An understanding of
impaired driving laws that apply in your jurisdiction is critical to successful
DWI enforcement.
All states (and many
local jurisdictions) have their own impaired driving laws. While the specific
language of these laws may vary significantly, most include the following
provisions:
• Basic DWI Law
• Implied Consent Law
• Illegal Per Se Law
• Preliminary Breath
Testing Law
Learning Objectives
Become familiar
with:
• Elements of DWI
offenses
• Provisions of the
implied consent law
• The relevance of
chemical test evidence
• Precedents established
through case law
At the conclusion of this
session, participants will be familiar with:
• Elements of DWI
offenses
• Provisions of the
implied consent law
• The relevance of
chemical test evidence
• Precedents established
through case law
In this session these
four types of impaired driving laws are discussed in detail. The illustrations
provided are drawn from the Uniform Vehicle Code. You are responsible
for learning whether and how each law applies in your jurisdiction.
CONTENT SEGMENTS LEARNING ACTIVITIES
A. Basic DWI Statute:
Driving While Instructor Led
Presentations Under the Influence
B. Illegal Per Se
Statute: Driving With a Prohibited Blood Alcohol Concentration
C. Implied Consent Law
and Presumptions Reading Assignments
D. Preliminary Breath
Testing
E. Case Law Review
Basic DWI Statute It is
unlawful for any person to operate or be in actual physical control of any
vehicle within this state while under the influence of alcohol and/or any
drug.
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3
A. Basic DWI
Statute: Driving While Under the Influence
A state's basic DWI
statute may be subtitled Driving While Under the Influence, or something
similar. Typically the statute describes the who, what, where and how of the
offense in language.
For example:
It is unlawful for any
person to operate or be in actual physical control of any vehicle within this
state while under the influence of alcohol and/or any drug.
Session
3
DWI Violation
Arrest
Probable Cause Person in
question operating or in actual physical control of vehicle while under the
influence:
• Alcohol
• Another drug
• Both
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4
Arrest
In order to arrest
someone for a basic DWI violation, a law enforcement officer must have probable
cause to believe that all elements of the offense are present. That is, the
officer must believe that:
The person in question
was operating or in actual physical control of a vehicle (truck,
van, automobile, motorcycle, even bicycle, according to specific provisions in
various states) while under the influence of alcohol, another drug, or
both.
Session
3
Conviction
• Establish all four
elements were present
• Operation
• Control
• Vehicle
• Impairment
• Criminal offense –
establish facts “beyond a reasonable doubt”
• Infraction –
standard of proof may be less
• Collect and
document all evidence
Conviction
In order to convict a
person of DWI, it is necessary to establish that all four elements were
present.
• Operation
• Control
• Vehicle
• Impairment
With regard to under
the influence, courts have usually held that phrase to mean that the
ability to operate a vehicle has been affected or impaired. To convict a person
of a basic DWI violation, it is usually necessary to show that the person's
capability of safely operating the vehicle has been impaired. If DWI is a
criminal offense, the facts must be established "beyond a reasonable
doubt." If DWI is an infraction, the standard of proof may be
less. In either case, it is the officer's responsibility to collect and
thoroughly document all evidence.
Illegal Per Se
Statute It is unlawful for any person to:
• Operate or be in
actual physical control
• Of any
vehicle
• Within this
state
• While having a BAC
at or above the state’s level
3 6
B. Illegal Per Se
Statute: Driving with a Prohibited Blood Alcohol Concentration
Description
Most states include in
their DWI law or implied consent law a provision making it illegal to drive
with a prescribed blood alcohol concentration (BAC). This provision, often
called an illegal per se law, creates another alcohol-related driving
offense which is related to, but different from the basic DWI offense.
Following is a typical illegal per se provision:
It is unlawful for any
person to:
• Operate or be in actual
physical control
• Of any vehicle
• Within this state
• While having a blood
alcohol concentration at or above state’s level.
