Certainly there are great cops out there who do wonderful things. We’ve all heard stories about cops saving people from perilous situations. Occasionally they stop violent crime while it is in progress. I’m not suggesting that cops are inherently bad people. However, you must realize that their job is at odds with your interests. They are tasked with investigating crimes and gathering sufficient evidence to put you in a jail cell.

If an officer tells you that he will “help you out” if you just tell the truth, he isn’t doing that because he wants to help you out, he’s doing it to establish a rapport and to get you to implicate yourself. I recently listened to an audio recording of an interrogation where the officer promised that the suspect wouldn’t go to jail tonight if he just told the truth. The officer didn’t lie. The suspect didn’t go to jail that night. However, a few days later an arrest warrant was authorized based on the statements that the suspect made during the interview. Prior to the suspect making the statements, the police had virtually no evidence that the suspect had committed the crime in question. After the interrogation, the suspect had virtually hung himself.

Cops are trained in interrogation and investigation. The deck is stacked in their favor. I don’t care how smart you are, you’re not going to win at that game.  Do yourself a favor and politely refuse to answer any questions until you’ve had an opportunity to speak with a lawyer.

Joshua Blanchard holds a Juris Doctor from the Thomas M. Cooley Law School and is licensed to practice throughout the state of Michigan and in Federal Court. He is a member of the Criminal Defense Attorneys of Michigan and the National Association of Criminal Defense Lawyers. He engages in ongoing professional development and is a graduate of the CDAM Trial College. He provides an aggressive defense to people charged with serious crimes. For more information, or to confidentially discuss your situation, please call him at 877-MICH-DUI.

According to the National Highway Traffic Safety Administration (NHTSA), the One Leg Stand (OLS) is another field sobriety test which may be employed by officers to assist in determining whether a subject is intoxicated. (NHTSA DWI Detection Manual at VII-6).

According to NHTSA, when properly administered, this test consists of two phases. The first phase is the “Instruction Stage”. You probably didn’t realize it, but the officer was (or should have been) paying attention to your behavior during the instructions. He should have asked you to stand with your feet together and with your arms at your side while he explained the test to you. He never warned you, but he was already looking for evidence to use against you. If you failed to stand with your legs together or arms at your side, he’s going to count that against you.

The next phase is the “Balance and Counting Stage”. During this stage, the officer instructs you to raise either foot (your choice) approximately six inches off the ground, keeping the raised foot parallel to the ground. He should have told you to look at your foot and count out loud until instructed to stop.

Many officers don’t understand the proper way to administer this test. Many will tell you to count out loud until you reach thirty. However, the reliability is severely compromised if the subject isn’t tested for an exact 30 second interval. If you counted slowly and actually stood on one leg longer than 30 seconds, the validity of the test may be compromised.

During the second stage of the test, the officer is looking for four clues: 1) sways while balancing; 2) uses arms to balance; 3) hops; 4) puts foot down. Also the officer will conclude that you were unable to complete the test if you 1) put your foot down three or more times during the 30 second period or 2) cannot do the test. If the officer finds the presence of two or more of the clues or if you’re unable to complete the test, original research shows that there is a 65% chance that your blood alcohol content is over a .10. (NHTSA Manual at VII-7).

Joshua Blanchard holds a Juris Doctor from the Thomas M. Cooley Law School and is licensed to practice throughout the state of Michigan and in Federal Court. He is a member of the Criminal Defense Attorneys of Michigan and the National Association of Criminal Defense Lawyers. He engages in ongoing professional development and is a graduate of the CDAM Trial College. He provides an aggressive defense to people charged with serious crimes. For more information, or to confidentially discuss your situation, please call him at 877-MICH-DUI or e-mail josh@joshuablanchard.com.

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This information may not be appropriate for your particular situation, including but not limited to drivers licensed in other states, drivers under the age of 21, drivers with a commercial driver license, drivers carrying a concealed weapon pursuant to a valid concealed pistol license, drivers on probation or parole, drivers who have been involved in a serious accident, or others. To understand how the law impacts your unique situation, you should always consult with a qualified attorney before taking any action. This is offered for informational purposes only and does not constitute legal advice or an offer to enter into an attorney-client relationship.

For decades, officers have been administering varying forms of FSTs. These have ranged from reciting the alphabet to picking up the officer’s loose change that he threw on the ground. Beginning in the 1970s, NHTSA sponsored a series of pseudo-scientific research studies on FSTs through a contract with the Southern California Research Institute.

The results of these studies found that the three most reliable FSTs were 1) Horizontal Gaze Nystagmus (HGN), 2) Walk-and-Turn (WAT), and 3) One Leg Stand (OLS). The initial studies found that the combination of these three tests, if properly administered, could predict a blood alcohol content above .10 in approximately 80% of the cases. That means that the police would reach the wrong conclusion with 20 out of every 100 people tested.

In the mid-1990s, there were a series of validation studies completed in varying states. In the San Diego validation study, completed in 1998, the question that was being addressed was whether these three FSTs accurately identified blood alcohol contents between .08 and .10.  Interestingly, the study concluded that “correct arrest decisions” were made in 91% of the cases.

Of course, this rasises two interesting questions. First, what is the difference between a “correct arrest decision” and being over .08. I suppose that a “correct arrest decision” could be someone who was not over .08 at the time of driving, but whose blood alcohol rose after the stop and was over the limit at the time of administration. It could also be someone who doesn’t challenge the results. Or maybe even someone who was under .08, but could be charged with another crime such as impaired driving.

