Recent Blog Posts

It Is Time to Remove "Bicycle" from the Definition of "Vehicle" in Ohio's DUI Code

Brad Koffel — Wed, 22 Sep 2010 13:56:00 GMT

by Brad Koffel

It is time for local governments to get smart about DUI and bicycles. When most citizens are unaware of the fact that current Ohio law treats DUI on a bicycle the exact same as DUI in a car, there is something wrong. Most people have a hard time advancing a credible and articulate explanation as to why an alleged impaired bicyclist is equally dangerous as a drunk driver behind the wheel of an SUV and should be prosecuted identically as the SUV driver.

I agree you shouldn't be messed up on a bike but you shouldn't be messed up walking on streets and across streets. If you are noticeably impaired, in public, you can be prosecuted for Public Intoxication and/or Disorderly Conduct. Why can't that cover being intoxicated on a bicycle, too? Why the necessity to call it what it is not -- Operating a Vehicle While Under the Influence?

There is not one dictionary that includes a bicycle as a "vehicle". There is not one reasonable citizen that would define a bicycle as a "vehicle". Golf carts? OK. Motorized scooters? Sure. Snowmobiles? I agree. But, a bike? Why is a dismounted bicyclist pushing his or her bike on the very same roadway legal but riding it at a slow speed is DUI? Riding your bike while allegedly impaired on a bike path is DUI but riding your bike while impaired on the grassy area next to the path is not DUI? This is crazy.

Why not a motorized wheelchair? That is specifically excluded in R.C. 4511.19. Why hasn't "Trackless Trolley" been removed from the DUI code by now? Is anyone really paying attention to how ludicrous the definition of vehicle has become?

There are more exceptions than there are rules. The exceptions have become the rule.

Remember, bicycle was specifically incorporated into 4511.19 in the same era as Vega, lowering the legal limit to .100, creating "per se" statutes, and raising the drinking age to 21. It was all tied to the major transportation bill of 1982. But, I am pretty sure the transportation bill of 1982 didn't require states to say bikes are vehicles.

Having "bicycle" included in the definition of a vehicle doesn't even pass the common sense test for the reasonable person. It shouldn't be a DUI. It should be public intoxication, not DUI.

Much of that generation of knee jerk legislation pushed the pendulum too far. It is now time to bring it back a little bit.

Can you get a DUI/OVI if you are taking lawfully prescribed medication?

Will Nesbitt — Fri, 10 Sep 2010 19:11:00 GMT

The short answer is absolutely YES!

When you are prescribed medication by licensed physicians they are required to warn you of potential side effects and dangers associated with taking the specific drug. Often times the prescription bottle has a sticker affixed that warns the user that the drug may make you drowsy/dizzy and to use care with car/machines.

Ohio DUI/OVI is what is called a strict liability offense. Essentially, what this means is that you may not argue that you were just following your doctor's advice. Ohio courts have held that whether an offender took medication prescribed to him or ingested an illegal drug bought off the street is irrelevant.

The question becomes whether your ability to operate a motor vehicle was impaired as a result of being under the influence. This determination is made taking into consideration common-sense observations, field sobriety tests, breath, blood, urine, or hair tests determining the amount of drug/s in an offender's system. So if you believe the drug you are prescribed tends to deprive you of the clearness of intellect and control of oneself that you would otherwise possess DON'T DRIVE.

Ohio DUI Blood Test Suppressed Because Defendant Not “Under Arrest”

Will Nesbitt — Sat, 21 Aug 2010 02:56:00 GMT

When an individual is charged with an Ohio DUI/OVI state law dictates that the arresting officer must read a state approved form to the individual. Among other information, this form states that the individual is under arrest. However, the Ohio Supreme Court has already established a four pronged test of when an individual is under arrest. The state must show:

(1) An intent to arrest,

(2) Under real or pretended authority,

(3) Accompanied by actual or constructive seizure or detention of the person, and

(4) Which is so understood by the person arrested.