To Convict Illegal Per
Se
• Establish BAC was at or
above state level while operating vehicle in state
• Not necessary to
establish impairment
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The illegal per se law
makes it an offense in and of itself to drive while having a BAC at or
above state’s level. To convict a driver of an illegal per se violation, it is
sufficient to establish that their BAC was at or above state’s level while
operating a vehicle in the state. It is not necessary to establish
impairment.
Illegal Per Se and
DWI Each defines a separate offense:
• DWI – driving
while under influence
• Chemical test is
presumptive evidence
• Illegal Per Se –
operate while having more than legal % of alcohol in blood or breath
• Chemical test is
conclusive evidence
The illegal per se
law does not replace the basic DWI law. Rather, the two work
together. Each defines a separate offense:
• The basic DWI law
makes it an offense to drive while under the influence of alcohol and/or any
drug.
• The illegal per se
law makes it an offense to drive while having more than a certain percentage of
alcohol in the blood or breath.
For the basic DWI
offense, the chemical test result is presumptive evidence. For the
illegal per se offense, the chemical test result is conclusive evidence.
Session
3
Illegal Per Se
Purpose
• Aid in prosecution
of DWI offenders
• Show the driver’s
BAC was at or above state level
• Often required to
secure conviction
and
Standardized Fie d SoTest ng 3
9
Illegal Per Se
Purpose
The principal purpose of
the illegal per se law is to aid in prosecution of DWI offenders. It is not
necessary for the prosecutor to show that the driver was "under the
influence." The state is not required to demonstrate that the driver's
ability to drive was affected. It is sufficient for the state to show that the
driver's BAC was at or above the state’s level.
While the statute aids in
prosecution, it does not really make DWI enforcement easier. An officer must
still have probable cause to believe that the driver is impaired before making
an arrest. The implied consent law usually requires that the driver be arrested
before the request of a chemical test. The law also requires that the arrest be
made for "acts alleged to have been committed while operating a vehicle
while under the influence." Therefore, the officer usually must establish
probable cause that the offense has been committed and make a valid arrest
before the chemical test can be requested.
Illegal Per Se
Summary
• Continue to rely
on your detection training and experience
• When making a DWI
arrest assume chemical tests will not be available
• Present your observations
clearly
• Thorough
documentation is critical
3 10
Illegal Per Se
Summary
Police officers dealing
with impaired drivers must continue to rely primarily on their own training and
experience in detection to determine whether an arrest should be made. Usually
it is impossible to obtain a legally admissible chemical test result until
after the arrest has been made. Sometimes drivers will refuse the
chemical test after they have been arrested. Then the case will depend
primarily upon the officer's observations and ability to articulate their
testimony. When making a DWI arrest, always assume that the chemical test
evidence will not be available. It is critical that you organize and
present your observations and testimony in a clear and convincing manner. This
will allow more impaired drivers to be convicted regardless of whether they
take the chemical test(s) or the test(s) results.
Session
3
Implied Consent
Laws and
Presumptions
• • “Under the influence” is difficult to prove
• • State statutes vary
ng 3 11
C. Implied Consent Law
and Presumptions
Description
It is not completely
clear to what degree the level of impairment equates to driving while under the
influence. Some courts have held that the slightest degree of impairment
in the ability to drive means the driver is "under the influence."
Other courts have held that there must be evidence of substantial impairment of
the ability to drive before a DWI conviction is warranted. Therefore, proving
that a driver was "under the influence" has been (and continues to
be) difficult.
To help resolve this
difficulty, states have enacted implied consent laws. The principal purpose of
the implied consent law is to encourage people arrested for DWI to submit to a
chemical test to provide scientific evidence of alcohol influence.
Key Features of Implied
Consent
• Operates or controls
motor vehicle
• Upon state public
highways
• Driver must consent to
chemical test to determine blood alcohol and/or drug content
• When arrested for acts
committed while operating under the influence of alcohol and/or any drug
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Sobriety Test ng 3 12
The implied consent law
usually includes language similar to “Any person who”:
• Operates or is in
actual physical control of a motor vehicle
• Upon the public highways
of this state
• Shall be deemed to have
given consent to a chemical test for the purpose of determining the alcohol
and/or drug content of that person’s blood
• When arrested for any
acts alleged to have been committed while the person was operating or in actual
physical control of a vehicle while under the influence of alcohol and/or any
drug.
