Previously on the Raleigh DWI Attorney Blog I have discussed North Carolina DWI Stops and the administration of Field Sobriety Tests; specifically the Walk and Turn Test and the One-Legged Stand Test. I will now review the third test, known as the Horizontal Gaze Nystagmus Test. As a Durham DWI Attorney and a Raleigh DWI Attorney, I believe having an understanding of each of these tests is important.
This test is familiar to most as the test whereby the Driver is asked to keep their head still while they track a stimulus as it moves in front of their face. A common misconception regarding this tests is that it is designed to see whether you are able to follow the stimulus without moving your head. And while that will likely be recorded if you are not able to do so, that is not the main purpose of the tests. Below I will review how the test is administered as well as what 'clues' the Police Officer is looking for.
To begin, the officer asks the Driver to keep their head still. The Officer should look to make sure the Driver's pupils are equal and that the eyes track evenly, that is, both eyes move together. The Police Officer will then move the stimulus (normally a pen, small light, or their finger) from the center of the Driver's face towards the Driver's shoulders keeping it 10-12 inches from the Driver's face. The Police officer will do this several times. Eventually, the Police Officer will hold the stimulus out towards the outside of the Driver's Peripheral vision.
During the first part of the test, as the stimulus is moved back and forth, the Officer is looking for what is known as 'smooth pursuit.' Smooth pursuit is where the eyes track the stimulus smoothly. Someone who may be intoxicated may have trouble with this and their eyes will 'fall behind' and then 'catch up' to the stimulus.
Next, the officer will look for what is called Nystagmus prior to the eyes reaching 45 degrees from the center of their face. Nystagmus is an involuntary twitching of the eye. This twitching can be caused by many things, but can be present when someone is intoxicated. For this test, the Officer is looking for Nystagmus to appear in the eyes prior to the eye reaching the 45 degrees previously mentioned.
Lastly, the officer will hold the stimulus out to the edge of the Driver's vision. The stimulus should be held there for at least 4 seconds. The Officer is looking for 'distinct' Nystagmus when the eyes are looking to their peripherals. Though this is normally present even in sober people, since the eye grows tired of holding that position, those that are intoxicated can have a more 'distinct' Nystagmus that Officers are trained to spot.
For these three tests, the officers are looking for 6 clues, 3 per eye: 1. lack of smooth pursuit, Nystagmus prior to onset of 45 degrees, and Nystagmus at maximum deviation (looking at your peripherals).
Occasionally, the Officers will also perform a Vertical Nystagmus test where they will hold the stimulus towards the upper part of the Driver's vision. Nystagmus at this point tends to appear in those who are substantially impaired.
Tuesday, September 27, 2011
Monday, September 19, 2011
North Carolina Field Sobriety Test: Walk and Turn Test
In my previous post, I discussed North Carolina DWI Stops and the North Carolina Field Sobriety Test: known as the One-Legged Stand Test (I also added the Horizontal Gaze Nystagmus Test). I will now move on to a discussion regarding the Walk and Turn Test.
As explained before, there are three standard tests used by North Carolina Police Officers when conducting a stop for Driving While Intoxicated: The One-Legged Stand Test, The Walk and Turn Test, and the Horizontal Gaze Nystagmus. The Walk and Turn Test, like the One-Legged Stand Test, is both a balance test as well as a divided attention test. Obviously, someone who is impaired above the legal limit will have some difficulty with their balance. However, studies have shown that those that are intoxicated also have trouble dividing their attention between two tasks; specifically, maintaining their balance while concentrating on completing another task.
During the Administration of the Walk and Turn Test, the Driver is asked to stand, heel-to-toe on a either an actual line, or imaginary line, while the instructions are given. They are told not to begin the test until the instructions are finished. The Officer then explains that they want the Driver to take nine heel-to-toe steps along the line. Once they reach step nine, the front foot stays in place while the other foot takes small steps around in a half circle until the Driver is turned 180 degrees. They are then to take nine heel-to-toe steps back. During the test, the Driver is to keep their hands at their side, look at their feet, and count to nine. Normally, the Officer will demonstrate several steps as well as the turn as they give the instructions.
