Trace amounts of ethanol have been detected in soft drinks and other flavored beverages. At a drug and alcohol treatment center in Norway, it had appeared that residents were gaining access to ethanol. Because residents were routinely seen with cans of Sprite, suspicious staff tested a resident’s can by enzyme assay and found it to contain ethanol. An unopened can was tested, and it also contained ethanol. Following the initial observation of ethanol in Sprite, a preliminary study revealed concentrations in commercial flavored sparkling water as high as 0.221% w/v.

Pursuant to this observation, researchers purchased various soft drinks and flavored beverages from several markets in the Baltimore, MD area. The ethanol content of these beverages was determined in triplicate with automated headspace gas chromatography (Tekmar equilibrium headspace model 7050 interfaced with a Perkin-Elmer gas chromatograph model 8500). Prior to headspace analysis, a 10-mL aliquot of each beverage was transferred to a 22-mL headspace vial and sonicated to facilitate the release of carbon dioxide. Soon afterward, 0.5 mL of each beverage was diluted with 4.5 mL of a 0.02% v/v solution of n-propanol containing 10% w/w sodium chloride. The quantitative limits of the ethanol assay were 0.002 to 0.255% w/v, and the limit of detection was 0.001% w/v.

The mean ethanol concentrations of the beverages tested are listed in Table I. The concentration range was 0.000 to 0.096% w/v. Although the effect of sonication on the release of ethanol was not evaluated, preliminary results by enzyme assay without sonication were comparable to results obtained by gas chromatographic assay with sonication.

Although researchers were initially surprised that many beverages contain ethanol, a review of the scientific literature revealed that ethanol is commonly used in the formulation of beverages as a carrier for volatile and natural flavoring materials. Artificial flavoring may also contain ethanol. In situ fermentation is an unlikely source of ethanol because beverages and their ingredients are highly purified and sterilized (1–2). The concentration of ethanol in the beverages tested was very low, less than 1/40th the concentration commonly present in beer (3–5%). According to the U.S. Food and Drug Administration, beverages containing less than 0.5% ethanol are considered nonalcoholic. If the ethanol content of a beverage is greater than 0.5%, it is considered an alcoholic beverage and must bear the government warning statement. In addition, if ethanol is added as an ingredient, it must be listed in the ingredient declaration. Finally, if the ethanol is present in insignificant quantities as an incidental additive, it may be exempt from labeling requirements (3).

Obviously, if consumed, the alcoholic content of an ethanol-positive beverage would not be physiologically significant. The amount of ethanol consumed from one can would be equivalent to about one sip of beer, and the corresponding peak blood ethanol concentration attained would not exceed 0.001% w/v. In addition, operators of breath-alcohol testing devices must be cautioned regarding the innocent consumption of “nonalcoholic” beverages, such as flavored water, immediately prior to a breath test. Finally, since intentional substitution of urine specimens is often not detected by the collection site and/or the laboratory, it is possible that substitution with a beverage containing ethanol may result in a positive ethanol result.

References

Journal of Analytical Toxicology, Volume 20, Number 5, September 1996, pp. 332-333:
Unsuspected Ethanol Ingestion Through Soft Drinks and Flavored Beverages
B.A. Goldberger, E.J. Cone, and L. Kadehjian
Encyclopaedia of Food Science, Food Technology and Nutrition. R. Macrae, R.K. Robinson, and M.J. Sadler, Eds., Academic Press Inc., London, U.K., 1993, pp 4189–4206.
Foods & Nutrition Encyclopedia. A.H. Ensminger, M.E. Ensminger, J.E. Konlande, and J.R.K. Robson, Eds., CRC Press, Boca Raton, FL, 1994, pp 2002–2005.
Martin J. Stutsman, U.S. Food and Drug Administration, personal communication, 1996.

PORTLAND -- 'Tis the season for holiday celebrations and drunken driving saturation patrols. But there are questions about how fair Oregon's law is when it comes to drunken driving arrests.

If you blow a .08 or greater in Oregon, you'll likely be charged with driving under the influence. But defense attorney John Henry Hingson III questions whether that breath test you receive is accurate.

"When you are charged with DUI in Oregon you can be guilty of DUI but sober," Hingson said.

In Oregon, drivers undergoing breath tests are only asked to give one breath sample. California, Idaho and Washington all require two.

"It's another way of showing we go a step beyond to protect the rights of the accused," Washington State Patrol Trooper Dale Johnson explained.

"All evidential testing should have at least two tests that agree with one another to a certain degree of statistical probability. This is elementary science," Hingson said.

"Since I've been employed, single-breath sample testing is the way we collected breath samples," Oregon State Police Sgt. Tim Plummer said.

Plummer says Oregon has been using the same testing method for at least 15 years. He believes it's accurate but says there's a chance that Oregon will follow the lead of neighboring states and go to a two-breath sample system.

"There is. That is the industry standard that the industry is moving towards. The problem with it is Oregon's administrative rule and Oregon's law right now -- it only allows us for one breath test," Plummer explained.

Hingson says a client of his received two vastly different results from two breath tests administered in Oregon.

"If one is .00 and another is .19 and they're 15 minutes apart, there's something wrong with the testing process. They won't admit it. They won't change their program," Hingson said.

He believes that innocent people are falling through the cracks.

A UK female boozer story - what a loser

SHE IS SITTING on the pavement at 2am. She is either crying inconsolable, irrational tears or laughing so hard she can’t clamber back on to her heels. Her eyeliner is smeary, there is a suspicious stain on her Whistles top, but somehow after 15 vodka shots she is still attached to her clutch-bag and her swaying best mate.
This week we have been bombarded by prurient images of the female drunk: the mini-skirted binge-bird army who will defile our city centres 24/7 with lewd cries and pink vomit, or the 21-year-old student too off her face on vodka to recall whether she’d consented to sex with a security guard on a corridor floor.

A drunk man can be many things. A bully, a brawler, a pisser-away of promise certainly. But also a poet, a playboy, a bon viveur, a comic hero, a top bloke. George Best encompassed them all. But a drunk woman is only ever pathetic. She evokes disgust, unease, pity, even fear that nature itself is being perverted.

What we term femininity is predicated upon poise, self-control, taking heed of the approval of others, especially men. Alcohol abrogates control, ends care. The prettily made-up party face cracks open to reveal a cackling creature of crude appetites. Men have always called for female sobriety. Ian Fleming decreed in Casino Royale that ladies should follow a ratio of one drink to a man’s three and Tony Parsons, the columnist. raged against female boozers “because being drunk makes you loud, obnoxious, sentimental and stupid. And . . . women are like that when they are completely sober.”

In Gin Lane, Hogarth depicted a drunken mother allowing her infant to tumble to its death. Today fear of “mothers’ ruin” takes the form of endless reports that a Bacardi Breezer habit will render young women barren and the belief that Kate Moss deserves our opprobrium for her excessive partying because she has a child.

