Monday, March 2, 2015

Field Sobriety Tests: How Reliable Are They?

Aside from Intoxilyzer or blood tests, one of the commonly-used means of Oklahoma police to assess whether an Oklahoma driver is under the influence of drugs or alcohol are field sobriety tests. Officers typically have a suspected drunk driver perform a battery of sobriety tests; failing one or more of them can not only lead to an arrest for DUI, it can possibly also be used by the prosecution as evidence at trial.

 

Field sobriety tests are not, however, foolproof as indicators of intoxication. To begin with, they are limited in their evidentiary value. None of these tests can be used as a correlation to a specific blood alcohol content level, because they may only indicate intoxication (and not necessarily alcohol intoxication). Moreover, even a test that may seem to suggest intoxication might not hold up in court if reasonable doubt can be cast on the way that police officer conducted it.

 

Precision is key. Just as an Intoxilyzer must be properly calibrated for its results to hold up in court, field sobriety tests must be administered correctly to be valid. Even seemingly minor mistakes by the officer during the testing can open the door to challenging the test results, and a successful challenge can make the difference between a conviction for DUI or an acquittal.

 

The National Highway Transportation Safety Administration (NHTSA) establishes the requirements to properly administer field sobriety tests. These guidelines are quite precise; the inadvertent failure of a police officer to follow them properly is a definite possibility.

 

As one example, consider the “horizontal gaze nystagmus” test. This test involves instructing the test subject and then having the test subject follow the track of a stimulus object, such as a flashlight, with his or her eyes while holding still. In theory the test sounds simple to administer, but there are several ways that the police officer can commit errors that invalidate it.

 

The test itself consists of four phases and 14 passes of the stimulus object. The NHTSA requirements are specific on how the test subject is to be positioned, how far from his or her nose the stimulus object should be held, how quickly it should be moved, the maximum angle of deviation that should be used, and the minimum time that should be spent conducting the test; if it takes less than 86 seconds then it is suspect because the officer has performed it too quickly, which in turn shows that one or more of the steps was administered correctly.

 

For anyone accused of DUI in Oklahoma based at least in part on the results of field sobriety tests, what is important to know is that not only is it imperative that the police officer who administered the test followed the correct procedure with exactitude, it is also essential that the Oklahoma DUI defense attorney also be intimately familiar with the details of the test protocols. Only an experienced DUI attorney who has carefully studied the NHTSA requirements for how a valid test should be given will know what to look for when it comes to identifying ways in which the officer may have made a mistake.  The DUI Attorneys at the Hunsucker Legal Group have received the same field sobriety testing training as the police officer on the street and are versed in defending Oklahoma drivers accused of DUI or APC.  Most often, they know the Field Sobriety Manual better than the arresting officer. 

 John Hunsucker

 

Sunday, March 1, 2015

Good Article About Cost of Reinstating Oklahoma Driver's License

Nice quote from me in today's Daily Oklahoman.  Oklahoma Watch is doing a series about the high cost offenders face when getting out of prison and the author called me to discuss the cost of license reinstatement.  You can't access it online through the Daily Oklahoman's website but the same story is on Oklahoma Watch's website.  http://oklahomawatch.org/2015/02/23/for-released-offenders-a-steep-price-to-drive-again/

John Hunsucker
Oklahoma DUI Lawyer

Monday, February 23, 2015

Can the DUI Flyer Prevent Arrest?


Can a piece of paper get you past an Oklahoma DUI sobriety checkpoint?

 

Anyone familiar with the game “Monopoly” – and many people who are not – recognize the term, "get out of jail free card." The idea of a quick and easy way out of a potentially complicated situation always has an allure, in real life as well as in a game. In that vein, an attorney in another state has devised a card that will supposedly allow drivers to get past sobriety checkpoints without having to say a word, or in many cases even rolling down their windows.

 

DUI Sobriety checkpoints are legal in the state of Oklahoma. These checkpoints constitute an exception to the general rule that a police officer must have probable cause to stop a driver for suspicion of drunk driving, and are permissible as long as long as they meet the requirements of a legal balancing test that weighs the individual’s rights against unreasonable searches and seizures against the public interest in keeping the roads safe from drunk drivers.

 

Most of the time this balancing of the individual’s rights against the broader public interest will not result in unjust arrests at a sobriety checkpoint, and according to the web site for the attorney offering the “Fair DUI Flyer” it is intended not so much for drunk drivers as for “liberty activists” and people who are at risk of being arrested for DUI (that is, people who have had one or more alcoholic beverages or who have taken certain medicines or drugs before getting behind the wheel, but who are still sober).

 

Basically, the idea is to hold up to the driver’s side window a flyer specific to the state that the driver is in, along with documentation such as a driver’s license, vehicle registration and proof of current insurance. The flyer’s reverse side has instructions for the driver, the most important of which (and which applies to any state, including Oklahoma) is to exercise his or her right to remain silent. Used correctly, the flyer’s issuer claims that it will help to avoid needless arrests at sobriety checkpoints.