During the test, the Officer is looking for nine 'clues.' Clues are actions taken by the Driver which are suppose to indicate some impairment. For this test, only two clues are needed to qualify the Driver as having an impairment of .10 or more. The nine clues are as follows:
As I will mention in each of these reviews, and as is more thoroughly covered on my Raleigh Criminal Attorney website, you should never agree to participate in any Field Sobriety Tests. These tests are never 100% accurate and therefore can possibly lead to an arrest for someone not impaired. Additionally, regardless of how well you think you will do, whatever happens during the test CAN and WILL be used against you should you be arrested. There is no reason to provide the Officers and Prosecutors MORE evidence to use against you. It is your CHOICE to perform the Field Sobriety Tests. Eventually, I will blog about the Intoxilyzer and Intoximeter, which are the two different 'Breathalyzer' machines approved for used after arrest (not, this is different the the AlcoSensor, which is the machine used before arrest) and though it is your choice to provide a breath sample, refusing to do so carries with it consequences you should be aware of before you make that decision. If you want an overview of these machines and consequences immediately, then you can go here for information: North Carolina Breathalzyer.
As explained before, there are three standard tests used by North Carolina Police Officers when conducting a stop for Driving While Intoxicated: The One-Legged Stand Test, The Walk and Turn Test, and the Horizontal Gaze Nystagmus. The Walk and Turn Test, like the One-Legged Stand Test, is both a balance test as well as a divided attention test. Obviously, someone who is impaired above the legal limit will have some difficulty with their balance. However, studies have shown that those that are intoxicated also have trouble dividing their attention between two tasks; specifically, maintaining their balance while concentrating on completing another task.
During the Administration of the Walk and Turn Test, the Driver is asked to stand, heel-to-toe on a either an actual line, or imaginary line, while the instructions are given. They are told not to begin the test until the instructions are finished. The Officer then explains that they want the Driver to take nine heel-to-toe steps along the line. Once they reach step nine, the front foot stays in place while the other foot takes small steps around in a half circle until the Driver is turned 180 degrees. They are then to take nine heel-to-toe steps back. During the test, the Driver is to keep their hands at their side, look at their feet, and count to nine. Normally, the Officer will demonstrate several steps as well as the turn as they give the instructions.
During the test, the Officer is looking for nine 'clues.' Clues are actions taken by the Driver which are suppose to indicate some impairment. For this test, only two clues are needed to qualify the Driver as having an impairment of .10 or more. The nine clues are as follows:
- Cannot keep balance while listening to the instructions.
- Starts before the instructions are finished.
- Stops while walking to steady self (does not include merely walking slowly).
- Does not touch heel-to-toe (only if the gap is more than 1/2 inch).
- Steps off the line.
- Use arms to balance (only if the Driver raises one or both hands more than 6 inches from their body).
- Loses balance while turning.
- Incorrect number of steps.
- Cannot do the test (this will result in 9 clues being recorded against the Driver).
As I will mention in each of these reviews, and as is more thoroughly covered on my Raleigh Criminal Attorney website, you should never agree to participate in any Field Sobriety Tests. These tests are never 100% accurate and therefore can possibly lead to an arrest for someone not impaired. Additionally, regardless of how well you think you will do, whatever happens during the test CAN and WILL be used against you should you be arrested. There is no reason to provide the Officers and Prosecutors MORE evidence to use against you. It is your CHOICE to perform the Field Sobriety Tests. Eventually, I will blog about the Intoxilyzer and Intoximeter, which are the two different 'Breathalyzer' machines approved for used after arrest (not, this is different the the AlcoSensor, which is the machine used before arrest) and though it is your choice to provide a breath sample, refusing to do so carries with it consequences you should be aware of before you make that decision. If you want an overview of these machines and consequences immediately, then you can go here for information: North Carolina Breathalzyer.
Friday, September 16, 2011
North Carolina Field Sobriety Test: One-Legged Stand
So, this will be an overview of North Carolina DWI Field Sobriety Tests. The three main Field Sobriety Tests used by police officers are the One-Legged Stand, the Walk-and-Turn, and the Horizontal Gaze Nystagmus test. Today's Raleigh DWI Attorney Blog will deal with the One-Legged Stand. As a Raleigh DWI Attorney or DWI Attorney Raleigh, I have had ample opportunity to explore each of these tests.
Field Sobriety Tests are those tests requested (note: NOT required) of people the Officer feel may be Driving While Impaired. They are performed outside of the vehicle, normally on the side of the road or the nearest safe location. The 'Standardized Field Sobriety Test' (as it is officially known) was created by the National Highway Traffic Safety Administration. The purpose of the tests is to ascertain whether the person being tested is "appreciable impaired" such that they have violated the North Carolina DWI law.
First to be evaluated is the One-Legged Stand. In this test, the Driver is requested to first stand with their feet shoulder-width apart as the instructions are given. The Officer will explain the Driver is to stand on one foot, whichever the Driver chooses, while elevating the other foot 6-8 inches off the ground. The elevated foot should be pointed straight up. The Driver is to keep their hands at their side and stare at their foot while they count to 30 to themselves. Once 30 has been reached, the Driver can put their foot down and the test is over.