So what should we conclude from the fact that a third of women now drink well over medically acceptable levels? Are ladettes, Marlboro Light in one hand, house white in the other, laughing, dancing and screwing with the careless abandon once only enjoyed by men, the ultimate liberated females? Are they now winning feminism’s last battle: the right to equal fun? Are they having the best time of any generation of women yet born? Is it not fantastic that while their grandmothers waited at home, afraid to enter men-only pubs, today’s women now have bright, cheery, girl-friendly bars? Or that while as a teenager I had to learn to like bitter — in a “lady’s glass” — today’s female drinker now enjoys an array of sweet drinks tailored to her palette or can afford vodka which, thanks to the Chancellor, is 54 per cent cheaper relative to incomes than it was in 1981.

If dressing up in skimpy clothes, cheering for Man U in sports bars, accompanying blokes to lap-dancing clubs, having sex with half-strangers and being sick on the way home, truly is what young women want — and is not some new lads-mag stereotype to which they feel obliged to conform in order to win the attention and approval of boys — then who are we to deny them?

And of course, the Seventies feminist slogan — “whatever we wear, wherever we go, ‘yes’ means ‘yes’ and ‘no’ means ‘no’ ” — still stands. But is that enough to protect those who today really do go anywhere wearing anything, yet still live in a country that convicts just one in every 14 men accused of rape? It should be possible to state — without insinuating that women bring sexual violence upon themselves — that they must take more responsibility for their own safety. A woman who gets into a car with a bunch of strange blokes should be OK, but may not be. The blind drunk are vulnerable, reliant upon the decency of others. Booze blurs the edges between a lustful drunken shag and an unwanted assault, not just in the eyes of the law, but in those of the man on top of you.

We cannot be completely sure what happened when Ryairi Dougal, a student who that night was acting as a security guard, was asked to walk a drunken girl safely home. He may have tipped her on to the floor outside her student room and humped her unconscious body, as she claimed. In which case, according to the 2003 Sexual Offences Act he was a rapist since the woman had not the “freedom and capacity to make a choice”.

But what if she showed some vague initial interest — she recalls “emitting a pleasurable groaning sound” — before falling into a semi-stupor? That makes him what? Well, maybe a cad, a bounder, a sexual opportunist who, in that old phrase, “took advantage”. But a rapist? No. Dougal was cleared of any crime.

The judge’s ruling that “drunken consent is still consent” has been seen as a rapists’ charter. But what is the alternative? A limit on alcoholic units after which a woman’s word cannot be taken, some kind of bedroom breathalyser? Drunken consensual sex takes place every night: some couples have no other sort.

Many a girl has woken the next morning after such an encounter thinking first “why?” and then “never again”. In less litigious times, she would tell her friends, warn them, shame him. This would form the kind of instant moral justice that sets lives back on course, not ruins or be- smirches them in crown courts and newspaper columns. But if women are to use the law to seek retribution and heal their battered feelings, they must be prepared for its cold, sober rigour. And they should remember that while rape victims have our sympathy, no one loves a female drunk.




TRAPPED in my house all day with a child off school with a cold, I ring a louche young friend and fellow freelance. He’s in an excellent mood having just completed piles of work: “It’s because I’ve employed a personal assistant,” he says loftily.
Since my friend works from a garden shed, I marvel at the expense: “Oh, I’m not paying her,” he says. “I did loads of unpaid work experience when I left university. I felt it was time I got some back.” His young woman “intern” sits beside him in the shed filing and ringing editors up on his behalf.

I’m sorely jealous. My own intern has eaten all the biscuits, nags to play on my laptop and has now given me his cold.

Different state laws address the issue of actual “driving” vs “actual physical control” of the vehicle. Nearly every state has case law saying that circumstantial evidence in this scenario is sufficient to support a DUI.

DUI-DWI statutes employ a variety of terms to describe the prohibited vehicular activities.[1]

Under some DUI-DWI statutes it is illegal to "drive" a vehicle while intoxicated, while under other statutes it is illegal to "operate" a vehicle while intoxicated. Some statutes combine the terms in their statutes using disjunctive language and make "driving or operating" the prohibited activity. Occasionally a DUI-DWI statute will also include the term "attempt to operate "or" attempt to drive" as a prohibited vehicular activity.

In the states that follow the Uniform Vehicle Code, the prohibited vehicular activity is the "actual physical control" of a vehicle. In many states this activity is combined disjunctively with one or more other prohibited activities such as "driving" or "operating." In a few states the prohibited vehicular activity is the "physical control" of a vehicle, as opposed to "actual physical control." Some DUI-DWI statutes that use the term "drive" or "operate" as the prohibited vehicular activity define the term "driving" or "operating" to include actual physical control of a vehicle

Of the terms used to describe a prohibited vehicular activity, “actual physical control” is the most comprehensive wording used and the most inclusive. While some courts use the terms "operate" and "actual physical control" interchangeably, the term "operate" is usually less inclusive than the term "actual physical control," but broader and more inclusive than the term "driving," which is the narrowest and least inclusive of the commonly-used terms.[2] It is possible, for example, to have actual physical control of a vehicle while neither operating nor driving it.[3] Similarly, it is possible to operate a vehicle without driving it.[4]

The traditional definition of "driving" usually included a requirement that the vehicle be in motion.[5] The vehicle's motion, however, need not come from its engine. Sitting behind the wheel of a coasting vehicle whose engine is not running may constitute a "driving" of the vehicle, even if the keys are not in the ignition.[6] Similarly, the steering of a vehicle that is being pushed or towed may constitute a "driving" of the vehicle for purposes of a DUI-DWI statute.[7] The vehicle's motion must be the result of an intentional act of the defendant, however, and not the result of an accidental or unintentional event. Thus, the accidental depressing of the vehicle's clutch by an intoxicated but sleeping defendant, causing the vehicle to move was held not to constitute "driving" of the vehicle for purposes of a DUI-DWI statute.[8]

The statutory definition of "driving" is usually broader and more inclusive than the common law definition. Accordingly, several courts in applying a statutory definition of "driving" have held that direct evidence of vehicular motion is not a necessary element of "driving," especially if the vehicle's engine is running.[9]

The common law definition of "operation" usually includes the actual physical handling or manipulation of the electrical or mechanical controls of a motor vehicle, including the starting of the vehicle's engine.[10] A vehicle does not have to be in motion to be operated.[11] However, evidence must be present that the defendant exercised some control or manipulation over the vehicle, such as steering or braking, even if the vehicle is in motion. Evidence that the defendant was inside a moving but non-running vehicle, without more, does not constitute sufficient evidence of "operating" the vehicle.[12] However, it has been held that grabbing the steering wheel and stepping on the accelerator of a vehicle constitutes "operating" the vehicle even if another person is driving the vehicle.[13]

