I've noticed over the past few years that people are becoming better at performing SFSTs. I've arrested several DWIs recently who have told me they practice them regularly.
The last four drunks I've arrested have completed the Walk and Turn and One Leg Stand with almost no observable clues. Of course, HGN and several other signs of intoxication--that an experienced police officer can detect--were present, but the videos of the field sobriety tests are nowhere near convincing enough to get a conviction at a jury trial.
Is it time for new SFSTs?
Better would be a recognition by the Legislature that investigators and prosecutors need breath or blood evidence that gives a scientific measure of intoxication. There is no good reason for permitting a drunk defendant to refuse to provide a sample of breath or blood. They should make it a crime to refuse -- that's nothing other than tampering with evidence.
Meanwhile, why not seek a search warrant for blood when a defendant refuses to provide a sample?
For more on this rant, see this older thread.
[This message was edited by John Bradley on 07-12-05 at .]
The search warrant angle is, I think, a good tact to take when available, but many counties will probably find a lack of enthusiasm amongst their judges to make themselves available at the hours that drunks are usually arrested for the reviewing of such warrants.
The most logical and simplest thing to do would be your first option, the blood draw. I don't understand the reluctance of the legislature to make it a crime to refuse to provide a sample. They apparently recognize the risk presented by such persons to the degree that we have a law that takes away their driver's license. We criminalize other behavior that implies much lower risk than a likely drunk driver.
Had a video a couple of weeks ago of a woman who looked decent on video and performed okay on the FST's and refused the test offered....after obtaining a warrant the test on the blood draw came back at .27. You never would have guessed that from the video....maybe .09-.10. Needless to say, it wasn't her first time to perform the FST's.
Wes, I have a search warrant program that is going great. Had one judge who was reluctant to participate. Just happened to be a justice of the peace. So I just told him great, we will just let the county judge be the person who participates in this important program to keep drunk drivers off the road and you can explain to the constituents at the next election why you don't have time to help. He came around. In any event, if an officer presents a warrant to a judge whether he wants it or not, what's he gonna do? It's his job. Make him do it even if he doesn't want to.
We had a judge decline to sign a late-night blood search warrant. He said it was too late and he was tired. We got it signed by another judge. Followed by an apology from the first judge, who probably realized the political side effects of refusing to carry out his sworn duties.
Yes, it is awkward. But the public has a right to be protected by collection of the best evidence available. No one would question this approach for a murder or manslaughter. Why do we have to wait for a bad killing to justify collection of vital evidence?
Around here, officers who bother to ask suspects to rate their level of intoxication on a Zero to 10 scale, get a pretty honest response.
The question has to be phrased in such a way that it includes the legal definition of intoxication, it allows the suspect to say he is not intoxicated, and gives an example of the most intoxicated, so that a number along the scale has some meaning. This is how I recommend our officers use the scale:
"Listen carefully. I would like you to rate your level of intoxication on a scale of zero to 10, where zero means you have no intoxication, 1 means you have just a slight loss of the normal use of your mental or physical faculties due to drinking an alcoholic beverage, 2 means a bit more of a loss, 3 a bit more of a loss, and so on up to 10, where you would be falling down drunk. On that scale, how would your rate yourself right now?"
If there has been some interveaning time between the officer's arrival and the suspect's driving the car--e.g. he is at an accident scene, add the following:
"How would you rate yourself when you were driving your car, just before the accident?"
Most people rate themselves a 2 or a 3, altho some go much higher. I'd be curious to know how well this questionaire works with your DWI suspects who have practised FSTs.
Another trick to remember, if you are recording the suspect on your dash-mounted video, is to have the suspect repeat his answer, and then repeat his answer and indicate with you hand the number he chose, so that the jury is left with no doubt what level he rated himself.
Suspect: "I'm a 3."
Trooper: "I'm sorry, what did you say?"
Suspect: "I'm a 3."
Trooper: "Did you say you are at 3?"--holding up 3 fingers.
If you use this scale, let me know how it works in your area.
Terry, I'm elated you responded to my post. I did a search last week for your previous posts about this, but I was unable to locate it. I've printed your most recent post and will use it on my next drunk.
I, too, agree that the legislature should make refusing a crime. If driving is a privilege, instead of a right, how can someone refuse to provide a specimen?
Does the fact that persons with relatively high blood-alcohol content can apparently "pass" an SFST call into question the efficacy of the test? Since the test is merely a "tool", I guess we just need to find jurors willing to weigh the "result" accordingly. If there were better or more distinctive field tests available I feel relatively certain they would already have come to light. The real problem is not with the test, but that jurors adopt their own tests to determine intoxication or come to doubt the ability of the officer to properly administer or evaluate the test.
Have started to see this from some of our officers. However, I have also seen some DWI 2nds that have had this question posed to them the first time around and are not drunk enough this time to forget how it came back to bite them last time.
(had a friend in another county have a Def. on 2nd state, "oohh about a 2 - wait! - ohh no you don't. I'm not drunk. Yeah, thats it."
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