During the test, the officer is looking for several 'clues.' 'Clues' are what is suppose to indicate whether the driver is appreciable impaired. Obviously, the more 'clues' the Officer observes, the more likely the driver is impaired. The clues for the One-Legged Stand are putting the elevated foot down before 30, swaying, using hands for balance, and hopping to maintain balance.
As I will mention in each of these reviews, and as is more thoroughly covered on my Raleigh Criminal Attorney website, you should never agree to participate in any Field Sobriety Tests. These tests are never 100% accurate and therefore can possibly lead to an arrest for someone not impaired. Additionally, regardless of how well you think you will do, whatever happens during the test CAN and WILL be used against you should you be arrested. There is no reason to provide the Officers and Prosecutors MORE evidence to use against you. It is your CHOICE to perform the Field Sobriety Tests. Eventually, I will blog about the Intoxilyzer and Intoximeter, which are the two different 'Breathalyzer' machines approved for used after arrest (not, this is different the the AlcoSensor, which is the machine used before arrest) and though it is your choice to provide a breath sample, refusing to do so carries with it consequences you should be aware of before you make that decision. If you want an overview of these machines and consequences immediately, then you can go here for information: North Carolina Breathalzyer.
Field Sobriety Tests are those tests requested (note: NOT required) of people the Officer feel may be Driving While Impaired. They are performed outside of the vehicle, normally on the side of the road or the nearest safe location. The 'Standardized Field Sobriety Test' (as it is officially known) was created by the National Highway Traffic Safety Administration. The purpose of the tests is to ascertain whether the person being tested is "appreciable impaired" such that they have violated the North Carolina DWI law.
First to be evaluated is the One-Legged Stand. In this test, the Driver is requested to first stand with their feet shoulder-width apart as the instructions are given. The Officer will explain the Driver is to stand on one foot, whichever the Driver chooses, while elevating the other foot 6-8 inches off the ground. The elevated foot should be pointed straight up. The Driver is to keep their hands at their side and stare at their foot while they count to 30 to themselves. Once 30 has been reached, the Driver can put their foot down and the test is over.
During the test, the officer is looking for several 'clues.' 'Clues' are what is suppose to indicate whether the driver is appreciable impaired. Obviously, the more 'clues' the Officer observes, the more likely the driver is impaired. The clues for the One-Legged Stand are putting the elevated foot down before 30, swaying, using hands for balance, and hopping to maintain balance.
As I will mention in each of these reviews, and as is more thoroughly covered on my Raleigh Criminal Attorney website, you should never agree to participate in any Field Sobriety Tests. These tests are never 100% accurate and therefore can possibly lead to an arrest for someone not impaired. Additionally, regardless of how well you think you will do, whatever happens during the test CAN and WILL be used against you should you be arrested. There is no reason to provide the Officers and Prosecutors MORE evidence to use against you. It is your CHOICE to perform the Field Sobriety Tests. Eventually, I will blog about the Intoxilyzer and Intoximeter, which are the two different 'Breathalyzer' machines approved for used after arrest (not, this is different the the AlcoSensor, which is the machine used before arrest) and though it is your choice to provide a breath sample, refusing to do so carries with it consequences you should be aware of before you make that decision. If you want an overview of these machines and consequences immediately, then you can go here for information: North Carolina Breathalzyer.
Tuesday, September 13, 2011
Raleigh DWI Attorney Blog | "Run and Your Done" law explained
A new North Carolina Traffic Law, the “Run and You're Done” bill, has been approved and is ready to be fought out in court by Raleigh Traffic Attorneys. This bill was signed by Governor Perdue June 23, 2011 (the same time as "Laura's Law"). This law, which will go into effect December 1, 2011, is meant to deter Felony Speeding to Elude. The "Run and Your Done" law allows North Carolina police to impound the vehicle of a Defendant convicted of felony speeding to elude. The Defendant's car or truck will be auctioned off with the proceeds to be given to North Carolina School Systems.
Carrying a similar catchy name as "Booze it and Lose it" and "Click it or Ticket" the "Run or You're Done" law is meant to serve as notice to the general public. The idea being that the name, being catch, will stick in the mind of anyone contemplating running from the police in a vehicle.