Recently, an Ohio Court of Appeals ruled that the state approved form, Ohio BMV Form 2255, does not sufficiently place an individual under arrest. The above mentioned factors must also be established. The court ruled that a valid arrest must precede the officer’s efforts to obtain a blood, breath, or urine sample. If a valid arrest is not made your attorney may argue that any blood alcohol test result should be suppressed.

Can you get a DUI/OVI if you are taking lawfully prescribed medication?

Will Nesbitt — Thu, 29 Jul 2010 14:48:00 GMT

The short answer is absolutely YES!

Can you get a DUI/OVI if you are taking lawfully prescribed medication?

Will Nesbitt — Thu, 29 Jul 2010 14:48:00 GMT

The short answer is absolutely YES!

OVI/DUI Tipsters

Will Nesbitt — Fri, 23 Jul 2010 20:37:00 GMT

We are encouraged to contact the authorities anytime we witness questionable driving that could be the result of someone's intoxication. The State of Ohio has spent considerable money in an attempt to dissuade citizens from drinking and driving. Call centers are available 24/7 to answer calls from concerned citizens who picked up the phone and dialed their police agency or 1-800-GRAB-DUI. The question becomes, how much can a police officer rely on the tipster in order to make a lawful stop?

The answer is based on how reliable the source. Someone reporting a suspected OVI/DUI is either anonymous or identified. Someone who refuses to give their name or forgets is deemed less reliable than someone who gives authorities their name and willingness to testify in court. In fact, police relying on an anonymous informant must also witness the questionable driving. If the officer does not witness bad driving then he/she may not stop the suspected driver.

Watch What You Say to a Police Officer—Ohio’s Bribery Statute is in Play During a DUI Investigation

Brad Koffel — Thu, 22 Jul 2010 17:34:00 GMT

Under Ohio law, it is a 3^rd degree felony to try and influence a public official in the discharge of his or her duties. This includes police officers in DUI cases. This is known as Bribery and is punishable with a minimum prison term of 1 year.

A Dayton area man was recently convicted of bribery in Dayton after a he told the police officers to keep the $600 cash found in his pocket if they would let him go. A Montgomery County jury convicted him for making this statement several times to police officers who arrested him. His defense that he wasn't serious about it didn't fly.

Many of our clients have never been in trouble before and engage in a lot of nervous chatter with police officers during the investigation or booking process after an arrest. Sometimes, these folks with no criminal history slide across the line and unwittingly trigger the bribery statute (R.C. 2921.02) by making statements offering something of value in exchange for letting them go.

I've heard clients offer Blue Jacket tickets, Memorial tickets, a round of golf at Scioto C.C., and sex acts in exchange for letting our client go. Most experienced officers should exercise a level of restraint when listening to these statements and balance the seriousness of the statement against the seriousness of the crime. A DUI is a misdemeanor. Bribery is a 3^rd degree felony. Most police officers will chalk these statements up as foolish statements made by naïve and intoxicated people.

We encourage clients to watch what they say during the investigation and booking process. Bribery can be a vindictive charge filed by a police officer when the client never truly contemplated the seriousness of what they were saying.

Airbags in DUI Car Accidents Can Cause Erroneous Breath Tests

Brad Koffel — Wed, 21 Jul 2010 18:06:00 GMT

Most breath test machines in America use a laser beam of infrared light to measure alcohol in a subject's breath sample. This beam can be thought of as a flashlight beam. The beam requires a clean sample chamber and pathway that is obstruction free. Otherwise, the beam will be deflected and adversely effect the accuracy of the breath test result. This technology was introduced in current breath testing machines in the 1980's - well before the introduction of airbags.

Now, every new car sold in America must have airbags. Airbags detonate when pre-set parameters are met by the vehicle's sensors. The airbag is filled with a powder similar to talc or cornstarch. The powder serves as lubricant to assist in the rapid deployment of the airbag. Once the airbag inflates, it starts to deflate and this powder is pushed out of the airbag and into the cabin of the vehicle.

While the driver of the vehicle gets their bearings, they remain in the vehicle long enough to inhale this airbag powder. The inhalation of this dust reaches the mouth, trachea, and lungs. Many people have reported coughing up this dust for several hours after an accident.

