[ARCHIVED THREAD] - Question for the DUI gurus... (Page 1 of 2)
Posted: 6/26/2005 5:28:27 AM EDT
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Will you arrest when the suspect blows well over the .08 BAC but performs well on the SFST's? Say someone did very well on the FST's, but blows a .12 or higher, are you going to let him walk, or arrest him for DUI? I've run into this scenario a couple times recently with experianced drinkers who have rehearsed their FSTs. For LEO's in Cali specifically. In the above scenario you clearly have 23152(b), but not 23152(a). Ive booked to just 23152(a) many times, and also to (a) & (b). But I have never seen someone booked for just (b), is it even possible under the CVC? |
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I know I'm just a civilian, but if that guy does something stupid after you leave, it's your ass... Lawyer: "Mr ar15fan, did you on the night in question, register Mr. Alcoholic a .12 and then let him go?" Ar15fan: "He passed all his FST's." Lawyer: "Sir answer the question." My un-asked for .02. jim |
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6/6 HGN is a hook up. Your question also assumes the PBT is accurate...................... If they do well on SFST's, ie under the matrix for arrest, I would be hard pressed to arrest, but someone is at a minimum being given a choice, "I can arrest you or give you a ride home, which would you rather do?" I was in booking, a colllege age looking guy was in the pre-book area, for attacking his roommate. I was looking out there, had no clue he was under the influence. The booking Deputy told me he could smell odor, heard a bit of slurring, guesstimated .16-.18......................... .404 on a pbt, took a second pbt, different pbt................... same |
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snagged, bagged and tagged +1 on the hardcore drinkers, they practice and practice...they still have problems multi tasking - have to watch them closely, I've noticed that they always try to slow down and typically ask more than 2x, I had one DUI tell me that he never heard of one test I use before then said on tape "I never practiced that one". |
I have heard that other states are much more progressive with HGN than Cali. I have heard some state will even allow an arrest based on HGN & PAS alone. Here the DA wants HGN, Walk & Turn, Rhomberg and One leg stand, at least. Most have quit doing finger to nose and the DA has not had a problem with that. I dont do much DUI enforcment, but might go for my MADD award this year after I rotate out of my current assignment, assuming I go to swings or mids. |
That is exactly what he means. Three indicators of impairment times two eyes equals six. If all six are showing, he hooks them up. As for me, if I get four out of six, I'll hook them up. Haven't been wrong yet. And before anyone asks, ten years of experience and a couple of MADD awards. |
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Six clues on HGN is pretty much it around here. We can't use PBTs so a preliminary breath test is a moot point. 6/6 (each clue in both eyes) is generally a pretty solid arrest. The rest of the FSTs are just kind of the icing, as 6 clues (or even four) are a pretty good predictor of intoxication. Now when they won't do ANY FSTs, then you have a dilemma, as there is no implied consent for FSTs in my state, and without gross intoxication or lots of observed, consistent driving behavior, you have a difficult situation. Please don't ask me why I know so much about this... I have been the pointman in a mandatory, agency-wide discussion about DWI standards lately (part development, part penance). Our FST instructors hold that 4 clues on HGN, by itself, is enough to prove over 0.08 for about 90% of the population. The other FSTs are still important, as are your other observations and field interviews, but HGN pretty much does it all. Individual officers may have different standards, but we wanted to make sure that folks had a good idea of what the science says, what the agency says, and what the prosecutors will accept charges on, and hopefully get them all to converge. I had one yesterday, stopped him for driving on the wrong side on a quiet residential street. He admitted to drinking (and we could see the remains) 4 and a half beers. He had four clues on HGN (but was botching the last couple badly, so it was hard to tell if there was onset prior to 45 degrees or not) and did fairly well on the FSTs, only tossing out a couple of scored clues, though you could tell that he was practiced with both tasks. He blew, which is rare anymore, and he came in at .022, when both myself and my translator/backup officer thought he was going to be right around the limit. HGN really is one of the best tools on this. Drunks can get GOOD at FSTs, and I bet most officers would probably do well on many FSTs, if for no other reason than the fact that they have demonstrated them so many hundreds of times that doing them drunk would not be as effective of a predictor of intoxication. To answer your other question, any time they blow over the per se limit of 0.08, they are automatically DWI in my state, and they are going. I'll throw out another one. What about, with seemingly increasing trends in polydrug use, the cases where they have inconsistent results across the board (6 clues and a low breath sample) What are your agencies doing on DWI involving drugs arrests? It would be simple if it was just drugs, or just alcohol, but we are increasingly seeing folks on some drugs and some alcohol, which really confuses matters if they aren't grossly intoxicated. What about legal, prescribed drugs and no alcohol? Or the same with a little alcohol? What do you do? |
