OPERATING VEHICLE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS (OVI) 

Most states have a statute prohibiting operating vehicle under the influence of alcohol or drugs – OVI. The wording could be different but the idea is the same. No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply: (a) The person is under the influence of alcohol, a drug of abuse, or a combination of them… (d)The person has a concentration of .08 or more but less than .17 of one gram by weight of alcohol per 210 liters of the person’s breath.

Also, if a person is stopped and arrested for operating a vehicle under the influence of alcohol or drugs (OVI), and either fails or refuses a blood alcohol or chemical test, the officer seizes the offender’s drivers license on the spot, serves notice of suspension, and sends the offender’s drivers license to the Bureau of Motor Vehicles (BMV).

The refusal to submit to the breathing test may result in automatic license suspension for a one year period for first time offenders and 2 years for second time offenders.

A DUI conviction – especially multiple DUI convictions – can potentially impact whether you receive a visa for admission into the U.S., a discretionary grant of relief from removal or even naturalization.

If you have been arrested for drunk driving, it doesn’t matter what the name of the formal charge is (it could be DUI or OVI), you are facing a criminal conviction for driving or controlling a vehicle while your blood alcohol concentration was over .08 percent or for driving while legally impaired. Even for a first offense, this can mean a suspension of your driver’s license, an increase in your insurance rates, a criminal record, and the prospect of more severe punishment for any future OVI arrest.

UNDERSTANDING WHAT  POLICE OFFICER IS DOING.  BEATING THE FIELD SOBRIETY TESTS

OVI (DUI) investigation procedures are supposed to be   standardized across the United States. All officers suppose to conduct the investigation in the same manner. National Highway Traffic Safety Administration developed several manuals, including NHTSA DWI Detection and Standardized Filed Sobriety Testing Manual , NHTSA Drug Recognition Expert Manual, NHTSA Drugs that Impair Driving Manual.  See NHTSA manuals at http://oag.dc.gov/publication/2006-nhtsa-sfst-manual.

To arrest a driver to OVI violation, a laaw enforcemnt officer must have a probable cause to believe that all elements of the offense are present:

1. the person in question
2. was operation or was in actual physical control of
3. a vehicle
4. while under the influence of alcohol, another drug or both.

DUI detection is performed in three stages:

Stage One: Vehicle in Motion  (Observations of the suspect’s driving) – Should the officer stop a vehicle? Reasonable Grounds?

A. Officers are trained to observe the following 24 cues to evaluate for a possible DUI violation consistent with the research:

Problems maintaining proper lane position

1. Weaving
2. Weaving across the lane lines
3. Drifting
4. Straddling a lane line
5. Swerving
6. Almost striking and object or vehicle

Speed and Braking Problems

1. Turning with the wide radius
2. Stopping problem
3. Unnecessary acceleration or deceleration
4. Varying speed
5. 10 PHG or more under the speed limit

Vigilance Problems

1. Driving without headlights at night time
2. Failure to signal or signal signal is inconsistent with action
3. Driving in opposing lanes or wrong way
4. Slow response to traffic signal
5. Slow of failure to response to officer’s signals
6. Stopping  in a lane for no apparent reason

Judgement Problems

1. Following to closely
2. Improper or unsafe lane change
3. Illegal or improper turn
4. Driving on other than designated roadway
5. Stopping inappropriately in response to officer’s request
6. Inappropriate or unusual behavior (throwing objects, arguing, etc.)
7. Appearing to be impaired
   • Eye fixation
   • Tightly gripping the steering wheel
   • Slouching in the seat
   • Gesturing erratically or obscenely
   • Face close to the windshield
   • Driver’s head protruding from vehicle

B. Officers are trained to observe the following 7 cues while a driving response to the signal to stop:

1. Tries to flee
2. No response
3. Slow response
4. Abrupt swerve
5. Sudden stoop
6. Strikes curb
7. New violations

Phase II: Personal Contact (Observations of the driver after the stop) Should the driver be ordered to exit the vehicle?

A. Officer is trained to look for the following specific signs of impairment:

B. DIVIDED ATTENTION TEST, a test which requires a driver to concentrate on both mental and physical task at the same time.

A. Officers are trained to use three questioning tactics to evaluate a driver:

1. Asking for two things simultaneously
2. Asking interrupting or distracting questions
3. Asking unusual  questions.

C. Non-standardized sobriety tests

1.  Recite part of the alphabet
2. Count down
3. Finger Count

D. The Exit Sequence

• Angry, Unusual reaction
• Can’t follow instructions
• Can’r open door
• Leaving car in gear
• “Climbs” out of the car
• Keeps hands on the car for balance

 Phase Three: Pre-Arrest Screening – Is there Probable Cause to Arrest the Driver for OVI?