The "operation" of a vehicle requires the showing of intent by the defendant to set the vehicle in motion.[14] The starting of the vehicle's engine usually constitutes the showing of such intent and a person found alone in a non-moving vehicle whose engine is running is usually held to be "operating" the vehicle, even if the person was found asleep or unconscious.[15] Even if a vehicle whose engine is running is temporarily disabled or stuck in mud or snow, the person found behind the wheel may nevertheless be found to be "operating" the vehicle.[16]

Some courts, it should be noted, have held that a person found asleep behind the wheel of a non-moving vehicle whose engine was running was not "operating" the vehicle for purposes of a DUI-DWI statute.[17] In most cases of this sort the defendant's vehicle was found parked in a parking lot or similar area and not on or next to the highway, thus lessening both the inference that the defendant recently drove the vehicle and the intent to set the vehicle in motion.[18] A defendant found asleep behind the wheel of a vehicle whose engine was not running but whose key was in the ignition and turned to the "on" position, was held not to be "operating" the vehicle.[19] See also http://www.duiblog.com/2005/04/18#a143.

Under many DUI-DWI statutes it is illegal to be in or have "actual physical control" of a vehicle while intoxicated. "Actual physical control" of a vehicle by a person is generally held to exist when the person is in a position to exercise influence, domination, or regulation over the vehicle.[20] "Actual physical control" does not require the vehicle to be in motion or its engine to be running: it need only be shown that the defendant had an immediate potential to operate the vehicle.[21]

To be in "actual physical control" of a vehicle, the defendant must normally be found inside the vehicle.[22] However, a defendant standing near the open trunk of a vehicle whose engine was running and that had a flat tire was held to be in physical control of the vehicle for purposes of a DUI-DWI statute.[23]

If it is shown that the defendant was inside a non-running vehicle, the location of the defendant inside the vehicle and location of the ignition keys are important issues. If the defendant was found behind the wheel and if the ignition keys were either in the ignition or in the actual or constructive possession of the defendant, a finding of "actual physical control" over the vehicle is likely to be upheld, even if one or more other acts (such as the fastening of a seat belt) had to be performed before the vehicle's engine could be started.[24]

The fact that the defendant was found asleep or unconscious does not prevent a finding of "actual physical control" if the defendant was found inside the vehicle and if the ignition keys were either in the ignition or in the possession of the defendant.[25] Courts following this line of cases frequently cite a legislative intent to apprehend drunk drivers before they can strike.[26]

Some courts, however, have refused to follow this approach. In several reported cases a finding of "actual physical control" was reversed where the defendant was found asleep or unconscious inside a non-running vehicle parked off the highway and where the ignition key was either disengaged or in the "off" position.[27] In such cases the courts often state that it is not feasible for an unconscious defendant to have actual physical control of a vehicle. The appellate courts cite a legislative intent to encourage drinking drivers to pull off the road until they are sober.

The fact that a vehicle was temporarily immobile because it was stuck in mud or snow is insufficient to prevent a finding of "actual physical control."[28] Further, a finding of "actual physical control" has been upheld where the vehicle was out of gas or otherwise temporarily inoperable.[29] However, proof that the vehicle could not have been operated under any reasonable circumstance has been held to be a defense to the establishment of "actual physical control."[30] This defense must be raised by the accused driver, however, as the prosecution does not have to prove that the defendant's vehicle was operable to establish "actual physical control."[31] Each state’s rules of criminal procedure control how this is done.

In a few states the operative term in the DUI-DWI statute is "physical control" of a vehicle, as opposed to "actual physical control." While the terms are similarly construed in most instances, it has been held that the term "physical control" is broader and more encompassing than the term "actual physical control."[32] Thus, an intoxicated person sitting in the right front passenger seat of a vehicle who reached over and stepped on the accelerator pedal was held to be in "physical control" of the vehicle for purposes of a DUI-DWI statute, even though the vehicle was being driven by another person.[33]

Regardless of the type of statute in a particular state, there must be some credible evidence that the defendant "operated" (or "had actual physical control of," etc.) a vehicle in order to sustain a DUI-DWI conviction. A DUI-DWI conviction was reversed on the grounds of insufficient evidence of operating the vehicle where it was shown that the officer investigating a one-car accident did not observe the defendant operating the vehicle and the defendant's admission of driving was suppressed because the officer failed to give the defendant a Miranda warning prior to questioning him about driving.[34] Insufficient evidence of actual physical control was found to exist where the defendant was found by police seated in the vehicle with the engine not running and where it was claimed that the defendant's girl friend had been driving the vehicle at the time of the accident.[35]

A few states go even further to prosecute people who are drunk and ACT like they may try to drive. These states also have a separate crime of “attempted” DUI-DWI.[36] Other states have ruled that there is no such crime possible.[37]






[1]J. Pearson, WHAT CONSTITUTES DRIVING, OPERATING, OR BEING IN CONTROL OF MOTOR VEHICLE FOR PURPOSES OF DRIVING WHILE INTOXICATED STATUTE OR ORDINANCE, 93 A.L.R.3d 7 (1979 - 2005).

[2]State v. Wiles, 26 S.W.3d 436 (Mo. App. 2000); State v. Jones 752 A.2d 1169, 714 So.2d 819 (La. App. 1998).

[3]State v. Thurston, 84 S.W.2d 536 (Mo.App. 2002); Bodner v. State, 752 A.2d 1169 (Del. Supr. 2000).

[4]Ferguson v. State, 198 Miss. 825, 23 So.2d 687 (1945); McDuell v. State, 231 A.2d 265 (Del., 1967); For an in-depth discussion of this subject, see Annotation: What Constitutes Driving, Operating, or Being in Control of a Motor Vehicle for Purposes of Driving While Intoxicated Statutes, 93 A.L.R.3d 7 (1979 - 2005)..

[5]State v. Johnson, 130 N.M. 6, 15 P.3d 1233 (2000); People v. Swain, 959 P.2d 426 (Colo. 1998).

[6]State v. Fisher, 57 Or. App. 776, 646 P.2d 652 (1982).

[7]State v. Thomas, 28 Kan. App. 2d 655, 20 P.3d 82 (2001); Williams v. State, 884 P.2d 167 (Alaska 1994).

[8]People v. Edwards, 158 Misc. 2d 615, 601 N.Y.S.2d 539 (1993).

[9]Johnson v. State, 194 Ga. App. 501, 391 S.E.2d 132 (1990); Boone v. State, 105 N.M. 223, 731 P.2d 366 (1986); State v. Fields, 77 N.C.App. 404, 335 S.E.2d 69 (1985).