The problem arises when the motorist blows into a breath test machine after inhaling this powder. This very fine powder is blown into the sample chamber by the motorist. The dust acts like little mirrors deflecting and diffusing the infrared laser beam inside the breath test machine. Think of a time you've driven at night with your headlights on in the fog. The fog is simply very fine particles of water in the air. The light being diffused and deflected is called the "Tyndall Effect".

The prudent DUI defense attorney will fully examine the client's vehicle scene photos for the presence of a deployed airbag. In the event a client blew into a breath test machine that operates on infrared spectroscopy (Intoxilyzer 5000 and 8000; BAC DataMaster), it is crucial to develop this reasonable and plausible explanation for a breath test reading over the legal limit.

What is “Probable Cause” to Arrest for DUI / OVI in Ohio?

Brad Koffel — Mon, 19 Jul 2010 16:05:00 GMT

Probable cause to arrest for DUI / OVI in Ohio exists when, at the moment of arrest, the arresting officer had sufficient information, derived from reasonably trustworthy source of facts and circumstances, to cause a prudent person to believe the accused was driving under the influence of alcohol. A judge must make this determination based on the "totality of the circumstances".

Many Ohio courts conclude that the mere act of operating a vehicle with an odor of alcohol on the breath coupled with one or two other shreds of evidence supports probable cause. In fact, most Ohio appellate courts do not require field sobriety testing to be conducted in order to support an arrest for DUI / OVI in Ohio. Also, several courts have found probable cause to arrest for DUI / OVI in Ohio after testimony establishes that the motorist actually passed the field sobriety tests!

Does Parenting Style Effect Teen Drinking?

Brad Koffel — Thu, 08 Jul 2010 17:19:00 GMT

I just finished reading an interesting article titled, "Parenting Style, Religiosity, Peers, and Adolescent Heavy Drinking" in the July 2010 issue of Journal of Studies on Alcohol and Drugs. Two Ph.D.'s researched and studied parenting style, religion, and peers on teen drinking. What they found is quite interesting if you have a teen child.

First, they recognized the four established parenting types: authoritative, authoritarian, indulgent, and neglectful. Authoritative parents "tend to be high on support (warmth, nurturance) and control (monitoring, discipline)." Authoritative parents are demanding but also equally responsive and warm. Authoritarian parents "tend to be high on control but low on support. Their assertions and demands are not properly balanced with praise and genuine warmth."

Indulgent parents tend to be warm and supportive but provide relatively low levels of monitoring or direction. Finally, neglectful parents are low in both direction and warmth.

The researchers found that adolescents from authoritative homes were significantly less likely than adolescents from the other three types to have participated in heavy drinking or to have close friends who used alcohol. As expected, teens with a parent or parents who tend to be more neglectful had the had the highest odds of heavy drinking. Also, they found that religious teens were significantly less likely to drink or have peers who use alcohol.

The researchers were careful to point out that the parenting style is defined by how the teen perceives their parents, not how the parents perceive themselves. This is a very important distinction.

Finally, the researchers concluded that teens with authoritative parents (highly demanding and responsive) tend to monitor their children closely and provide high levels of emotional support and warmth. This parent is attuned to the emotional and mental needs of their child and foster a healthy relationship of trust and discipline. This type of parent may help diminish the likelihood that adolescents will choose risky forms of self expression such as heavy drinking even when they have peers who use alcohol.

In my professional practice, I've seen all four types of parenting styles and variations thereof. I encourage parents of teens to establish appropriate rules and policies concerning drinking, monitor all aspects of their teen's life, and enforce the rules while maintaining an appropriate level of trust. At the end of the day, there is only so much a parent can do with this difficult issue.

Common Areas of Prosecutor Misconduct in DUI Trials

Brad Koffel — Wed, 07 Jul 2010 20:22:00 GMT

Many prosecutors who prosecute DUI cases are relatively young and inexperienced in conducting jury trials. Others fail to see anything but getting a conviction. As a result of naivete or professional ambition, it is common to witness prosecutorial misconduct in a DUI trial. Of more concern, is that many defense lawyers are either not aware of or do not object to these areas of misconduct.