The implied consent law
states drivers must submit to a chemical test(s). The law provides penalties
for refusal to submit to the test. The law also provides that the individual's
driver's license may be suspended or revoked if the refusal is found to be
unreasonable. The purpose of the implied consent law is to encourage those
arrested for DWI to submit to a chemical test so that valuable evidence may be obtained.
Legal Presumptions
BAC _____or more
• Presumed under the
influence Less than _____
Presumed not under
the influence At least _____ but below _____
• No
presumption
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Sobriety Test ng 3 13
Legal presumptions define
the significance of the scientific chemical test evidence. Usually the implied
consent law provides an interpretation or presumption for the chemical test
evidence like the following, for example:
If the chemical test
shows that the person's blood alcohol concentration (BAC) is .08 or more it
shall be presumed that the person is under the influence.
In some states – If the
test shows that the BAC is _____ or less, it shall be presumed that the person
is not under the influence.
If the test shows that
the BAC is more than but less than , there is no presumption as to whether the
person is or is not under the influence. The weight of the chemical test
evidence is presumptive of alcohol influence, not conclusive.
The court may accept the
legal presumption and conclude that the driver was or was not impaired on the
basis of the chemical test alone. However, other evidence such as
testimony about the defendant’s driving, odor of alcohol, appearance, behavior,
movements, speech, etc. may be sufficient to overcome the presumptive weight of
the chemical test.
Example Number 1 Is it
possible for a person whose BAC is above the state’s per se or presumptive
level to be acquitted of DWI?
It is possible for a
person whose BAC at the time of arrest is above the per se or presumptive level
legal limit to be acquitted of DWI. It is also possible for a person whose BAC
at the time is below the per se or presumptive level to be convicted of
DWI. Consider the following examples:
Example 1
A driver is arrested for
DWI. A chemical test administered to the driver shows a BAC of
0.13. At the subsequent
trial, the chemical test-evidence is introduced. In addition, the arresting
officer testifies about the defendant’s driving, appearance and behavior. The
testimony is sketchy, confused and unclear.
Another witness testifies
that the driver drove, behaved and spoke normally. The court finds the
defendant not guilty of DWI.
Example Number 2 Is it
possible for a person whose BAC was below the state’s per se or presumptive
level to be convicted of DWI?
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15
Example 2
A driver is arrested for
DWI. A chemical test administered to the driver shows a BAC of
0.05. At the subsequent
trial, the chemical test evidence is introduced. In addition, the arresting
officer testifies about the defendant’s driving, odor of alcohol, appearance,
slurred speech, and inability to perform divided attention field sobriety
tests. The testimony is clear and descriptive. The court finds the defendant
guilty of DWI.
The difference in
outcomes in the two examples cited is directly attributable to how well the
arresting officer articulates the evidence other than the chemical test.
Remember that the chemical test provides presumptive evidence of alcohol
influence; it does not provide conclusive evidence. While the "legal
limit" in a given jurisdiction may be 0.08 BAC, many people will
demonstrate impaired driving long before that "legal limit" is
reached.
Key Point
Chemical test evidence is
presumptive, not conclusive
3-16
Summary point: The
chemical test provides presumptive evidence of alcohol influence, but does not
provide conclusive evidence.
Preliminary Breath
Testing (PBT)
D. Preliminary Breath
Testing
Description
Many states have enacted
preliminary breath testing (PBT) laws. These laws permit a police officer to
request a driver suspected of DWI to submit to a roadside breath test prior to
arrest. PBT laws vary significantly from one state to another. A typical
statute reads as follows:
“When an officer has
reason to believe from the manner in which a person is operating or has
operated a motor vehicle that the person has or may have committed the offense
of operating while under the influence, the officer may request that person to
provide a sample of breath for a preliminary test of the alcohol content of the
blood using a device approved for this purpose.”
PBT results are used to
assist in determining whether an arrest should be made. The results usually are
not admissible as substantive evidence against the defendant in court.
