of Revenue Driver's License Bureau.
1/13/08 - Today this office represented a client who entered into a very advantageous plea in Johnson County District Court. Our client was charged with 7 crimes and, if convicted on all charges, could have led to 83 months in custody. The plea deal called for the client to plead guilty to 2 of 7 charges with a 12 month sentence and 6 months of work release.
9/27/07 - At another preliminary hearing in Johnson County District Court, Jeremiah Johnson successfully argued that the State lacked probable cause to proceed on a felony charge. This eliminated between 37 and 42 months of possible prison time facing his client.
9/16/07 - At a preliminary hearing in Johnson County District Court, Jeremiah Johnson argued against the State's case proceeding as filed, succeeding in securing a reduction in the charge. The case remains pending on the lesser charge.
8/30/07 - The Law Offices of Jeremiah Johnson, LLC was able to clear our client of a 2nd time DUI in Johnson County District Court.
6/15/07 - This office secured a dismissal in an administrative hearing for a driver's license suspension stemming from a DUI arrest. While dismissals due to an absent officer occasionally happen, this was a rare dismissal granted after evidence was presented.
5/24/07 - This office secured an acquittal in a DUI trial in Johnson County District Court in case 02TR259 after moving for a judgement of acquittal following the State's case. In doing so, the defense successfully showed that one of the required elements to convict was met only by the defendant's statements which did not meet the minimum burden for the State to make a prima facia case.
4/22/07--Once again we successfully utilized the Kansas Court of Appeals decision in State v. Ross, on a successful motion to suppress on a DUI case in Johnson County. The outcome of the motion to suppress led the state to dismiss all charges against our client.
4/9/07- Upon filing a motion to terminate based on State V. Bennett, our client was released from his probation in Olathe Municipal Court.
3/1/07- Upon successfully taking a traffic ticket to trial, our client's fine was reduced to $0.
2/9/07 Although we were retained only 6 weeks before a trial, the divorce order attorney Johnson obtained for our client was significantly better than the final settlement offer the client rejected.