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6/6 HGN w/o any other clue would be a hook up. 4/6 HGN + 2/8 W+T is the book defintion. It gets far more difficult when alc in combination with a drug, or drugs alone are in play. We do SFST HGN W+T 1 Leg Stand PBT Drug SFST Rhomberg Balance Finger to Nose Not to mention "pre-tests" to establish the R-A-S to do SFTS's alphabet recite etc. ' And alway the final question, usually when the PBT is calculating............. "Do you think you should be driving with the amount you had to drink tonight?" |
| I've arrested for poydrug combo alcohol & Rx meds, but never Rx meds alone. Our crime lab will screen for drugs automatically if the blood work comes back under a .08. they check for stuff like Benzos, tranqs/depressants, muscle relaxants, narco-analgesics, ect.. |
4/6 HGN is a failure everywhere. It's a NHTSA test. If you get someone that passes HGN, WAT and OLS, my question is why would you administer a PBT? ETA... reason being is that unless you completed a waiting period after drinking but prior to the PBT, there's a chance for mouth alcohol to give a false high BAC reading, or the guy's burping alot and bringing stomach gas into the mouth. Any number of reasons for a PBT to read higher than what BAC really is. Just gotta know what to look out for and accomodate for it. |
Are you trained to use a PBT? Nextly, if you stop a person who was driving, and do the usual traffic stop stuff, then SFST's, then a PBT, how much time has elasped since he was drinking? Next, mouth alcohol isn't going to add a small increase to a PBT's reading. Mouth alcohol, if present, will show a WILD BAC. Like .60. I did a little experiment, took some Scope mouthwash, gargled, then wited 1-2 minutes. PBT'd myself, was a .25. Mind you I was sober. As soon as the PBT cleared I PBT'ed myelf again .04. Then again, .00 It was probably 5-7 minutes from Scope to .00 PBT. I didn't do the PBT immediately because I didn't want to send a massive amount of mouth alc. into the PBT. |
Yes, I am trained in such things. I am familiar with all the above. Mouth alcohol will not ALWAYS show a WILD BAC. If you have a lot of fresh mouth alcohol yes it will read high. However between the .60 example you give, and when mouth alcohol is gone, you will get gradually decreasing results that will level off at that the subject's actual BAC is. I'm not sayin it takes long, just that you have to have observed them for some time to verify that mouth alcohol won't be an issue. Some guys I've run into in my career, though, had a habit of smelling alcohol on the driver, then whipping out their PBT right at the driver's window, within the first 60 seconds of the traffic stop. They determine if they're going to get the person out of the car to do SFST's then. That is the wrong way to do it. |
You would turn a drunk loose on the road? |
You've twisted my words-I'm saying if I can't tell to look at him and use common sense (how were drunks arrested before all this new wave crap?) then in my mind I'm not turning a drunk loose. Some of the high-and-tight new breed want to arrest a working class guy that drank 3 beers. I don't let SADD or MADD or any other "focus" group dictate to me how my job's done/ |
Thats one way to look at it. DUI laws are not about drunk, or intoxicated driving. They are about Impaired driving and you are impaired long before you are drunk. |
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We don't have field sobriety tests (motor skills ones) up here. I can't remember the exact reason but it's a violation of something. If an officer suspects a driver has been drinking based on observations they can demand a breath sample on site. Refusual to provide it is subject to a criminal code charge. If the suspect complies and blows a warning (bordering the legal limit) his drivers license is suspended for 24 hours and he is driven home. Whether the car is towed is up to the officer but most tow it to prevent the suspect from returning later to get it. If the suspect fails the road side test then he is taken back to the dept for the breathalyzer which is administered twice with in a specific time period. A guilty conviction nets them a $1000 + fine and 12 month license suspension. 2nd offences usually are a $2000+ fine and 24 months. 3rd time is usually the charm. welcome to the big house. The fine is the least of their problems. The dept of MV gives a driver unmitigated hell before they issue them a new drivers license. (They have to be retested) and the insurance company bends them over the table for a prostrate exam if ya know what I mean... 