However, PBT laws may provide statutory or administrative penalties if the
driver refuses to submit to the test. These penalties may include license
suspension, fines or other sanctions.
Case Law Reviews
• Landmark court
decisions relevant to the admissibility of Standardized Field Sobriety Tests
(SFSTs) and Horizontal Gaze Nystagmus (HGN)
• Challenges based
on:
• Scientific validity and
reliability
• Relationship of HGN to
specific BAC level
• Officer training,
experience, and application
E. Case Law
Reviews
The following cases are
landmark court decisions relevant to the admissibility of Standardized Field
Sobriety Tests (SFSTs) and Horizontal Gaze Nystagmus (HGN). Challenges to the
admissibility have been based on (1) scientific validity and reliability;
(2) relationship of HGN
to specific BAC level; and (3) officer training, experience, and
application.
State v. Blake
• State versus Blake (718
P.2d 171 Arizona 1986) is the landmark case
• The Blake case
established a very important precedent in Arizona.
Emphasize that Blake is
the landmark case.
State versus Blake (718
P.2d 171 Arizona 1986)
The State of Arizona
(Petitioner) vs. The Superior Court of the State of Arizona, in and for the
county of Cochise, and the Hon. James L. Riles, Division III (Respondent) and
Frederick Andrew Blake (Real Party in Interest) No. 18343-PR Court of Appeals
No. 2 CA-SA 0254 Cochise Co. No. 11684 April 7, 1986.
The Blake case
established a very important precedent in Arizona. The trial court ruled that
the HGN test was not reliable under Frye v. United States, 293 F.2d 1013
(DC Cir. 1923) and thus could not be used as part of probable cause. The case
was dismissed by the trial court. This ruling was appealed by the state and the
order of dismissal was reversed by the court of appeals and the case was
remanded for further proceedings (7/25/85).
The appellate court
decision was reviewed by the State Supreme Court. The State Supreme Court
approved the court of appeal's opinion, as modified, and vacated the trial
court's dismissal of the Blake prosecution for DWI and remanded the case for
proceedings not inconsistent with its opinion.
Following is a summary of
the facts of the case and a brief overview of the appellate court and Supreme
Court opinions.
State v. Blake (Cont.)
• After the defendant was
stopped for DUI, he was given field sobriety tests
• The officer also
administered a Horizontal Gaze Nystagmus (HGN) test
• SCRI researchers found
that they could determine whether a person was above or below a .10 blood alcohol
level 80% of the time.
FACTS: After the
defendant was stopped for DUI, he was given field sobriety tests on which he
did fair. The officer also administered a Horizontal Gaze Nystagmus (HGN) test
and estimated that defendant's blood alcohol content was .17. The intoxilyzer
showed a .163 reading. At the motion to suppress, the state presented testimony
from the SCRI project director which originally researched the HGN test.
SCRI researchers found
that they could determine whether a person was above or below a .10 blood
alcohol level 80% of the time. Finnish researchers had reached the same
results. The project director testified that HGN has been accepted by various
researchers, various police agencies and the National Highway Traffic Safety Administration.
The police officer who helped develop and standardize HGN testified about his
field experience with HGN and his work in the research on HGN. The officer
testified that HGN was particularly useful in detecting drivers who had over
.10 alcohol in their blood who would otherwise pass the field sobriety tests.
The Arizona officer who administers HGN training testified that experienced
drinkers with .13 or .14 reading could pass the other field sobriety tests and
evade arrest. He testified that to be certified for HGN the officer had to
perform 35 practice tests and then had to pass an exam where they must
determine the blood alcohol level of subjects within .02 four out of five
times.
The training officer also
testified that the officer must continue to use the test regularly in the field
and should be evaluated to make sure the officer maintains his proficiency. The
arresting officer testified that he was certified as an HGN specialist. The
arresting officer testified without HGN results, he did not think he had
probable cause to arrest the defendant. The trial court ruled that the HGN test
was not reliable under Frye v. United States and thus could not be used
as part of probable cause. Accordingly, the court dismissed the prosecution.
The STATE appealed this decision.
