There are three phases of an OWI arrest, so why does the prosecution want to spend the most time on phase three – the standardized field sobriety tests? I’ll tell you why, it’s because the first two phases deal with common sense judgment and that is exactly what they don’t want the jury using!
Any criminal OWI attorney who is worth her (or his) suit will carefully scrutinize the first two phases before they even touch the sobriety tests. They will do this because most people like to know what happened in the order it actually happened. If everyone automatically jumps to some sobriety tests done on the side of the road a big chunk of the driver’s behavior is simply left out. And this isn’t fair.
It’s not fair to the driver being accused of driving impaired and it’s not fair to a juror who is being asked to make a serious decision based on the totality of the circumstances, but then is only given part of the story.
The three phases of an OWI arrest include: (1) the vehicle in motion, (2) personal contact with the driver, and (3) the standardized field sobriety tests.
Phase One Of An OWI Arrest (The Vehicle In Motion)
Officer are trained to first observe the vehicle in motion. They look for vehicle maneuvers or human behavior that may be associated with impairment. What does impairment look like to an officer? Good question. According to the National Highway Traffic Safety Administration (NHTSA) it can look like a lot of things. Here are just a few examples of suspected “impaired” driving that is likely to get you pulled over:
- Weaving in your lane
- Making a wide radius turn
- Varying speed
The list goes on and on, but one thing is clear : There are a lot of normal behaviors that will give the officer reasonable suspicion to pull you over on the suspicion that you were driving impaired.
A good attorney will show the jury how this “abnormal” behavior is actually quite normal.
Phase Two Of An OWI Arrest (Personal Contact)
Once the officer has performed the traffic stop he will approach the driver. Officers are trained to notice signs of impairment when they have contact with you. Again, NHTSA has given a list of behaviors that it has categorized as indicators of impairment. The list includes:
- Bloodshot eyes: A good attorney will point out to the jury that there are half a dozen reasons a person could have bloodshot eyes which has nothing to do with impairment. How about dry eyes, contact lenses wearers, mental fatigue or allergies just to name a few?
- Soiled Clothing: If you are a painter or landscaper by profession you better wash your clothes before driving home. Also, be careful eating in the car because one little grease stain and you are looking impaired to an observing officer.
- Fumbling Fingers: An officer, in the name of officer safety will approach your car sideways, hand on his gun and with an extra bright flash light pointed in your eyes. You on the other hand better not be nervous when you see him approaching you in the dead of night on the side of the busy highway because your nervousness will be construed as impairment!
- Bruises, Bumps, Scratches: There are many reasons a person could have a bruise, bump or scratch that it’s pretty incredible that it can be viewed as impairment. How about playing a sport, having a medical condition or having a ferocious kitten?
A good OWI attorney is able to point out some of the ridiculous things that an officer says are indicators of impairment. I’m certain that there is more than one juror sitting in the box that has driven while wearing a bump or bruise on their body or with soiled clothing. I’m also certain there is at least one juror who has had bloodshot eyes or who has been nervous and fumbled their fingers while trying to grab something while being completely sober.
Phase Three (Standardized Field Sobriety Tests)
And here we are. The prosecutor’s favorite area. The prosecutor will emphatically point out to the jury how these tests are scientific indicators of impairment and that if an accused has failed them it means they were impaired.
The three tests that are given on a regular basis include: (1) The Horizontal Gaze Nystagmus (HGN), (2) The Walk and Turn, and (3) The One Leg Stand.
Horizontal Gaze Nystagmus Nystagmus simply means involuntary jerking of the eyes. The officer will look to see if a person’s eyes are jerking while just looking straight ahead and following an object with their eyes horizontally, and just prior to the eyes reaching a 45 degree angle.
While the test itself may be scientific in nature, the reason a person’s eyes may involuntarily jerk does not always indicate impairment. For example, disruption of a person’s balance can cause the eyes to jerk. Also, anti-depressant medication or having a vitamin deficiency (specifically B12 or thiamine) can cause a person’s eyes to jerk as well. Does this mean the person is intoxicated? No.
When administering the HGN test, the officer is also looking for something called lack of smooth pursuit. What this means is that while your eyes are tracking an object in a horizontal line, the officer is making sure that your eyes are doing it in a smooth manner. Medication, being off balance, moving your head while doing the test and tumors or past concussions can cause the eyes to jerk during this test.
It’s important for a drunk driving attorney to make sure the officer is performing these tests correctly. Sometimes you will see an officer holding the stimulus to be followed to high above eye level. This causes the eyes to move in an arch, which is not horizontally!
Officers are also looking for involuntary jerking to begin before the pupils reach a 45 degree angle. How do the officers measure a 45 degree angle? Good question. An attorney must have the officer specifically explain it to the jury. Many times the answer is that they guess. A guess isn’t scientific so how can the test then be? If the officer holds an object 12 inches in front of your face then he is going to have to hold the object 12 inches to the side of your face to make a 45 degree angle. A person’s shoulders (where officers always tend to go) does not always make a 45 degree angle.
It’s important for attorneys to watch for this.
The Walk and Turn and One Legged Stand are tests designed to divide your attention. These tests were established by NHTSA so that when properly administered are supposed to indicate impairment if failed. Both of these tests have an instruction phase and then a performance phase. The catch here is this. Before the officer begins giving you the instructions he has you get in position to take the test. For the walk and turn that means you stand on an invisible line with your right foot in front of your left (heel to toe) and your arms down to your sides. So, before you even begin the test you are standing for about a minute and a half in an uncomfortable off balance position.
Your attorney should point out to the jury that the officer is taking away half of a person’s balance but then scoring him as if he had 100%. How often do you normally walk heel to toe with your arms flat against your sides? Probably never.
As far as the one legged stand goes, it’s just plain unnatural. We are humans not flamingos. Standing on one leg for a period of time can be difficult for a dozen reasons that have nothing to do with being impaired. Muscle strength, a person’s age, a person’s medical condition and maybe just a person’s natural clumsy trait should all factor into this. The prosecutor isn’t going to bring it up. It’s up to your attorney to make sure that these things are brought to the juror’s attention.
If your attorney can show the jury just how unnatural these tests are and how some “abnormal” behavior is actually quite normal you have won half the battle. All the jury needs to have is a reasonable doubt about your impairment and creating reasonable doubt shouldn’t be that difficult.
It’s all about appealing to the juror’s common sense and once they put themselves in your shoes and start thinking about themselves being nervous or being on medication or driving home from work, it won’t be too difficult for their common sense to start taking over. Hiring an experienced trial lawyer is your smartest move.
If you If you have been charged with a drinking and driving offense (OWI) in the Oakland, Wayne, or Macomb counties or any area in Southeast Michigan and want the best OWI defense attorneys, call The Law Office of Barton Morris today.
Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 20 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.
Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia.
Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013, 2014, 2019 and 2020 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2020 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”