The Standardized DWI Arrest

As winter gives way to spring in lovely Ithaca I am reminded of the beauty of nature. The birds are coming back, the croci (crocuses) are beginning to emerge, and I hope we have seen the last snow of winter. It has been a mild 2010. Our friends in the big cities (Philly and NYC) got hit this year. We had hardly anything (relatively).

The wonderful thing that nature reminds me every year is that people like flowers or snowflakes are unique. Your fingerprints, DNA, and combination of traits is unlike any other the world will ever see. Yet we (as a society) like to "standardize" everything. So what gets mass produced, marketed, and sold is the average. What is played again and again is the popular song. Popular doesn't mean good, it means what the common majority likes.

So Larry, what the hell does this have to do with DWI defense? Excellent question!

Law enforcement and the government builds their case evidence (proof) using:

1. Standardized administration procedures (in both the SFSTs and Breath test)

2. Standardized clues

3. Standardized testing criteria

A DWI arrest is usually based upon the officer giving you tests at roadside. His observations, and your performance will support his decision to arrest. He feels he has probable cause (based upon his proof) to make an arrest for driving while intoxicated.

The SFSTs (Standardized Field Sobriety Tests) are:

1. A series of three evaluations that have to be administered in a standardized manner by law enforcement. They are the walk and turn, one leg stand, and HGN (horizontal gaze nystagmus).

2. They have been created/chosen/selected and established by Government Authority (National Highway Traffic Safety Administration) as a RULE.

3. This RULE is for measuring the loss of mental and physical faculties (impaired function).

But are they accurate? In other words, do they conform exactly to truth or a standard?

And are they precise? Do they strictly conform to a set pattern, standard, or convention?

The first problem with any testing following a car stop is the officer has NO BASELINE.

He or she doesn't know YOUR normal. He doesn't know your physical and/or mental limitations. This is where standardized tests don't account for YOUR unique characteristics. YOUR past knee, back, shoulder, hip, neck problems. YOUR inner ear infection, cold, or flu.

A second problem with testing is that it is usually done outside. The conditions are usually not ideal. Weather is one issue. How many winter DWI cases with snow, ice, and freezing wind as our backdrop? How many motorists are without coats, jackets, or proper (appropriate) attire for being outside at 1:00AM in Ithaca, NY in December? What of the road conditions? What area were you forced to use to perform these balance, coordination, and mental exercises in the dark and in the middle of the night?

A third problem with testing is that the officer does not always follow procedures or he complies haphazardly. Standardized testing must be done in a set way and by following very specific protocols (rules/guidelines). Often officers will refuse to acknowledge they even "measured" anything. They prefer the word "estimated" or "scored" because those terms have less precise connotations. Did the officer leave "all" his emergency lights on when giving the tests? Did he communicate what he wanted from you clearly?

A fourth problem with testing is footwear. In the summer and spring the issue is usually flip flops. In the winter it is usually boots. High heels are always an issue when it comes to having to walk on imaginary lines, and balance/stand on one leg.

The breath test also has protocols and guidelines. It also needs to be "administered" properly. Sometimes law enforcement doesn't follow all the rules. Adherence to the rulebook is not always forefront in their minds. Not being being strict in compliance can lead to inaccurate results.

And inaccurate results can lead to wrongful DWI convictions.