ISSUE: Did the trial
court err in excluding the HGN evidence?
RULING: Yes, "We
conclude that the record shows not only that the HGN is sufficiently reliable
to provide probable cause for arrest, but that with the proper foundation as to
the expertise of the officer administering it, testimony concerning the
administration of the test and its results is admissible at trial. The record
shows that the HGN test has gained general acceptance in the field in which it
belongs." The court went on to say that they were unable to rule on
whether the results of this particular HGN test would be admissible because the
only evidence about the officer's proficiency was his testimony that he was
certified. The court of appeals noted that the officer kept a log of when he
administered the test and said, "This log would be useful if it
demonstrated that (the arresting officer) was as proficient in the field as he
was on the examination." The order of dismissal is reversed and the case
is remanded for further proceedings.
Mr. Blake sought review
of the court of appeals opinion and it was granted by the Arizona Supreme
Court.
Is the HGN Test
Sufficiently Reliable?
ISSUES: Whether the HGN
test is sufficiently reliable to establish probable cause to arrest for
DWI
Whether HGN test results
are sufficiently reliable to be introduced in evidence at trial.
CONCLUSION: "We find
that the Horizontal Gaze Nystagmus test properly administered by a trained
police officer is sufficiently reliable to be a factor in establishing probable
cause to arrest a driver for violating A.R.S.28-692(B). We further find that
the Horizontal Gaze Nystagmus test satisfies the Frye test for
reliability and may be admitted in evidence to corroborate or attack, but not
to quantify, the chemical analysis of the accused's blood alcohol content. It
may not be used to establish the accused's level of blood alcohol in the
absence of a chemical analysis showing the proscribed level in the accused's
blood, breath or urine. In subsection (A) prosecutions it is admissible, as is
other evidence of defendant's behavior, to prove that he was under the
influence."
We approve the court of
appeals' opinion, as modified, vacate the trial court's dismissal of the Blake
prosecution for violation of A.R.S.28-792(B), and remand for proceedings not
inconsistent with this opinion.
People v. Loomis
• Arresting officer
attempted to testify to his opinion concerning the subject's BAC based solely
on the angle of onset of HGN
• Court held Officer was
not:
• Entitled to testify as
a lay or expert witness about HGN
• Formally or properly
trained in HGN
A detailed analysis of
the facts reviewed by the Supreme Court is contained in the opinion PEOPLE
vs. LOOMIS (California, 1984) 156 Cal. App. 3d 1, 203 Cal. Rptr. 767 (Cal.
Super. 1984).
The arresting officer
attempted to testify to his opinion concerning the subject's BAC, in
quantitative terms, based solely on the angle of onset of HGN. The subject had
refused to submit to a chemical test. The court held that the officer was not
entitled to testify as either a lay or expert witness about HGN, or to give his
opinion about the defendant's BAC. The court held that HGN is a new form of
scientific evidence that will be allowed only when there is a preliminary showing
of its general acceptance in the scientific community. Moreover, it was clear
from the officer's testimony that he had not been formally or properly trained
in HGN, and didn't really understand how the test is to be given.
State
v. Blake
• • First case decided at a State Supreme Court
• • HGN satisfies the Frye standards for evidence to
corroborate, or attack, the issue of a subject's impairment
• • Frye standards are those set by the U.S. Supreme
Court to govern the admissibility of "new" scientific evidence
STATE vs. BLAKE (Arizona,
1986) 718 P.2d 171 (Arizona, 1986); see also State vs. Superior Court of County
of Cochise, 149 Ariz 269, 718 P.2d 171, 60 ALR 4th, 1103.
This is the landmark
ruling on HGN because it was the first case decided at a State Supreme Court.
The Arizona Supreme Court found that HGN satisfies the Frye standards
for evidence to corroborate, or attack, the issue of a subject's
impairment.
The Frye standards
are those set by the U.S. Supreme Court to govern the admissibility of "new"
scientific evidence. In effect, the Arizona Supreme Court took judicial notice
of HGN, so that it is no longer necessary, in Arizona, to introduce expert
scientific testimony to secure the admissibility of HGN. However, the court did
set standards governing the training of officers who would be qualified to
testify about HGN, and the court explicitly ruled that HGN cannot be used to
establish BAC quantitatively in the absence of a chemical test.