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How about let THIS dictate how you do you job? Proven tactics, techniques, questions and tests, developed over many years of DUI investigation and training that NHTSA endorses, and is taught to most if not all new police officers, and many veterans who attend DUI update classes? I don't know about you, but nearly every DUI I ever arrested only had "two beers" I'm not going to let some lazy R.O.D.'er dictate to me how MY job's done. |
You're gonna get crucified for this. (I happen to agree with you) |
In case you missed this post earlier I was in booking, a colllege age looking guy was in the pre-book area, for attacking his roommate. I was looking out there, had no clue he was under the influence. The booking Deputy told me he could smell odor, heard a bit of slurring, guesstimated .16-.18......................... .404 on a pbt, took a second pbt, different pbt................... same Casual observation can often spot people that are "drunk", it misses alcoholics that have learned to mask the effects of alcohol. Next, SFST's give standardized clues, testing, etc. so it i easier to describe the test results, as well as being able to say the tests were validated. As opposed to pick up change, looked drunk, and divining rod, battery of tests you apparently advocate. |
I sort of agree with you regarding the new age science stuff - and my background is mechanical engineering, I should be mr. techno. However, I'm 6'4"/240 and 3 beers is enough to totally fubar my driving. Heck, I can feel the effects of 1 beer on my balance if I'm riding my motorcycle. At a minimum, an .06-.08 is getting a taxi.... Brian |
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You should really consider doing blood only. It is well known in the legal community what many fixed station intoxilyzers (typical Intoxilyzer 5000) do when exposed to cell phones and radios. If you are using portable breath testers, God help you. They can't be mentioned in court around here without a mistrial. Our local agencies have trained parts of their field staff as phlebotomists, so no need to go to a hospital for a blood draw. If you can IM agency info. and a business phone, I can try to have a local expert call you about this. I observed HGN training of a large group, recently. It is a great tool, but most good mechanics don't have only one tool in their toolbox......... The success rate was pretty dismal. |
I've had officers in my agency use the same line on me (I'm a DRE). As a rule these same officers were either a)scared of testifying in court b)scared of the paperwork involved in a DWI arrest c) too lazy to do their job d) alcoholics themselves or a combination of the 4. I sincerely hope that one of the "working guys" that you let go because of your refusal to learn/use an objective/scientifically proven methd of detecting impairment never hits another car and kills/injures someone else. And if you do, I really hope you have good insurance to cover you in the lawsuit that follows. I can just see the deposition for the civil case: Attorney: Officer when you had the killer perform the SFSTs did he pass them? Ryann: Hell, counselor I can just look at a man and tell if he's drunk or not. I don't need none of them new fangled tests you're talking about Attorney: So you didn't have the defendant perform the SFSTs? Ryann: That's what I'm saying. I just looked him up and down and right in the eye. He looked fine to me. He even told me that he had only had three beers. That ain't nothing. Attorney: Then how do you explain that when the defendant left you, travelled three blocks, ran a red light, struck Mrs. X's car, killing her 10 year old daughter and crippling Mrs. X, that his BAC, taken by blood in the hospital was 0.16? Do you think that quite possibly that if you had bothered to use the SFSTs, a medically and scientifically verified method to test for intoxication unlike your "eyeball", to test the defendant you might have been able to tell that the defendant was intoxicated and should not have been driving? Therefore enabling you to make an arrest and prevent this tragedy? Ryann: Uhhhhhhhh....... Yup, a civil jury would love you. And as far as the SFSTs (including HGN) being "new wave" and "new age" I guess you don't realize that the research into SFSTs and HGN has been around since 1975 and they have been used as an LE tool since 1981 (don't take of your shoes...that's 24 years since acceptance and 30 years since research began). 24 years!! Yup, I guess that qualifies as "new age" and "new wave". Let's not mention all the scientific research that has validated the SFSTs. Are you guys still carrying wheel guns? I mean after all, autos haven't been accepted in LE all that long either. And how about those new fangled walkie talkies? Aren't those the greatest? |
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When I used to work downtown beat patrol, i had a LOT of homeless drunks on my beat. They would talk to, walk good, could do about all you wanted them to. Put them on the alco and they'd blow high enough that a "normal" person would be staggering drunk. Yeah, I'd hook em up in your example. GR |