 

At present, there appears to be no “Fair DUI Flyer” for use in Oklahoma. And whether it is prudent to rely solely on a piece of paper to get through a sobriety checkpoint can be subject to debate: police officers may take the tactic as a challenge, or worse as antagonistic behavior, and neither of those approaches is ordinarily advisable as they can lead to more aggressive conduct on the part of the police.

 

Still, aside from not talking unnecessarily, some of the advice found on the flyers can be helpful no matter where you are, such as obeying lawful orders that a police officer gives you, and to never physically resist the police.  In Oklahoma, the police have the right to ask you to step out of the vehicle.

 

If you want to learn more about DUI stops in general, our Oklahoma DUI Defense Website contains a wealth of free information for you, including ways to contact us if you have specific questions or need to schedule an appointment for an initial consultation.

 

 


 


 


 
John Hunsucker
Oklahoma DUI Attorney

Oklahoma Criminal Defense Lawyers

Friday, January 30, 2015

Fine line between presenting evidence and being inflammatory

Interesting article today in the American Bar Association Journal about the prosecutor's use of 250 powerpoint slides in his closing.  The Washington Supreme Court overturned the conviction stating the presentation amounted to “egregious misconduct” during the trial of Odies Walker.

The powerpoint presentation included over one hundred slides with the caption “defendant Walker guilty of premeditated murder.”

“Closing argument provides an opportunity to draw the jury’s attention to the evidence presented, but it does not give a prosecutor the right to present altered versions of admitted evidence to support the state’s theory of the case, to present derogatory depictions of the defendant, or to express personal opinions on the defendant’s guilt,” the opinion said.

What is interesting is the quote from the prosecutor stating that the evidence was overwhelming and that he plans on asking the US Supreme Court to review.  If the evidence was overwhelming...why was it necessary to resort to this type of prosecutorial misconduct?  The evidence should speak for itself.  The other issue is that this prosecutor just doesn't get it.  It doesn't matter if the guilt is overwhelming...he still has to do his job correctly and ethically.  The ends DO NOT justify the means if the result is an erosion of our judicial system to the point that we do not need evidence...just the prosecutor's opinion.

Here is link to the article:

http://www.abajournal.com/news/article/prosecutors_powerpoint_closing_leads_to_overturned_conviction/?utm_campaign=weekly_email&utm_source=maestro&utm_medium=email&job_id=150128BZ

Thursday, January 8, 2015

Great wins today for Hunsucker Legal Group

The Hunsucker Legal Group had a great day today. Nicholas Lee had a fantastic win with a complete dismissal of a DUI charge against our client. Client was arrested after driving out of the jurisdiction of the police officer. State argued "fresh pursuit doctrine" applied to misdemeanors. We argued it only applies to felonies and the Judge agreed with us. This is a case where we had already won... the client's license back at the DPS level. This means that the client did not have to pay any court fees or any license related fees.

Douglas Baxter was able to get a bond reduction today in a case where the bond was set at a half million dollars. Doug was successful in getting reduced to $75,000 which should allow client to make bond.

Our Driver's License Attorney,Brian Morton, only had one HLG hearing today at the Department of Public Safety. After Brian's cross examination, it was clear that they were lacking a necessary witness so the case was set aside which will result in our client receiving her license back.

The Hunsucker Legal Group takes pride in having the best DUI Defense lawyers in the state and we strive for these results on a daily basis for every one of our clients. Visit www.OKDUI.com for more information.

Nice Win for Nick Lee

Our Senior Associate Nicholas Lee had a nice win for our client today.  HLG was representing a Colorado citizen that was arrested for DUI in Woodward, OK.  After we obtained the patrol video of the stop as well as the other discovery, Nick sent the video to the prosecutor asking for outright dismissal as we didn't think there was probable cause to arrest our client for a DUI.  The prosecutor didn't agree and basically told us to take the deal or go to trial.  Preparing for trial, Nick asked for a evidentiary hearing on the stop so we could argue for the case to be dismissed for lack of probable cause for arrest. 


Today, Nick shows up ready and armed with the video and case law for the motion hearings.  After further discussions and review, the prosecutor dismissed the DUI against our client.  Congrats to Nick and our client.

This case involved the use of a portable breath testing device and Field Sobriety Tests of which Nick has received extensive training in the use (or more commonly, the misuse) of these testing devices.

Wednesday, November 5, 2014

Police Unions complain about new technology

We give you a gun and a badge along with the authority to place people in jail and you complain that technology that makes sure you are following the law while on duty and holding you accountable is "intrusive". Employers have the right to know what their employees are doing on the clock and also how their company vehicles and other equipment is being used. Why is it any different just because you are a police officer?


http://thefreethoughtproject.com/police-reject-ford-cars-track-driving-habits-safety/

John Hunsucker
Oklahoma DUI Attorney