Landmark Court Decisions
Relevant to the Admissibility of the SFSTs
Challenges to
admissibility based on:
• Scientific validity and
reliability
• Relationship of HGN to
specific BAC level
• Officer training,
experience, and application
The following cases
are landmark court decisions relevant to the admissibility of the SFSTs
including Horizontal Gaze Nystagmus.
• Challenges to the
admissibility have been based on:
• Scientific
validity and reliability. (See Blake case)
• Relationship of
HGN to specific BAC level. (See Loomis case)
• Officer training,
experience, and application. (See Murphy case, See Homan case, See Smith
case)
State
v. Murphy
Results of a HGN test
could be admitted into evidence at a DWI trial to prove intoxication of the
driver
• Not used to determine
specific BAC
• Officer did not have to
qualify as an expert witness because the observations were objective in nature
and the officer needed no special qualifications to be able to interpret the
results
STATE vs. MURPHY (451
N.W.2d 154 Iowa, 1990)
The court held that the
results of a HGN test could be admitted into evidence at a DWI trial to prove
the intoxication of the driver. (Not to be used to determine specific BAC
level.) The court considered HGN to be one of the SFST's officers administer
and in this case the officer was properly trained to administer the test. The
court felt that the officer did not have to qualify as an expert witness
because the observations were objective in nature and the officer needed no
special qualifications to be able to interpret the results.
State
v. Homan
SFSTs conducted in a
manner that departs from the methods established by the National Highway
Traffic Safety Administration (NHTSA) “are inherently unreliable”
STATE v. HOMAN (732
N.E.2d 952, OHIO 2000)
This significant State
Supreme Court case held that Standardized Field Sobriety Tests (SFSTs)
conducted in a manner that departs from the methods established by the National
Highway Traffic Safety Administration (NHTSA) “are inherently unreliable”. The
court determined that the administration of the SFSTs, including the One leg
Stand and Walk and Turn tests, must be performed in strict compliance with
the directives issued by NHTSA.
The court concluded that
because the arresting officer admitted to not having strictly complied with
established police procedure during the administration of the HGN and Walk and
Turn tests, the results of the SFSTs must be excluded. In contrast with other
court rulings, the HOMAN court found “it is well established that in field
sobriety testing even minor deviations from the standardized procedures can
severely bias the results.”
This decision was based
upon an older edition of this manual where an ambiguous phrase was strictly
interpreted by the court. The phrase in question only applied to the use of
SFSTs for training purposes.
Smith v. Wyoming State
Supreme Court:
• • Held a law enforcement officer may testify to the
results of field sobriety tests (including HGN) if officer has been adequately
trained in the administration and assessment of those field sobriety tests, and
conducted them in substantial accordance with that training
SMITH vs. WYOMING (11
P.3d 931 Wyoming, 2000)
The State Supreme Court
held a law enforcement officer may testify to the results of field sobriety
tests (including HGN) if it is shown that the officer has been adequately
trained in the administration and assessment of those field sobriety tests, and
conducted them in substantial accordance with that training. The court further
stated
“deficiencies in the
administration of the sobriety tests go to the weight accorded the evidence and
not to its admissibility.”
People v. McKown
• HGN testing satisfies
the Frye standard in Illinois
• HGN testing is one
facet of field sobriety
• The witness has been
adequately trained, and conducted assessment in accordance with the
training
• In conjunction with
other evidence, HGN may be used as a part of the police officer’s opinion that
the subject [was] under the influence and impaired”
PEOPLE v. MCKOWN,
(226 Ill. 2d 245 ILLINOIS 2007).