| Not to pile on but, using the 'new age science' argument is pretty scary. If you aren't using all of the tools availavle to determine guilt/innocense then you are doing everyone a dis-service. Using that logic we should all still be riding horses and using call boxes. |
Well said. Thanks for the backup! |
Great point of view here. I'ma DRE also and was thinking the same thing. I do all 3 of the standardized FST's but make 85% of my arrest decisions on HGN. The first scenario by AR15fan would be a direct deposit if it wasmy stop, no questions asked. |
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It come down to subjective evidence versus objective evidence. Subjective evidence are the things that any normal person could use to explain to another person that a driver was intoxicated. Basically, the obvious, incontrovertable facts that you saw that would lead a reasonable person, like a member of a jury, that a person was drunk. Objective evidence are chemical tests and/or your trained and scientifically validated observations, based on your training, which has been proven countless times in court and is held to be evidence of intoxication by appellate courts in every state. Those validated observations have been established through rigorous, peer-reveiw established research and by findings of appellate courts in all states, to be an accurate predictor of BAC and/or impairment. One can make a provable DWI case using either subjective or objective evidence, and most cases use a combination of the two. Objective evidence is almost always better in court. A case with NO objective evidence and little subjective evidence, or subjective evidence that can be explained away by a good defense attorney, is not prosecutable in many jurisdictions in this country. A DWI with only objective evidence is almost always prosecutable. For example, we routinely prosecute DWI collisions where one party is transported to the hospital, and the only observations were an odor of alcoholic beverages coming from the defendant (which is enough for a subpoena of the blood routinely drawn at the hospital) and the defendant's BAC from that blood draw. Lacking chemical tests, the officer's scienticially validated (and this science is about 30 years old and is in no way "new," "new age" or "junk") is actual PROOF (hard evidence) to the court that the offense was committed. The subjective observations aren't proof, but can help paint a picture. If the lawyers are good enough, they can get convictions based on that picture, without any proof, but it is definitely much harder. DWI is one of the most litigated criminal charges, for the simple reason that while the average citizen does not typically have a "bad" night and decide to burglarize a building or sell dope, an average citizen can get drunk and make a poor decision to get behind the wheel. There is significant case law on DWI, I am certain more than pretty much any other crime. I am sure that there are officers who have a 100% conviction rate on DWIs without ever using any scientific evidence, somewhere in the country. They are the exception. The rest of us use the scientifically validated SFSTs. |
Great post!
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An officer's an ROD if he doesn't think the only reason he's a cop is to put DWI's in jail? I've been a cop 26 years, the last 20 on a large urban police department. If I can't tell a drunk driver by now, I need to quit. Did it ever occur to you that not all officers are so self righteous that they want to burn every borderline (operative word BORDERLINE)working class guy when theres oh, dope houses, stolen occupied cars, armed robberies and all sorts of nefarious deeds being done on the officer's beat? I've never attended any of those DWI training classes,hell I've not even certified to run radar-and I don't feel either incomplete or Retired on Duty. It's been my observation that many of the younger high-and-tight marine wannabes seek DWI's because its easy, they're sure to get a pat on the head by some rookie sergeant, and its a safer arrest than patrolling alleys and possibly interupting a rape in progress. YMMV. |
You're right, I did. F--- 'em 
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As far as "borderline" drunks go, if you hadn't been so busy looking down your nose at the officers who do DWIs you might have known that the SFSTs help officers determine those who need to go to jail and those who can make it home. You might also know that research from Texas A&M also shows that impairment actually begins at 0.01.....so 0.08 is actually pretty generous. Did it ever occur to you that there are officers who take such pride in their chosen profession that they want to be able to do all facets of the job well and are willing to learn the tactics and techniques to do so? They don't pick and choose what parts of the job they will do, they want to be able to do it all and be good at it. I do feel that there is a time and a place for DWI enforcement and if that is all a beat officer is doing then it is incumbent upon the older officers that work around him/her to show them how to work a beat. An officer should be spending his/her time hitting back streets/alleys/parking lots but too much of the time I see officers using that as an excuse for doing nothing. It's also real easy to hide in an alley and read a book or otherwise waste time instead of getting in the streets making traffic stops and putting all kinds of bad guys in jail. And as far as DWI's being easy....ever been to trial on one in the past 10 years? |