[10]State v. Dubany, 184 Neb. 337, 167 N.W.2d 556 (1969); McDuell v. State, 231 A.2d 265 (Del., 1967).

[11]State v. Wymbs, 10 Ohio Misc.2d 26, 462 N.E.2d 195 (1984); State v. Morris, 262 N.J. Super. 413, 621 A.2d 74 (1993).

[12]State v. Rossi, 734 So.2d 102 (La. App. 1999); State v. Brister, 514 So.2d 205 (La. App. 1987).

[13]State v. Cruz, 121 Or. App. 241, 855 P.2d 191 (1993).

[14]Prudhomme v. Hults, 27 A.D.2d 234, 278 N.Y.S.2d 67 (1967); State v. Mulcahy, 107 N.J. 467, 527 A.2d 368 (1987).

[15]Commonwealth v. Williams, 871 A.2d 254 (Pa. Super. 2005); Oliver v. Commonwealth, 40 Va. App. 20, 577 S.E.2d 514 (2003); Villalobos v. Zolin, 35 Cal. App. 4th 556, 41 Cal. Rptr. 2d 207 (1995).

[16]People v. David "W", 83 A.D.2d 690, 442 N.Y.S.2d 278 (1981); State v. Dubany, 184 Neb. 337, 167 N.W.2d 556 (1969).

[17]Wells v. Commonwealth, 709 S.W.2d 847 (Ky. App. 1986).

[18]City of Whitefish v. Large, 318 Mont. 310, 80 P.3d 427 (2003); State v. Telakowitz, 61 Ohio Misc. 2d 499, 580 N.E.2d 101 (1991).

[19]Harris v. Commonwealth, 709 S.W.2d 846 (Ky. App. 1986).

[20]State v. Robison, 281 Mont. 64, 931 P.2d 706 (1997); State v. Bugger, 25 Utah 2d 404, 483 P.2d 442 (1971); State v. Duemke, 352 N.W.2d 427 (Minn. App. 1984).

[21]State v. Kelton, 168 Vt. 629, 724 A.2d 452 (1998).

[22]Bearden v. State, 430 P.2d 844 (Okla. Crim. App., 1967); Overbee v. Commonwealth, 227 Va. 238, 315 S.E.2d 242 (1984).

[23]State v. Woodward, 408 N.W.2d 927 (Minn. App., 1987).

[24]Cincinnati v. Kelley, 47 Ohio St.2d 94, 351 N.E.2d 85 (1976); LaBeau v. Commissioner, 412 N.W.2d 777 (Minn. App., 1987); Petersen v. Dept. of Public Safety, 373 N.W.2d 38 (S.D., 1985).

[25]State v. Dawley, 201 Ariz. 285, 34 P.3d 394 (2001); Commonwealth v. Woodruff, 447 Pa. Super. 222, 668 A.2d 1158 (1995); State v. Williams, 752 S.W.2d 454 (Mo. App. 1988); Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985); Adams v. State, 697 P.2d 622 (Wyo. 1985); Hughes v. State, 535 P.2d 1023 (Okla. Crim. App. 1975).

[26]State v. Smelter, 36 Wash.App. 439, 674 P.2d 690 (1984).

[27]State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983); State v. Bugger, 25 Utah 2d 404, 483 P.2d 442 (1971); State v. Pazderski, 352 N.W.2d 85 (Minn. App., 1984); Roberts v. Commissioner, 371 N.W.2d 605 (Minn. App., 1985).

[28]State v. Hendricks, 586 N.W.2d 413 (Minn. App. 1998); Lathan v. State, 707 P.2d 941 (Alaska App., 1985)

[29]State v. Smelter, 36 Wash.App. 439, 674 P.2d 690 (1984).

[30]Jones v. State, 510 So.2d 1147 (Fla. App., 1987).

[31]Toledo v. Voyles, 14 Ohio App.3d 419, 471 N.E.2d 823 (1984); Crane v. State, 461 P.2d 986 (Okla. Crim. App., 1969).

[32]State v. Juncewski, 308 N.W.2d 316 (Minn., 1981).

[33]Ives v. Commissioner, 375 N.W.2d 565 (Minn. App. 1985).

[34]Cook v. State, 37 Ark. App. 27, 823 S.W.2d 916 (1992).

[35]Commonwealth v. Price, 416 Pa. Super. 23, 610 A.2d 488 (1992).

[36]Kansas: State v. Kendall, 55 P.3d 660 (Kan. 2002); Maine: [Me. Rev. Stat. Ann. Tit. 29 § 1312]; New Hampshire: [ N.H. Rev. Stat. Ann. § 265.82]; Vermont: [Vt. Stat. Ann. Tit. 23, § 1201]; Maryland: [Md. Transp. Code Ann. § 8-1567]. Other states have ruled that there is no such crime possible. Strong v. State, 87 S.W.3d 206 (Tex.App.-Dallas, 2002); People v. Prescott, 722 N.Y.S.2d 1334 (1997).

[37]Strong v. State, 87 S.W.3d 206 (Tex.App.-Dallas, 2002); People v. Prescott, 722 N.Y.S.2d 1334 (1997).

Police, scientists squaring off over field sobriety tests

November 20, 2005

Stand up!

Heels together. Toes out. Hands at your sides. Raise the leg of your choice in front of you, 6 inches off the ground, leg straight, toe pointed. Keep your eyes on your raised toe and begin counting aloud from 1,001 until I say stop.

One thousand one. One thousand two ...

Some dark night on the side of the road, police car lights flashing in your peripheral vision, your freedom might depend on how well you do this.

Did you sway? Raise your arms for balance? Hop, or put your foot down? If you did any two, an officer will conclude with 65 percent accuracy, as stipulated in the prevailing science of inebriation diagnostics, that you might be too drunk to drive.

Did you bend your leg? Stare straight ahead instead of at your foot? Begin too soon? Officers are taught that people under the influence of alcohol don't follow directions well.

This is the one-leg stand -- OLS in cop-speak. It is one of the three scientifically researched standardized field sobriety tests, blessed by the National Highway Traffic Safety Administration, that officers call "the Holy Grail" and give on the roadside to help them decide whether to make an arrest for drunken driving.

The NHTSA says officers using scores from all three tests will be 91 percent accurate in making an arrest.

The NHTSA says the most accurate of the three is the horizontal gaze nystagmus test, or "jerking eyeball" test. An officer holds a penlight or small flashlight before you and asks you to track it visually from side to side. If you've indulged too much, your eyeballs will begin shaking about 45 degrees from the center.

The two other tests, the one-leg stand and the walk and turn (nine steps forward and back on a straight line), are "divided attention" tests that require both mental concentration and physical coordination. The one-leg stand has its skeptics and its court challenges, but the test is "easily performed by most unimpaired people," the NHTSA says.