PSYCHO-PHYSICAL TESTS. Psycho-physical  tests are methods of assessing driver’s mental and physical impairment.

 Preliminary Breath Test

The preliminary breath test (PBT) can help to corroborate all other evidence and to confirm your judgment as to whether the suspect is impaired. Usually PBT results cannot be introduced as evidence against the driver in court. However, state laws vary in this regard.

Nystagmus. “Nystagmus” means an involuntary jerking of the eyes.

Horizontal Gaze Nystagmus (HGN)

Horizontal Gaze Nystagmus (HGN) refers to an involuntary jerking occurring as the eyes gaze toward the side. In addition to being involuntary the person experiencing the nystagmus is unaware that the jerking is happening. Involuntary jerking of the eyes becomes readily noticeable when a person is impaired. As a person’s blood alcohol concentration increases, the eyes will begin to jerk sooner as they move to the side. Horizontal Gaze Nystagmus is the most reliable field sobriety test. Especially when used in combination with the divided attention tests, it will help police officers correctly identify suspects who are impaired.

In administering the HGN test, the officer has the suspect follow the motion of a small stimulus with the eyes only. The stimulus may be the tip of a pen or penlight, an eraser on a pencil or your finger tip, whichever contrasts with the background. The maximum number of clues that may appear in one eye is three. The maximum total number for any suspect is six. The original research shows that if four or more clues are evident, it is likely that the suspect’s blood alcohol concentration is above 0.10. With four-or-more clues present, this test is 77% accurate.

Vertical Gaze Nystagmus

Vertical Gaze Nystagmus is an up and down jerking of the eyes which occurs when the eyes gaze upward at maximum elevation. Although this type of nystagmus was not addressed in the original research, field experience has indicated that the presence of Vertical Gaze Nystagmus has proven to be a reliable indicator of high doses of alcohol for that individual or certain other drugs.

Divided Attention Tests

Walk-and-Turn (WAT)

In the Instructions Stage, the subject must stand with their feet in heel-to-toe position, keep their arms at their sides, and listen to the instructions. The Instructions Stage divides the subject’s attention between a balancing task (standing while maintaining the heel-to-toe position) and an information processing task (listening to and remembering instructions).

In the Walking Stage the subject takes nine heel-to-toe steps, turn in a prescribed manner, and take nine heel-to-toe steps back, while counting the steps out loud, while watching their feet. During the turn, the subject keeps their front foot on the line, turn in a prescribed manner, and use the other foot to take several small steps to complete the turn. The Walking Stage divides the subject’s attention among a balancing task (walking heel-to-toe and turning); a small muscle control task (counting out loud); and a short-term memory task (recalling the number of steps and the turning instructions).

The Walk-and-Turn test is administered and interpreted in a standardized manner, i.e., the same way every time. Officers administering the Walk-and-Turn test observe the suspect’s performance for eight clues:

• can’t balance during instructions;
• starts too soon;
• stops while walking;
• doesn’t touch heel-to-toe;
• steps offline;
• uses arms to balance;
• loses balance on turn or turns incorrectly; and,
• takes the wrong number of steps.

Inability to complete the Walk-and-Turn test occurs when the suspect:

• steps off the line three or more times;
• is in danger of falling;
• cannot do the test.

Original research shows that if a suspect exhibits two or more of the clues, or cannot complete the test, the suspect’s BAC is likely to be above 0.10. This criterion has been shown to be accurate 68 percent of the time.

One-Leg Stand (OLS)

The One-Leg Stand test also has been validated through NHTSA’e research program. It is a divided attention test consisting of two stages:

• Instructions Stage; and,
• Balance and Counting Stage.

In the Instruction Stage, the subject must stand with feet together, keep arms at sides, and listen to instructions. This divides the subject’s attention between a balancing task (maintaining a stance) and an information processing task (listening to and remembering instructions.)

In the Balance and Counting Stage, the subject must raise one leg, either leg, with the foot approximately six inches offthe ground, keeping raised foot parallel to the ground. While looking at the elevated foot, count out loud in the following manner: “one thousand and one”, “one thousand and two”, “one thousand and three” until told to stop. This divides the subject’s attention between balancing (standing on one foot) and small muscle control (counting out loud).

The timing for a thirty-second period by the officer is an important part of the One-Leg Stand test. The original research has shown that many impaired subjects are able to stand on one leg for up to 25 seconds, but that few can do so for 30 seconds.

One-Leg Stand is also administered and interpreted in a standardized manner. Officers carefully observe the suspect’s performance and look for four specific clues:

• sways while balancing;
• uses arms to balance;
• hops;
• puts foot down.