Commenting on the Defendant's Right to Remain Silent

One of the most egregious examples of prosecutorial misconduct occurs where the prosecutor encourages the jury to infer that the defendant must be guilty because he failed to testify at trial. In Ohio DUI / OVI cases, it is improper for a prosecutor to comment directly on the defendant's failure to testify or to present witnesses or evidence. The prosecutor might subtly make the same point by claiming that the chemical test result was "uncontradicted," or that the police officer's opinion on impairment was "unrefuted". Each of these oblique references to the defendant's failure to testify or present evidence is improper. Defense counsel should object and move for a mistrial.

Villifying the Defendant

Many times our clients are parents of young kids. The client may enjoy an evening out with friends or their spouse only to get arrested for DUI / OVI before making it home. This scenario presents an opportunity for a prosecutor to comment on the kids being home and the parent-defendant out drinking. This is an improper attempt to villify the defendant.

In the event a client testifies, the prosecutor will certainly challenge the client's version of events. However, It is improper for a prosecutor to ask a defendant whether by accepting the defendant's testimony, the jury would have to conclude that a police officer was lying.

Attacking Defense Counsel

If a defendant is being represented by a reputable or "expensive" lawyer, it is improper for a prosecutor to insinuate that the client "must be guilty" because he/she hired a specific attorney. Commenting on how much a defendant may be spending on a lawyer or experts is also improper.

In drunk driving cases, it would be improper for the prosecutor to insinuate or claim that defense counsel's argument that field sobriety tests were unfair and biased was made in bad faith and was really nothing more than a fabricated defense designed to mislead the jury. Similarly, it would be improper to argue that the prosecutor "knows" defense counsel and that the prosecutor can tell when defense counsel really does believe his client is guilty.

Any attacks on defense counsel, whether direct or through insinuation or innuendo, are both improper and unethical and they must be challenged. They also are designed to deprive the defendant of the right to a fair trial. Both the defense counsel's integrity as well as the client's constitutional rights are at stake.

Trumpeting the Prosecutor's Office

Prosecutors love to paint themselves as guardians of the community. He or she may try to depict himself or herself as a truthful, honest, and credible person who is the jury's friend and advocate. Prosecutors sometimes try to enhance their credibility with juries by talking about the important role that they play in "keeping drunk drivers off the road," "by protecting the public against criminals" and "by making sure that criminals are brought to justice." These attempts to "[stress] their own personal integrity and the prestige of their office" is misconduct. ABA Standards for Criminal Justice §3-5.8(b).

It is also improper for a prosecutor to attempt to "vouch" for a witness directly or to state or suggest indirectly that matters outside the record would support the witness's testimony. Remember that prosecutors are not witnesses, they are prosecutors and any attempts by them to become unsworn witnesses must be challenged immediately and forcibly as being improper.

Misrepresenting the Testimony

I have found the number one examle of prosecutorial misconduct is misrepresenting the record. Specifically, prosecutorial misconduct involves misrepresentations of what has transpired during the trial by either deliberately mischaracterizing testimony or documentary evidence, or by going outside the record on a hunt for incriminating evidence. For example, if a prosecutor "relies" on a document which was never introduced into evidence as a means of attempting to establish guilt, the defense should immediately object to these improper remarks.

Prosecutors may also try to convince the jury that it must convict the drunk driver or there would be dire consequences for the public. The classic closing argument goes something like this:

Now, we often hear, we often read in the paper or hear on television or anything else, something that happens, there's a lot of public sentiment at this point against drinking and driving, causing accidents on the highway. And, you know, you read these things and you hear these things and you think to yourself, "my God, they ought to do something about that" ... well, ladies and gentlemen, the buck stops here. You jurors are the "they".