In 2010 in North Carolina alone, over 2100 people were issued citations for Felony Speeding to Elude. During that time, many people's lives were put at risk, and some deaths occurred. Recently, a Defendant was found guilty of 2nd Degree Murder for the death of a police officer who crashed is cruiser while responding to a chase involving the Defendant. In addition, many of these cases of Felony Speeding to Elude of involved Defendants exceeding 100 miles per hour. In fact, just this June a Defendant was cited for going 160 miles per hour while trying to elude North Carolina State Highway Troopers on Highway N.C. 24
Luckily for some, there is an exception in the new law which protects innocent third parties. If the vehicle the Defendant is driving during the Felony Speeding to Elude belongs to someone else, the owner can regain possession of their vehicle. But, should that same owner have their vehicle used in a subsequent Felony Speeding to Elude by the Defendant, the vehicle will be taken and sold at auction.
Carrying a similar catchy name as "Booze it and Lose it" and "Click it or Ticket" the "Run or You're Done" law is meant to serve as notice to the general public. The idea being that the name, being catch, will stick in the mind of anyone contemplating running from the police in a vehicle.
In 2010 in North Carolina alone, over 2100 people were issued citations for Felony Speeding to Elude. During that time, many people's lives were put at risk, and some deaths occurred. Recently, a Defendant was found guilty of 2nd Degree Murder for the death of a police officer who crashed is cruiser while responding to a chase involving the Defendant. In addition, many of these cases of Felony Speeding to Elude of involved Defendants exceeding 100 miles per hour. In fact, just this June a Defendant was cited for going 160 miles per hour while trying to elude North Carolina State Highway Troopers on Highway N.C. 24
Luckily for some, there is an exception in the new law which protects innocent third parties. If the vehicle the Defendant is driving during the Felony Speeding to Elude belongs to someone else, the owner can regain possession of their vehicle. But, should that same owner have their vehicle used in a subsequent Felony Speeding to Elude by the Defendant, the vehicle will be taken and sold at auction.
Saturday, September 3, 2011
Raleigh DWI Attorney Blog | NY Times Stop-and-Frisk Article
So, not exactly dealing with what the Raleigh DWI Attorney blog normally deals with, this Raleigh DWI Attorney blog entry is dealing with a police stop called the "Stop-and-Frisk." The NY Times Article that peaked my interest can be found here.
The Stop-and-Frisk is a means by which an officer can stop an individual based on "Reasonable Suspension" of some kind of 'criminal activity.' Reasonable Suspension is a very low standard, and though it is commonly used for other stops, particularly a traffic stop, this particular issue is a little different. In a common traffic stop, the officer has reasonable suspicion that a crime has, or is about to be, committed. They can use the same explanation for the Stop-and-Frisk, the big difference is, in a traffic stop, the officer an identify what crime it is they suspect has, or is about to be, committed.
If an officer catches you speeding with a radar gun, they know you have violated a traffic law dealing with exceeding the speed limit. If they run your plates and learn your registration is out of date, they can stop you for driving a vehicle that is not properly registered. For a Stop-and-Frisk, the officer doesn't know specifically what crime is involved, just that the actions of the individuals may indicate some criminal activity.
So, let's back up and explain specifically what a Stop-and-Frisk entails. When an Officer believes they have 'reasonable suspicion' that criminal activity is occurring, they can stop the individual to investigate. Now, the stop, like all stops, is not to last any longer than is necessary to ascertain whether a crime is, in fact, being committed, has been committed, or is about to be committed. Now, I can't say I'm particularly happy with this standard for an officer to interrupt a citizen who may very well be involved in perfectly legal activity. The real big issue comes in with the 'Frisk.' You see, during the stop, if an Officer has some reason to believe the individual is armed, they are permitted to frisk them. During this frisk, the Officer can feel the outer garments of the individual(s). If, during the frisk, they feel something that could be readily identified as contraband, they can seize it, and where necessary arrest the individual.
Now, you may be saying to yourself, "an Officer has a right to ensure their safety in the course of their duty." And, in most instances, I will agree with you. The problem with the Stop-and-Frisk is, the standard is so low for them to justify stopping an individual, they can readily come up with some 'action' on your part which constitutes possible "criminal activity." In fact, the mere fact that you turn and walk away when you spot an officer, or a quick hand gesture (which, supposedly, could indicate the tossing of contraband) is enough.
So, in these instances, the officer has not seen a crime be committed, or a potential crime be committed, just some action which they deem suspicion, in order to justify the stop. Once stopped, they can justify the 'frisk' with any number of reasons. what I am saying is, even though there is a supposed 'standard' that must be met before this Stop-and-Frisk can occur, it is so low, it is paramount to a random Stop-and-Search.