Before the one-leg stand, police officers were on their own.

Some threw coins on the ground and ordered that only nickels or quarters be picked up. They would have a driver lean back and touch one finger to his nose. Recite the alphabet without singing. Count backward from 100 by threes. Trace a paper maze. Rapidly tap a telegraph key. Some gave tongue twisters such as "Methodist, Episcopal, sophisticated statistics." Texas Rangers just chatted for a bit before making a judgment call.

Chuck Hayes, a state trooper for 30 years in Oregon, remembers fellow officers putting their flashlights on the ground and telling drivers to run around them five times.

"How are you going to tell if a person is impaired that way?" said Hayes, now a field sobriety test trainer for the International Association of Chiefs of Police. "There was just some weird, weird stuff."

So in 1975, the NHTSA requested proposals to develop a valid, standardized test battery that would be easy to use on the side of the road. Marcelline Burns and her colleagues at the nonprofit Southern California Research Institute in Los Angeles got the job.

Burns, 77, is a research psychologist who calls herself the "grandma guru" of the standardized field sobriety tests. She's had a long career developing them, testifying in courts nationwide as an expert witness and training police officers to use them correctly.

Her group recruited 238 subjects from the local unemployment office -- anyone over age 21 with a driver's license and who admitted to imbibing a few -- and paid them $3 a day. Subjects came to the lab, starting at 8 a.m., and were "dosed" with either a placebo of orange juice or a screwdriver. They were then led to small rooms where 10 California police officers waited. The officers administered six sobriety tests, then made a determination on the subject's blood-alcohol content and whether they would make an arrest.

Burns' final report, "Psychophysical Tests for DWI Arrest," was published in 1977. She wrote that while all six tests were sensitive to alcohol -- meaning that drunken subjects tended to perform worse than sober ones -- the "best" tests were the three now in use today.

Burns did not test the drunken subjects when sober to see how well they could balance on one leg naturally.

"The evidence that it's an easy task comes from the placebo people," she said. "They could do it fine."

Here's a bar chart from her study: Most were men, ages 22 to 29.

One could argue the placebo people didn't look much like America.

So hundreds of thousands of drivers have been arrested -- no doubt many deservedly so -- on the basis of a 30-year-old study that, critics argue, has never been published in a peer-reviewed, scientific journal, never tested on a large scale with a control group and, perhaps more astonishing, has nothing to do with actual impairment from alcohol. Burns admits upfront that the tests are designed only to gauge blood-alcohol content, not whether you're a menace on the road.

Burns insists that the average person should be able to balance on one leg for 30 seconds. She can. She practices the one-leg stand every few weeks.

Question of balance

Consider how imbalanced we are. Forty percent of Americans will at some point in their lifetime experience a balance disorder, and dizziness and vertigo are the third leading cause of doctor visits, behind lower back pain and headaches, according to the National Institutes of Health.

Research indicates that the older you get, starting about age 50, the less likely you will be able to stand on one leg for very long, and the more likely you will be to fall. It's anybody's guess as to the "normal" ability to balance.

"The human equilibrium is a very complex system," said Richard Gans, founder and director of the American Institute of Balance in Florida. "Some people refer to it as the sixth sense, and that doesn't mean I see dead people.'"

The body must use three different systems to balance: The vestibular system that works like "finely tuned gyroscopes" in each inner ear, the visual system and the skeletal system, particularly the muscles, joints and tendons in the lower half of the body.

Ever had encephalitis, meningitis, shingles, chickenpox, ear infections, cardiovascular problems, numbness or tingling in the extremities, or migraines? You may be unable to balance. Diabetes? You may not be able to feel your feet well enough to balance.

Alternatives

Some forensic psychologists and a slew of DWI defense attorneys have been assiduously picking apart Burns' research on the standardized field sobriety tests for years. She is unmoved.

"We're now 30 years past the development of the test. They're widely used by police officers. Why would they use them if they don't help them make a proper decision?" she said. "These defense attorneys write all this stuff, but never once do they suggest an optional test. What do they want the officer to do? Toss a coin?"

Not at all, says Spurgeon Cole, a Georgia forensic scientist and consultant who has been Burns' chief nemesis in court and expert witness for the defense for years. But maybe videotapes in patrol cars, he argues, would help remove some of the subjectivity.

"How does age or gender affect performance? How does fatigue or practice affect performance?" he has written. "Without answers to these basic questions, the SFST remain in the same category as tarot cards."

Cole administered the tests to 21 of his students at Clemson University in South Carolina -- none of whom had had a drop of alcohol -- and showed the videotape of their performance to a group of officers, who reported they'd arrest nearly half the students.

"And these people had absolutely zero to drink," Cole said in an interview. "These tests are absolutely worthless."

So what's a police officer to do?

Some researchers like the "alternating hand pat" test, in which the subject hits the back of one hand with the palm of the other and then alternates hands. Others believe some kind of driving simulator would be best. A closed driving course, while impractical, would be best, everyone agrees. But previous studies have found that about 20 percent of drivers actually improve with alcohol. "I guess it calms them down," Cole said.

That leaves us right back where we started, with the one-leg stand.

One thousand one. One thousand two. One thousand three...

Untrained, unskilled, uncorrected drivers to blame for most traffic crashes
Saturday, November 19, 2005

By JERRY PAREGIEN

(Jerry Paregien is a retired California Highway Patrol Sgt. who now lives in Kingsport.)


I have been appalled at how frequently East Tennesseans lose their lives.

The days are gone when we could blame our high accident rate on mechanical failure, bad weather, heart attacks, highway engineering or overcrowded highways. We have to face the unpleasant fact that the problem is our ordinary, everyday East Tennessee drivers whose knowledge of traffic laws is lacking, whose driving skills are being outpaced by the new sophistication of highways and traffic controls, and whose willingness to obey simple safety rules has been compromised by a lack of adequate traffic law enforcement. This alone has made East Tennessee an unusually dangerous place to drive.

My wife and I love East Tennessee and its wonderful, kind people more than we can say. We love it so much that when we first visited here in 1995 we went back home to California, sold out, and moved back just as fast as our raggedy convoy of rented trucks could get us here. We have never and will never regret that move. But despite our great affection for the area and its people, we have had to grow into the sobering realization that being killed in an automobile is much more of a possibility in our newly adopted home state than in our old one.

Local folks drive with a very bad understanding of how easy it is to get killed in a car. Therefore, they speed, and speed, and speed. They speed in the rain, in darkness, on winding roads, in heavy traffic, through school districts, and past the front doors of hospitals. They even speed in parking lots and areas brightly posted as "High Collision Areas." Get in the fast lane of an East Tennessee interstate and you will soon have an 80-plus mph driver riding your back bumper. Worse, our local folks go faster than their driving skills qualify them to. Just read the local papers and you'll soon read of an accident where a driver "lost control of his car" and ran off the road. The culprit in most of these cases is, simply, excessive speed for conditions. It's not surprising at all that the Kingsport Police Department alone issued 3,972 speeding citations during the first half of 2005.