You are kind of making my point. The scientific tests aren't out to get the guy who had "three beers." Three beers isn't going to put anyone's BAC over 0.08 unless they are a 90-pound woman who hasn't eaten in a couple of days, and the beers are all within an hour, and you get them before an Intox operator within about 45 minutes, including the 20 minute mandatory observation period in Texas. The scientific tests allow you to determine if someone is over 0.08, which is the per se limit in Texas. I have had "curb to curb" DWIs blow in the 0.12-0.14 range. As I posted earlier, I had one last weekend (in the daytime) who we felt might be borderline, and he blew a 0.22. Personally, I wouldn't drive at a 0.05, and think anyone who does is an idiot (actually, I won't drive if I have been drinking at all). Impairment is completely independent of BAC, anyhow, under Texas Law. The per se limit is merely a point where the Legislature has decided that if you are OVER that point, then you are automatically DWI. You can be DWI and under the limit, and with polydrug use this is becoming more and more prevalent, where the synergistic effect of drugs and alcohol can equate to a low BAC but still an extremely intoxicated driver. Scientifically validated training goes a long way to articualting this in reports and proving it in court. The SFSTs are a powerful tool for presenting evidence in court to obtain a DWI conviction. Without the person being "falling-down" drunk, you are going to have a hard time getting convictions without SFSTs or chemical tests, and most drivers in Texas refuse tests. If you are declining to arrest DWIs because they are not "falling-down drunk," then you are not doing your job. Deciding that you are not going to make DWI arrests so that you can concentrate on "real" crime is a rationalization and a cop-out. If your jursidiction is like most in Texas, then you have more people killed by DWI drivers than you do by Murder each year. Each valid DWI arrest you make is a potential Intoxication Manslaughter averted. In our agency (and most in the state anymore), ALL officers are required to obtain SFST training, and there are periodic, mandatory updates. I strongly suggest you attend an SFST class. You would probably be shocked at what you have missed over the years. |
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"Did it ever occur to you that there are officers who take such pride in their chosen profession that they want to be able to do all facets of the job well and are willing to learn the tactics and techniques to do so? They don't pick and choose what parts of the job they will do, they want to be able to do it all and be good at it....olnacl You imply that I have no pride in my work because I don't think DWI's are the end all reason for being. I wouldn't have lasted this long with a spotless record if I fit your description. I have nothing to prove to you or anyone else. Use all your high tech ju-ju that you need to make all your little DWI arrests; I find it sad that science has overtaken common sense and discretion in my "chosen profession." Luckily, I'm in the sunset years, and when I'm bragging at the old folk's home about all my police exploits, it won't be waxing wistfully over the borderline DWI arrests I made. I'll be showing off my multiple scars that I've earned fighting street criminals. YMMV |
No, I am saying that the officers that you are putting down are also doing good job and using all of the tools available to them. Youare the one implying that offices who use SFSTs to make DWI arrests are not good officers and all they do is make "little arrests". I am sorry that you have become so bitter in your old age that you can't see that and most of the officers I work with (myself included) would rather make the "big bust" then a DWI arrest but we also realize that the little things need doing also. Good luck in retirement. Have fun boring people with your war stories. I plan on retiring, traveling and not letting anyone know what I used to do for a living. I'm well past the stage where I feel the need to try and impress people with stories of my past exploits, but I guess others never do get past that. |
Don't disagree with blood testing at all. Why back in my day thats all we had available  We are using the Datamaster CDM, it has a RFI detection built in so the operator knows to shut off his radio. We have only found one radio frequency that sets off the RFI warning. We've been comparing results from the datamaster to blood tests and they are very accurate. As far as not arresting a DUI because they are not 'falling-down-drunk' is an excuse not a reason. I hope that the drunk that is allowed to drive away doesn't kill a family. |