For a history lesson on this topic, it derives from a case called "Terry v. Ohio." It's an interesting case if you have the time to read it. In the mean time, back to the grind.
The Stop-and-Frisk is a means by which an officer can stop an individual based on "Reasonable Suspension" of some kind of 'criminal activity.' Reasonable Suspension is a very low standard, and though it is commonly used for other stops, particularly a traffic stop, this particular issue is a little different. In a common traffic stop, the officer has reasonable suspicion that a crime has, or is about to be, committed. They can use the same explanation for the Stop-and-Frisk, the big difference is, in a traffic stop, the officer an identify what crime it is they suspect has, or is about to be, committed.
If an officer catches you speeding with a radar gun, they know you have violated a traffic law dealing with exceeding the speed limit. If they run your plates and learn your registration is out of date, they can stop you for driving a vehicle that is not properly registered. For a Stop-and-Frisk, the officer doesn't know specifically what crime is involved, just that the actions of the individuals may indicate some criminal activity.
So, let's back up and explain specifically what a Stop-and-Frisk entails. When an Officer believes they have 'reasonable suspicion' that criminal activity is occurring, they can stop the individual to investigate. Now, the stop, like all stops, is not to last any longer than is necessary to ascertain whether a crime is, in fact, being committed, has been committed, or is about to be committed. Now, I can't say I'm particularly happy with this standard for an officer to interrupt a citizen who may very well be involved in perfectly legal activity. The real big issue comes in with the 'Frisk.' You see, during the stop, if an Officer has some reason to believe the individual is armed, they are permitted to frisk them. During this frisk, the Officer can feel the outer garments of the individual(s). If, during the frisk, they feel something that could be readily identified as contraband, they can seize it, and where necessary arrest the individual.
Now, you may be saying to yourself, "an Officer has a right to ensure their safety in the course of their duty." And, in most instances, I will agree with you. The problem with the Stop-and-Frisk is, the standard is so low for them to justify stopping an individual, they can readily come up with some 'action' on your part which constitutes possible "criminal activity." In fact, the mere fact that you turn and walk away when you spot an officer, or a quick hand gesture (which, supposedly, could indicate the tossing of contraband) is enough.
So, in these instances, the officer has not seen a crime be committed, or a potential crime be committed, just some action which they deem suspicion, in order to justify the stop. Once stopped, they can justify the 'frisk' with any number of reasons. what I am saying is, even though there is a supposed 'standard' that must be met before this Stop-and-Frisk can occur, it is so low, it is paramount to a random Stop-and-Search.
For a history lesson on this topic, it derives from a case called "Terry v. Ohio." It's an interesting case if you have the time to read it. In the mean time, back to the grind.
Friday, September 2, 2011
Raleigh DWI Attorney Blog | Intros
So, in posting my first blog post, I jumped the gun and learned that an introductory blog is normally appropriate. I am an attorney in North Carolina who handles Raleigh Criminal Defense and Durham Criminal Defense. In addition to Criminal Defense, I also am a Raleigh Traffic Attorney, with a special focus on handling Raleigh DWI charges and Durham DWI charges. Since this is a focus of my practice, I thought it practical the title of the blog be Raleigh DWI attorney blog, even though my area of practice is slightly more broad.
This blog is to serve as a way to keep my clients, as well as potential clients and the general public on the happenings in the world of DWI; specifically North Carolina DWI information. Hopefully, if you are reading this, you will find the information that will follow as useful.
Beyond my practice, I have several interests that I try to maintain. First and foremost is my family, I am married with no children (yet). We have two wonderful pups we rescued, Mungo and Molly; both mutts. I enjoy automotive restoration and fabrication, almost any outdoor activities, and when time permits, cheering on my Carolina Hurricanes. Recently, I have even taken up Adult amateur ice hockey, which I am really enjoying.
That is all for now, please subscribe, or just check back often as I intend to keep this blog updated constantly.
Cheers!
This blog is to serve as a way to keep my clients, as well as potential clients and the general public on the happenings in the world of DWI; specifically North Carolina DWI information. Hopefully, if you are reading this, you will find the information that will follow as useful.
Beyond my practice, I have several interests that I try to maintain. First and foremost is my family, I am married with no children (yet). We have two wonderful pups we rescued, Mungo and Molly; both mutts. I enjoy automotive restoration and fabrication, almost any outdoor activities, and when time permits, cheering on my Carolina Hurricanes. Recently, I have even taken up Adult amateur ice hockey, which I am really enjoying.
That is all for now, please subscribe, or just check back often as I intend to keep this blog updated constantly.
Cheers!
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