Inability to complete the One-Leg Stand test occurs when the suspect:

• puts the foot down three or more times, during the 30-second period;
• cannot do the test.

The original research shows that, when the suspect produces two or more clues or is unable to complete the test, it is likely that the BAG is above 0.10. This criterion has been shown to be accurate 65 percent of the time.

The DRE Protocol

The DRE protocol is a standardized and systematic method of examining a Driving Under the Influence of Drugs (DUID) suspect to determine the following: (1) whether or not the suspect is impaired; if so, (2) whether the impairment relates to drugs or a medical condition; and if drugs, (3) what category or combination of categories of drugs are the likely cause of the impairment. The process is systematic because it is based on a complete set of observable signs and symptoms that are known to be reliable indicators of drug impairment.

A DRE never reaches a conclusion based on any one element of the evaluation, but instead on the totality of facts that emerge. The DRE evaluation is standardized because it is conducted the same way, by every drug recognition expert, for every suspect whenever possible. Standardization is important because it makes the officers to be better observers, helps to avoid errors, and promotes professionalism.

The 12-Step DRE Protocol

The DREs utilize a 12-step process to assess their suspects:

1. Breath Alcohol Test

The arresting officer reviews the subject’s breath alcohol concentration (BrAC) test results and determines if the subject’s apparent impairment is consistent with the subject’s BrAC. If so, the officer will not normally call a DRE. If the impairment is not explained by the BrAC, the officer requests a DRE evaluation.

2. Interview of the Arresting Officer

The DRE begins the investigation by reviewing the BrAC test results and discussing the circumstances of the arrest with the arresting officer. The DRE asks about the subject’s behavior, appearance, and driving. The DRE also asks if the subject made any statements regarding drug use and if the arresting officer(s) found any other relevant evidence consistent with drug use.

3. Preliminary Examination and First Pulse

The DRE conducts a preliminary examination, in large part, to ascertain whether the subject may be suffering from an injury or other condition unrelated to drugs. Accordingly, the DRE asks the subject a series of standard questions relating to the subject’s health and recent ingestion of food, alcohol and drugs, including prescribed medications. The DRE observes the subject’s attitude, coordination, speech, breath and face. The DRE also determines if the subject’s pupils are of equal size and if the subject’s eyes can follow a moving stimulus and track equally. The DRE also looks for horizontal gaze nystagmus (HGN) and takes the subject’s pulse for the first of three times. The DRE takes each subject’s pulse three times to account for nervousness, check for consistency and determine if the subject is getting worse or better. If the DRE believes that the subject may be suffering from a significant medical condition, the DRE will seek medical assistance immediately. If the DRE believes that the subject’s condition is drug-related, the evaluation continues.

4. Eye Examination

The DRE examines the subject for HGN, vertical gaze Nystagmus (VGN) and a for a lack of ocular convergence. A subject lacks convergence if his eyes are unable to converge toward the bridge of his nose when a stimulus is moved inward. Depressants, inhalants, and dissociative anesthetics, the so-called “DID drugs”, may cause HGN. In addition, the DID drugs may cause VGN when taken in higher doses for that individual. The DID drugs, as well as cannabis (marijuana), may also cause a lack of convergence.

5. Divided Attention Psychophysical Tests

The DRE administers four psychophysical tests: the Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose tests. The DRE can accurately determine if a subject’s psychomotor and/or divided attention skills are impaired by administering these tests.

6. Vital Signs and Second Pulse

The DRE takes the subject’s blood pressure, temperature and pulse. Some drug categories may elevate the vital signs. Others may lower them. Vital signs provide valuable evidence of the presence and influence of a variety of drugs.

7. Dark Room Examinations

 Blood Test

In Missouri v. McNeely (2013)  United States Supreme Court ruled that police must generally obtain a warrant before subjecting a drunken-driving suspect to a blood test, and that the natural metabolism of blood alcohol does not establish a per se exigency that would justify a blood draw without consent. So, if such test is performed without proper warrant  the results of such blood test should be suppressed from evidence since it is as an unreasonable search and seizure.

OVI LAWYER SERVING CLIENTS IN CLEVELAND AREA

Contact us for a free consultation about your options for defending a DUI charge. We will examine all of the circumstances of your case to determine whether we can challenge your traffic stop or arrest on constitutional grounds. We can also consider the possibility of contesting your case on its merits, through expert testimony on the integrity of your blood alcohol test, the chain of custody of your sample, or biochemical explanations for a high reading that have nothing to do with intoxication.

We represent OVI  clients on their first arrest, clients with prior drunk driving convictions, underage and college student defendants, drivers from out of town or out of state, commercial driver’s license holders and people charged with felony DUI offenses related to serious motor vehicle accidents.