Right-of-way violations are as much a part of the East Tennessee experience as sweet tea and rhododendrons. Despite the number of deadly "T-Bone" crashes that result from these violations, our local drivers cut each other off as if Tennessee has no right-of-way laws at all. Typically the result of haste, inattention or a poor knowledge of traffic laws, these violations place everyone on the highway at risk for a devastating crash. If our local policemen need a moral justification for carrying ticket books, this is it.

Then there is tailgating. Although this is known to be one of the most dangerous things a driver can do, tailgating has been elevated to the status of a local art form. The biggest danger here is that the tailgater, seeing that he can't stop in time, will swing into the oncoming lanes and cause a bloody head-on crash, or swerve to the right and slam into a ditch or a tree with often fatal results. It becomes doubly dangerous on interstate highways where higher speeds can lead tailgaters to take evasive action across grassy center dividers and into 100 mph collisions with oncoming interstate traffic. Most local folks don't seem to realize that. This habit is representative of everything I said is wrong with East Tennessee drivers a paragraph or two ago. Tailgating is a terribly ill-advised thing to do.

Another deadly local tradition is cutting corners on left turns. I cannot think of a better way to become involved in a head-on collision than to depart an intersection on the wrong side of the road. It not only puts one into an automatic head-on crash situation, it also places him in an automatic liability situation. After all, what can one say after crashing into someone head-on while driving on the wrong side of the road? Not much. Yet this practice is so ingrained in our East Tennessee drivers as to be a part of the local driving culture, literally.

Running red traffic signals has become an area of great concern in the Tri-Cities, and rightly so. It has gotten so bad here that one takes his life in his own hands when he moves into an intersection on a green light before all of the red light runners have stopped spewing from the opposing left turn lane. This is often a rampant violation in areas experiencing growth in population and traffic; i.e., more cars mean more traffic lanes; more traffic lanes mean more complex intersections and longer waits between green lights. This is where we are at the present time in the Tri-Cities area, and it is only going to get worse because widespread, habitual red light violations are very, very hard to stop.

I dearly love Tennesseans, but I honestly believe that they like stopping at stop signs about as much as they like new taxes. And they don't just "ooze" through them on right turns either; they run them as if they aren't even there. Traffic officers have an old joke to the effect that "STOP" to a lot of drivers is an acronym for "Spin Tires On Pavement." From everything I've seen during my stay in the Tri-Cities, that joke might just have originated here.

There are a huge number of East Tennessee drivers who fail badly when it comes to keeping their automobiles on their own side of the road. Again, this seems to be a deeply ingrained part of the region's driving culture because I see it all over East Tennessee, and it regularly kills people. Living in Indian Springs and driving on Memorial Boulevard, I see it every single day. This particular act is nothing more than sloppy, careless driving that places everyone else on the road in jeopardy.

Failing to give a turn signal is another local habit badly overdone. This usually occurs at the approaches to intersections or while changing lanes on a multiple lane highway. This failure defeats the meeting of the minds needed between converging drivers and ultimately leads many of them into collisions. It is a long-recognized risk to life and limb but remains firmly entrenched in the local driving environment.

Folks in our neck of the woods demonstrate a great deal of confusion over the correct use of two-way left turn lanes, giving rise to the local nickname "suicide lanes." The rules for using these lanes are quite simple. They are for making left turns but may also be used as safety islands for entering the highway from a driveway or a side street - nothing else. One may never routinely drive in them as there is a 300-foot limitation on travel in these lanes. However, local folks often use them as passing lanes, traffic lanes, and acceleration lanes.

Local drivers have a particularly tough time with failing to merge correctly on high-speed highways. All too often we see drivers stopping at the end of on ramps and dutifully giving a left turn signal as if entering a highway from a side road governed by a stop sign. This presents a major hazard to the other drivers approaching behind them who are trying to do it correctly by reaching a highway speed before entering the traffic lanes. There is also a common tendency for drivers in the traffic lanes to completely ignore the needs of the merging drivers as if the right of way belonged entirely to them. This often forces entering drivers to stop abruptly at the end of the on ramp or continue on down the shoulder or, worst of all, to merge unsafely. Merging onto a high-speed highway is best done as a cooperative effort between passing drivers and entering drivers. But around East Tennessee this cooperative effort frequently breaks down in inconsiderate behavior and confusion over who is supposed to do what.

Poor driving skills or inability to control the car stands out as one of East Tennessee's most visible driving problems. From all evidence, there are a considerable number of local drivers who simply do not know how to operate a motor vehicle. They have a poor understanding of accelerating, braking and steering, and do all three badly.

Coming home recently on a two-lane road, I watched a frequently seen error in which a driver took a gentle curve too wide and drifted well out onto the grass shoulder for a hundred feet or so before he regained control. This happened near a spot where another driver recently left the roadway on a gentle curve, slid out into a field and destroyed an outbuilding. Then, awhile back, I was stopped at a red light in Johnson City when a sedan came around a corner too fast, slid broadside and slammed into me. The driver was honestly mystified as to what he had done wrong.

Our newspapers are replete with reports of accidents in which drivers dropped a wheel off of the pavement, overcorrected and wrecked their cars. Others spin out on turns simply because they honestly do not know how to select a safe speed for that particular turn. I have repeatedly seen cars spin out on curves, high-center on berms, drive off of straight roads, slam into curbs while parking, and many other moves that can only be explained as a basic inability to control the car. These drivers are the same fine East Tennessee folks I've grown to love so much, and I'm sure they would like to do it correctly, but they just don't know how.

Few acts speak louder about a community's general lack of caution, disregard for rules, and driving judgment than widespread zooming across large parking lots without regard for marked trafficways or directional arrows. This is one of East Tennessee's more common driving peculiarities. In fact, driving in an East Tennessee parking lot is a lot like driving a boat on a large lake - you must constantly expect traffic to approach from any direction at any time without rhyme or reason.

Many East Tennesseans actually sail through intersections having inoperative traffic signals without stopping or even looking - if the signal doesn't work, then the attitude is that nobody has to stop. I have personally witnessed this several times during power failures at intersections as large and complex as that of Fort Henry Drive and Moreland Drive. As in many other states, Tennessee law requires drivers to stop for inoperative traffic signals as if they are four-way stop signs.

