Previously we discussed how to beat the UBAL theory of drunk driving by Beating a Breath or Blood Alcohol Test. However, in addition to the “per se” or UBAL charge, a Michigan DUI can also be based on the alternative theory of OUIL (Operating Under the Influence of Liquor). This theory is typically based primarily on the roadside investigation. This means that the “reliability” of the observations made by the police officer are of paramount importance in determining the issue of guilt or innocence.
The majority of Michigan’s police officers have training based on the National Highway Safety Administration’s Standardized Field Sobriety Test Program. This three day course includes training in the three phases of a DUI investigation. These include:
Phase One: Vehicle in Motion – this phase consists of the initial observations of the vehicle in operation, the stop decision and the observation of the stop. Thus, once the stop command has been given, the officer must closely observe the vehicle for possible evidence of the influence of alcohol.
Phase Two: Personal Contact – this phase consists of the face-to-face observation and interview of the driver while still in the vehicle, the decision to ask the driver to exit and observation of the exit. The interview/observation of the driver begins as soon as the suspect vehicle and patrol vehicle have come to a complete stop and continues through the officer’s approach. It includes all conversations until the officer asks the driver to exit the car. The face-to-face contact allows the officer to use three senses, including smell (odor of alcohol or cover up odor), sight (eyes, face and clothing) and hearing (manner of speech, answers given).
Pre-Arrest Screening: Standardized Field Sobriety Tests – this phase includes structured, formal “psychophysical testing” and preliminary breath testing and culminates in the arrest/no arrest decision. The most significant psychophysical tests are the standardized field sobriety tests administered at roadside. These tests are the one-leg stand, the walk-and-turn, and the horizontal gaze nystagmus (HGN).
Although most of Michigan’s law enforcement have been trained according to the NHTSA/SFST protocol, virtually none of them follow it; at least not to the letter of their training. This is a problem because the NHTSA Manual at VIII-21 requires that the SFSTs be interpreted only based on the predetermined “clues.” Otherwise, they do not retain the validity that NHTSA assigns to them. NHTSA Manual at VIII-8, 9, 10, 11, 12.
As NHTSA explains:
[I]t is also necessary to emphasize one final and major point. THIS VALIDATION APPLIES ONLY WHEN THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER; AND ONLY WHEN THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT’S PERFORMANCE; AND ONLY WHEN THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE.
IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.
[NHTSA Manual at VIII-12 (all capitalization and emphases in original)].
The argument of course is that if the tests are not properly preformed, they are not reliable. The question though, is how and/or why is this important to someone arrested for DUI in Michigan?
Well, there is case law to suggest that the SFSTs must be administered in the standardized manner. The leading case is People v. Mullen, 762 NW 2d 170 – (Mich: Court of Appeals 2008) where the court held:
The circuit court also did not clearly err when it determined that Officer Shuler omitted certain facts related to the HGN test, either intentionally or with reckless disregard for the truth. While the standard distance for holding the stimulus when conducting the HGN test is 12 to 15 inches from the suspect’s face, Officer Shuler could not recall the proper distance that he learned in training and held the pen only four to six inches from defendant’s face. When conducting an HGN test, the officer looks for three factors: (1) “the eye cannot follow a moving object smoothly”; (2) “jerking is distinct when the eye is at a maximum deviation”; and (3) “the angle of onset of jerking is within 45 degrees of center.” See Development of a Standardized Field Sobriety Test, Appendix A: Standardized Field Sobriety Testing, available at 177,177 (accessed February 5, 2008).
Although Officer Shuler testified that he knew and understood these factors, he generically stated in the affidavit that “nystagmus is present” without revealing that he had the stimulus too close to defendant’s eyes. Because nystagmus occurs naturally and is always present, the fact that the test had not been performed accurately was a significant omission in the warrant affidavit reviewed by the magistrate. We agree with the circuit court that Officer Shuler’s incorrect administration of the HGN test led to an inaccurate interpretation of the results, and that Officer Shuler acted with at least reckless disregard for the truth when including the misleading statement about the HGN test results in the affidavit.
Understanding this, there are many ways that an unreliable field investigation for drunk driving would be important. One is where the results are part of the foundation or probable cause in a search warrant for blood. This was the issue in the Mullins case. Another is where there is an issue regarding the validity for the arrest, in other words, like the warrant in Mullins, without the improperly administered FSTs there is no probable cause for the arrest.
Aside from the legal issues, there are also factual issues that can be raised at trial before the jury. The argument is essentially this: if the tests were not administered properly than the jury can disregard them in deciding if the common law theory of OUIL has been proved beyond a reasonable doubt. If this happens, unless the jury can rely on the UBAL charge, the verdict must be – not guilty.
For more information on this topic, see Mr. Barone’s article “Do Field Sobriety Tests Reliably Predict Intoxication?”
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