In February 2010, the
Illinois Supreme Court issued an opinion indicating that HGN satisfies the Frye
standard. This decision came upon a review of a fully litigated Frye hearing on
HGN at the trial court level. The Supreme Court upheld and adopted the findings
of the trial court, which are as follows: “(1) HGN testing satisfies the
Frye standard in Illinois; (2) HGN testing is but one facet of field sobriety
testing and is admissible as a factor to be considered by the trier of fact on
the issue of alcohol or drug impairment; (3) A proper foundation must include
that the witness has been adequately trained, has conducted testing and
assessment in accordance with the training, and that he administered the
particular test in accordance with his training and proper procedures;
(4)[Testimony regarding] HGN testing results should be limited to the
conclusion that a “failed” test suggests that the subject may have consumed
alcohol and may [have] be[en] under the influence. There should be no attempt
to correlate the test results with any particular blood-alcohol level or range
or level of intoxication; (5) In conjunction with other evidence, HGN may be
used as a part of the police officer’s opinion that the subject [was] under the
influence and impaired.” (Emphasis in original.)
People
v. McKown (Cont.)
The officer can testify
that based on the totality of the circumstances, including HGN, that (s)he
formed the opinion that the subject was under the influence of alcohol.
31
While HGN is admissible
at a trial for DUI, the officer will be required to testify to the proper
foundation. First, (s)he will have to testify regarding training and
experience. That training will have to comply with the NHTSA standards,
although whether that compliance is strict or substantial is unknown at this
point. Second, the officer will have to testify as to how (s)he conducted the
test on that particular occasion and will have had to have conducted the test
in accordance with NHTSA training and standards. Once the proper foundation is
met, the officer will be able to testify as to his or her observations and that
the results of the test indicated that the subject had been drinking and may be
impaired. Finally, the officer can testify that based on the totality of the
circumstances, including HGN, that (s)he formed the opinion that the subject
was under the influence of alcohol.
State v. Wilkes
Seizure Case
State v. Wilkes,
(756 N.W.2d 838 Iowa 2008)
Wilkes was not originally
looked at as a SFST case but rather a seizure case. However, at the urging of
the Iowa TSRP the court closely looked at the issue of SFSTs. Wilkes claimed
the State lacked probable cause to invoke implied consent pursuant to Iowa Code
section 32 1J.6. To support his argument, Wilkes argued that the officer improperly
administered the walk and turn and one leg stand tests. Even if true, any
irregularity with respect to the walk and turn and one leg stand tests has no
legal significance. The officer smelled the strong odor of alcohol on Wilkes’
breath, obtained a concession that he had been drinking, and performed the
horizontal gaze nystagmus (HGN) test. Based on this information, the officer
had an articulable suspicion to administer a preliminary breath test (PBT)
pursuant to Iowa Code section 321J.5(1)(a). The results of the PBT constituted
probable cause to invoke implied consent. Iowa Code § 321J.6(1)(d); State v.
Horton, 625 N.W.2d 362, 364 (Iowa 2001).
In determining grounds to
arrest and/or invoke implied consent, the Court reviewed and considered the evidentiary
value of all circumstances, including the defendant's statements, officer's
observations of smell of alcohol, and SFST results even where two tests of the
three SFSTs may not have been administered with textbook precision.
TO SUMMARIZE:
The prevailing trend in
court is to accept HGN as evidence of impairment, provided the proper
scientific foundation is laid. However, most courts consistently reject
any attempt to derive a quantitative estimate of BAC from HGN. Additionally,
officers should recognize the relevance of administering the Standardized Field
Sobriety Tests in accordance with the NHTSA/IACP guidelines and not
significantly deviate from the established administrative procedures.
Sessionent
QUESTIONS?
ety Test
Course 3 38
Test your
Knowledge
INSTRUCTIONS: Complete
the following sentences.
1. The elements of
the basic DWI law are:
2. If DWI is a criminal
offense, the standard of proof is
3. The purpose of the
implied consent law is
4. Under the implied
consent law, chemical test evidence is evidence.
5. The illegal per se law
makes it unlawful to
6. The PBT law permits a
police officer to request a driver suspected of DWI to
7. PBT results are used
to assist in determining .
8. The landmark Supreme
Court case regarding HGN was .
1.
• O’Leary
2.
• Paquette
3.
• Blake
4.
• Overton
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