Refusal to wear seat belts kills East Tennesseans with great regularity. Despite a very good "Click It or Ticket" campaign by the Tennessee Highway Patrol and local agencies, our Tennessee friends and neighbors hang on to this one tenaciously, almost proudly. Having seen more than my share of folks die in automobiles only because they weren't wearing their belts, these senseless, easily preventable deaths are a real heartbreak. The "NASCAR mentality" in my lexicon of slang terms, is any and all of the above in any combination when committed as if flying a fighter plane in combat. East Tennessee has an abundance of this kind of driver, and many of them crash or cause others to crash just because their driving skills and maturity levels are both sadly lacking.

These are the folks they invented county jails for.

San Diego DUI field sobriety tests can be no fun. Funny field sobriety videos are out there:


1. Steve Martin from the Man with two brains.

2. Cowboy from Reno 911 the first season.

3. Homer Simpson from The Simpsons fourth Season.

4. Barney and Otis from the Andy Griffith Show the first season.



Are there any others out there?

Yesterday in the Tri-Valley Times, it was reported that Contra Costa Sheriff’s deputy, Bradley Pedersen was arrested on suspicion of possessing child pornography.

In April Officer Pedersen was awarded the California Hero Award by MADD. The gals at MADD sure knows how to pick them.

http://www.sandiegodui.com/

DUI Suspects May Go Free Due To Questionable Arrest Reports

POSTED: 5:49 pm EST November 16, 2005

ORLANDO, Fla. -- 9 Investigates has uncovered dozens of DUI suspects that may go free because sheriff's deputies appear to be using pre-written arrest reports. There are some experts who believe this may even amount to perjury.

When a deputy makes a DUI bust, the officer writes an arrest report. It's the official record of what the deputy says happened. But Eyewitness News has uncovered dozens of Orange County DUI arrest reports that apparently have come from pre-written templates.

One report, for instance, says the suspect "stumbled slightly when walking and swayed moderately ... with a three inch to five inch orbital rotation/sway." At least ten reports, written by the same deputy over a six-month period, use the exact same phrase. Even reports written by other deputies contain that exact phrase.

In many reports, the deputy noticed the "strong odor of an alcoholic beverage within my interior cab." That exact phrase appears in report after report. And it's there whether the suspect's blood alcohol content was anywhere from .03 to .16. 9 Investigates found 11 other reports, written by a different deputy, that use those exact words, again, no matter how much the suspect had to drink.

"It just doesn't smell right," said DUI defense attorney Stu Hyman. "It's a sad state of affairs when somebody hasn't even committed the offense yet, but the report has already been written."

9 Investigates found one deputy whose suspects always do an "orbital rotation" and always "counter-clockwise." Five deputies always leave their suspects in the car for exactly five minutes before smelling alcohol. In one case, a suspect was described as "he/she."

It all leads Hyman to believe the reports were pre-written.

"Why is it that everyone is swaying three to five inches? Why isn't it two to eight? Why not one to seven inches?" questioned Hyman.

Sandra Johnson worries attorneys will use the deputies' reports to get DUI suspects off the hook. A drunk driver killed her only child.

"Is he not taking the time to get all the information when he's doing his report? If that's what he's doing, he needs to have his a** kicked," Johnson commented.

9 Investigates contacted the sheriff's office commander to see if they were worried about it, but they never responded.

9 Investigates found court testimony where a deputy indicated the sheriff's office has computer DUI templates. The deputy testified, "I've been told people use them. I just choose not to."

Hyman speculates deputies are using buzzwords, hoping to strengthen their cases. But he believes those words will backfire and he'll be able to help his clients walk free. That infuriates Johnson.

"When that driver kills somebody, it's on that officer's head," she said.

Hyman actually believes if the deputies are using pre-written templates, they may be committing perjury. Prosecutors say it might not rise to that level, but anything that makes a jury question the authenticity of an officer's report could jeopardize a case.

San Diego DUI Lawyer Common Challenges To Breath Tests


The Breath Test Machine Was Not Properly Administered or Operated

The Machine Was Not Properly Maintained

The Machine Was Not Properly Calibrated

The Machine Was Affected By Radio Frequency Interference (Radio e.g.)

The Machine Did Not Have An "Acceptable" Range

Your Body Temperature Was Greater Than 98.6

You Were Tested Within 2 Hours From Your Last Drink

You Have Medical Or Dental Problems That Make You A Inappropriate Candidate For a Breath Test

The Officer Did Not Have You Under Continuous Observation For 15 Minutes Just Prior To The Breath Test

Your Symptoms And Drinking Pattern Are Not Consistent With The Numerical Test Result


The free evaluation at http://www.SanDiegoDUI.com/survey.html gives you an opporunity to see if you can challenge a San Diego DUI Breath test.

The San Diego County DUI Law Center http://www.SanDiegoDUI.com provides complete San Diego drunk driving information for those accused of DUI in San Diego County, California.

This worry-free DUI information shows what you really need to know about San Diego DUI court & San Diego DMV http://www.sandiegodui.com/courts.html, and how to save your driver's license. http://www.sandiegodui.com/why.html

There are only 10 days to act. http://www.sandiegodui.com/10days.html

Rick Mueller is the Top-Rated San Diego County Drunk Driving, DUI & DMV Defense attorney with over 20 years of experience. Known as the "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. http://www.sandiegodui.com/about.html

San Diego DUI Lawyer Rick Mueller's victories are at http://www.sandiegodui.com/victory.html.

Contact Rick Mueller at http://www.sandiegodui.com/contact.html.

Please complete the Free San Diego DUI Evaluation to find out your best strategy and to protect your driving privileges in California: http://www.sandiegodui.com/survey.html.

If arrested for a San Diego DUI, you can calculate your estimated BAC at http://www.duilawyerorangecounty.com/orange_county_bac.html.


A person's actual BAC is dependent on many complex factors, including their physical condition - body composition, health etc. and what they have recently ingested, including food, water, medications and other drugs. The results that are generated are rough estimates of an average healthy person's BAC assuming typical beverage sizes, recipes and alcohol content. The BAC estimates generated should not be used to infer anyone's fitness to work, drive or perform any other task or duty.

§1219.1. Blood Collection and Retention.

(a) Blood samples shall be collected by venipuncture from living individuals as soon as feasible after an alleged offense and only by persons authorized by Section 13354 of the Vehicle Code.

(b) Sufficient blood shall be collected to permit duplicate determinations.

(c) Alcohol or other volatile organic disinfectant shall not be used to clean the skin where a specimen is to be collected. Aqueous benzalkonium chloride (zephiran), aqueous merthiolate or other suitable aqueous disinfectant shall be used.

(d) Blood samples shall be collected using sterile, dry hypodermic needles and syringes, or using clean, dry vacuum type containers with sterile needles. Reusable equipment,if used, shall not be cleaned or kept in alcohol or other volatile organic solvent.

(e) The blood sample shall be deposited into a clean, dry container which is closed with an inert stopper.

(1) Alcohol or other volatile organic solvent shall not be used to clean the container.