Secondly, what about the 9 out of 100 people who weren’t over .08? I guess NHTSA would have you believe that wrongly accusing 9 out of 100 people is ok.

Horizontal Gaze Nystagmus

Nystagmus is defined as an involuntary jerking of the eye. There are a myriad of factors that can cause someone to exhibit nystagmus such as rotational nystagmus (resulting from spinning in circle), caloric nystagmus (resulting from varying temperatures in each ear), positional alcohol nystagmus (resulting from alcohol altering the blood’s specific gravity in the blood and vestibular systems), optokinetic nystagmus (watching sharply contrasting images; strobe lights), physiological nystagmus (process that keeps the eyes from tiring), and other pathological disorders.

The HGN test is the one commonly known as the “eye test”. To perform this test, the cop will stand in front of you and ask you to look at his finger, pen, or flashlight. He’ll then pass his finger back and forth in front of your face. Each time he moves his finger from side to side, he’s attempting to observe one of the clues below.

Clue #1

The first clue that officers look for is lack of smooth pursuit. Essentially, they move their finger from side to side and ask you to follow it with your eyes only. They’re looking to see whether your eyes are able to follow it smoothly or if they make a jerking motion as they follow it. According to the NHTSA manual “[t]he eyes of an unimpaired person will follow smoothly, i.e., a marble rolling across a smooth pane of glass . . . .”

Clue #2

The second clue that a cop is looking for is nystagmus at maximum deviation. When the officer moves his finger to the side he’ll hold your gaze out at the corner of your eye and wait for approximately 4 seconds. According to the NHTSA manual, unimpaired people will exhibit some nystagmus at maximum deviation, but impaired people will have distinct and sustained nystagmus when held for more than 4 seconds. Essentially, the officer is trying to determine if your eyes are bouncing around more than they normally do — as if he knows what your eyes normally look like.

Clue #3

Finally, the officer is going to attempt to determine if you exhibit nystagmus prior to your eyes being at a 45 degree angle.  According to NHTSA, the onset of nystagmus prior to 45 degrees is an indication that your BAC is over .08. The officer doesn’t carry a protractor with him . . . he guesses at 45 degrees. If he’s off by 10 degrees — which could equal just a few inches — the results of his test may be completely unreliable.

Validity of the test

For this test to have any scientific validity, the officer must perform the test in strict conformance with NHTSA guidelines. This very rarely happens. If you’ve recently been charged with OWI/DUI and have had this test or another FST administered, you should contact me or another qualified DUI attorney immediately.

Joshua Blanchard holds a Juris Doctor from the Thomas M. Cooley Law School and is licensed to practice throughout the state of Michigan and in Federal Court. He provides an aggressive defense to people charged with serious crimes. For more information, or to confidentially discuss your situation, please call him at 877-MICH-DUI or e-mail josh@joshuablanchard.com.

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This information may not be appropriate for your particular situation, including but not limited to drivers licensed in other states, drivers under the age of 21, drivers with a commercial driver license, drivers carrying a concealed weapon pursuant to a valid concealed pistol license, drivers on probation or parole, drivers who have been involved in a serious accident, or others. To understand how the law impacts your unique situation, you should always consult with a qualified attorney before taking any action. This is offered for informational purposes only and does not constitute legal advice or an offer to enter into an attorney-client relationship.

What is a preliminary breath test (PBT)?

A PBT is a small handheld device that attempts to measure blood alcohol content by measuring the alcohol contained in your breath as you exhale into the PBT. To do this, most PBTs make use of a fuel cell that oxidizes the alcohol in your breath as it passes over the fuel cell. This oxidation process alters the electrical current flowing through the device and it attempts to calculate your blood alcohol content based on this change in electrical current. Generally speaking, the results of a PBT are not admissible to prove the amount of alcohol in one’s body in a trial for driving under the influence.

Among many other problems, PBTs can produce falsely high results when other substances are exhaled into the PBT, adverse weather conditions exist, or the police officer isn’t properly trained in its use.

What is not a PBT?

Generally speaking, a PBT is a device that is small, portable, and most often administered on the road-side. This is in contrast to an evidential breath test — which in Michigan is a Datamaster test. The Datamaster will most often look like this:

Datamaster Evidential Breath Tester

However, the company the produces the Datamaster has finally come out with a newer model that looks like this:

New Datamaster

Should I take a PBT on request of a peace officer?

Probably not. In Michigan, most people would be well advised to refuse a police officer’s request to perform a PBT.

MCL 257.625a(2)(d) provides that ” a person who refuses to submit to a preliminary chemical breath analysis upon a lawful request by a peace officer is responsible for a civil infraction.” Due to additional penalties for commercial driver license (CDL) holders, refusing a PBT may not be appropriate for a CDL holder.

The final analysis:

For the ordinary driver, refusing a PBT will result in a civil infraction (a non-criminal ticket — like a speeding ticket) and a fine.  Submitting to the PBT may give the officer the probable cause that he needs to arrest you.

Joshua Blanchard is an attorney licensed in the state of Michigan. He provides an aggressive criminal defense to those who need it most. For more information, or to confidentially discuss your situation, please call him at 877-MICH-DUI or e-mail josh@joshuablanchard.com.

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This information may not be appropriate for your particular situation, including but not limited to drivers licensed in other states, drivers under the age of 21, drivers with a commercial driver license, drivers carrying a concealed weapon pursuant to a valid conceal pistol license, drivers on probation or parole, drivers who have been involved in a serious accident, or others. To understand how the law impacts your unique situation, you should always consult with a qualified attorney before taking any action.