(2) The blood shall be mixed with an anticoagulant and a preservative.

(f) When blood samples for forensic alcohol analysis are collected post-mortem, all practical precautions to insure an uncontaminated sample shall be employed, such as:

(1) Samples shall be obtained prior to the start of any embalming procedure. Blood samples shall not be collected from the circulatory system effluent during arterial injection of embalming fluid. Coroner's samples do not need a preservative added if stored under refrigeration.

(2) Care shall be taken to avoid contamination by alcohol from the gastrointestinal tract directly or by diffusion therefrom. The sample shall be taken from a major vein or the heart.

(g) In order to allow for analysis by the defendant, the remaining portion of the sample shall be retained for one year after the date of collection.

(1) In coroner's cases, blood samples shall be retained for at least 90 days after date of collection.

(2)Whenever a sample is requested by the defendant for analysis and a sufficient sample remains, the forensic alcohol laboratory or law enforcement agency in possession of the original sample shall continue such possession, but shall provide the defendant with a portion of the remaining sample in a clean container together with a copy or transcript of the identifying information carried on the original sample container.



§1219.3. Breath Collection

A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.

San Diego DUI / San Diego Drunk Driving cases deal with circumstantial evidence.

That is what you must try to poke holes through. To the extent you can argue the Prosecutor has not met the burden of proof, you can increase the likelihood of an acquittal.

That is why the new DUI instruction is so important.

This what a San Diego DUI jury will hear from the judge.

CALJIC 224. Circumstantial Evidence: Sufficiency of Evidence

"Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."

A San Diego DUI jury needs to accept the reasonable conclusion from the San Diego DUI circumstantial evidence which points to innocence.

San Diego DUI / Drunk Driving field sobriety tests (FST's) vary among San Diego County DUI enforcement officers within the same law enforcement agency as well as from one San Diego DUI agency to another San Diego DUI agency.

Field sobriety tests were initially limited only by the officers’ collective imaginations. In the late 1970’s, the United States Department of Transportation, National Highway Traffic Safety Administration (NHTSA) funded research to evaluate currently used physical coordination tests which were used to determine the relationship between intoxication and driving impairment, to develop more sensitive tests which would provide more reliable evidence of impairment, and to standardize the tests.

The researchers finally concluded that the three test battery, which included the Horizontal Gaze Nystagmus, Walk-and-Turn, and One-Leg Stand, offered a reliable field sobriety testing procedure.

The next step was to standardize these tests. Additional research was therefore conducted to complete the development and validation of this sobriety test battery and to assess the battery’s feasibility in the field , as well as its effectiveness for estimating the blood alcohol content of subjects and facilitating the identification of persons with a blood alcohol content above the legal limit.

Types of San Diego DUI Field Sobriety Tests

Horizontal Gaze Nystagmus

Nystagmus is the involuntary jerking of the eye. It can be an indication of intoxication. However, the occurrence of nystagmus is not dependent upon the presence of an intoxicant in the body. Substances that would not interfere with driving ability can produce nystagmus, and nystagmus may be congenital or caused by structural neurologic disease. Examples of possible manifestations of alcohol impairment emerging during nystagmus test include the inability to keep the head still; noticeable swaying, and the utterance of incriminating statements. Points are not deducted, however, for any of these behaviors.Examples of conditions that may interfere with suspect’s performance of the nystagmus test include a suspect having an artificial eye; having damaged or very weak vision in one eye; eye irritants such as wind, dust, and rain; and visual and other distractions which impede the test, such as traffic, blinking lights, rain, etc. Some persons who are not under the influence may exhibit nystagmus. Nystagmus may also be caused by certain pathological disorders such as brain tumors, brain damage and some diseases of the inner ear.

Walk and Turn

In this test, the subject assumes a heel-to-toe stance with the subject’s arms down at her side. The subject is to maintain this position until the officer tells her to begin walking. At that time, pursuant to the instructions given bythe officer during the instruction phase, the subject is to take 9 heel-to-toe steps down a real or imaginary, turn around and take 9 heel-to-toe steps back up the line. The turn is not a pivot, but instead is made by taking a series of small steps with one foot, keeping the front foot on the line. While walking, the subject is to keep her arms at her side, watch her feet at all times, and count her steps out loud. Examples of conditions that may interfere with suspect¹s performance of the walk and turn test include wind and weather conditions; the suspect being over the age of sixty; the suspect being fifty pounds or more overweight; the footwear of the suspect; and highway traffic.

One Leg Stand

The instructions for this test are given to the subject while the subject stands with his feet together, and arms down at his side until told to start. The instructions which are supposed to be given to the subject (with accompanying demonstration) are for the subject to stand on one leg (either leg), holding out the other foot approximately 6 inches off the ground, foot pointed forward so the raised foot is approximately parallel to the ground. While standing, the subject may be instructed to maintain this position while the officer estimates thirty second or the subject may be told to count out loud (one thousand and one, one thousand and two, and so on). Either way, the subject is to keep his arms at his sides at all times and watch the raised foot. Examples of conditions which may impede a suspect’s ability to perform this test include a test surface which is not dry and level; the suspect being over the age of sixty; the suspect being at least fifty pounds overweight; footwear which impedes the performance of the test, such as heels; and certain medical problems and disabilities.

Non Standardized San Diego DUI Field Sobriety Tests

There are other, non-standardized San Diego DUI field sobriety tests which have been approved for use by such organizations as International Association of Chiefs of Police ("I.A.C.P.") in their "Improved Sobriety Testing for Boating/Alcohol Enforcement" Student Manual and the U.S. National Park Service. These tests include, but are not limited to, the finger to nose test, the finger count test, the hand pat test, the alphabet test, and the counting test.

U.S. Department of Transportation, National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing, Student Manual, VIII-5

Some people think that if their blood or breath test was 0.08% or more, they will automatically lose their license. This is not always true.

It certainly is not true for those who hire an attorney to timely request a hearing within 10 days of the arrest/detention date.

Sure, the DMV is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) DUI who (1) has a .08% breath reading, or (2) takes a blood test (which will be analyzed later), or (3) refuses to take any test. This "stop & snatch" law means immediately -- on the spot: the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice (whether or not you receive it).

You have to then fight to get your license back. It can be done.

Did you know there are a number of legal & technical arguments, strategies and timely objections which could effectively avoid a suspension?

Did you know there are scientific defenses, including but not limited to the failure to strictly comply with the California Code of Regulations, which can and do result in suspensions being set aside?

I can find a failure of government agencies to follow the rules set forth in Title 17 of the California Code of Regulations which has resulted in successful challenges to DMV suspensions in many of my cases. (See http://www.sandiegoduihelp.com/victory.html.)

A DUI Specialist can also help you through the process in ways that will reduce any suspension imposed by as much as 75%.