Finally, the prosecutor cannot attempt to influence the jury to return a guilty verdict by suggesting that they need not be concerned if they are wrong because any errors they make can be corrected by an appellate court. In this regard, it would be improper for a prosecutor in a vehicular homicide case to argue as follows:

Ladies and Gentlemen, Bob Smith is dead. And we know he's dead because his vehicle was struck by the vehicle driven by the defendant. We also know alcohol was found in the defendant's system. Now we have heard from a number of witnesses who have testified that the defendant appeared to be intoxicated, that he staggered and swayed and was crying. Sure, the defense claims that the defendant was injured in the accident and that alcohol played no role in the case. The defense claims the accident was caused when a tire blew and the defendant lost control.

Ladies and Gentlemen, a man is dead. Alcohol was in the defendant's system. The police officer, Officer Martin, in his professional opinion, came to the conclusion that the defendant was under the influence of alcohol. The state's accident reconstruction expert witness testified that in his opinion the tire blew after the accident, not before as the defendant contends. The evidence is sufficient to prove guilt beyond a reasonable doubt and that should be your verdict.

If the defendant does not accept the verdict, then he has the right to appeal and if there are any errors made by you, they can always be corrected by a higher court. So do what's right based on the evidence in this case. Return a guilty verdict and give justice to Bob Smith.

This argument is improper as it tries to assuage any "reasonable doubt" the jury may have by informing them that if they are wrong, their error can be corrected and the defendant will not be harmed.

Inflaming the Jury

Prosecutors also engage in misconduct when they attempt to appeal to the emotions of jurors and introduce inflammatory and prejudicial physical evidence. The most common example is introducing the most horrific photographs of a victim. Also, inflaming a jury would include arguing in such way as to incite the jury to seek vengeance rather than to do justice.

It is also improper and reversible error for a prosecutor to repeatedly ask jurors to consider what might have happened if they or a small child had been on the road on the night of the alleged offense. Whenever arguments invite jurors to put themselves into the "shoes of a victim," they are generally improper. Where the misconduct is flagrant, it can constitute reversible error.

Many prosecutors do not know the boundaries for proper prosecutorial conduct and need to be educated. Other prosecutors do know the boundaries and are willing to overstep them in an effort to get a conviction at any cost.

Why Do Lawyers Tell People to Refuse Breath Tests?

Brad Koffel — Tue, 06 Jul 2010 18:14:00 GMT

Many people are uncertain why lawyers advise clients to refuse a breath test. Most lawyers who are familiar with the studies conducted on breath testing machines know that these machines are not infallible. In fact, many scientific studies demonstrate an alarming false positive rate and other significant concerns.

These studies indicate that there are significant error factors in a breath test.

One large study called the “Harger Study” found that less than 50% of breath tests are within 10% of the actual blood alcohol level. These studies were done with breath test machines and corresponding blood tests and in a controlled setting. It is fair to say that it is impossible to get perfectly accurate and reliable BAC tests based upon breath analysis.

Moreoever, there are a host of known sources of error. Here is a classic list many lawyers like to cite which is found in Defending Drinking Drivers (Vol. 1, Section 223.8, 2007), Patrick Barone and John A. Tarantino:

Sources of Error in Breath Testing

There are many factors that can affect the validity of breath analysis. Some of the problems that can arise during a breath test are:

(1) operator error (which can include the failure to observe the subject for the required period of time before administering the test or the failure to follow the administrative rules and regulations concerning the administration of a breath test).

(2) deviations from normal body temperature. See LaBianca, “The Myth of Breath Test Accuracy What the Studies Have Really Shown,” 5 DWI Journal: Law & Science 11 (November 1990) (for every one degree centigrade change in alveolar air temperature, the conversion ratio, and the percent blood alcohol content changes by 6.5%); see also Jones, “How Breathing Technique Can Influence the Results of Breath Alcohol Analysis,” 22 Med. Sci. Law 275-280 (1982),

(3) abnormal hematocrit. See generally E. Fitzgerald & D. Hume, Intoxication Test Evidence: Civil and Criminal (1987 & 1990 Supp.);

(4) disease. See Cohen, “Calculation of Blood Alcohol Concentration: Uses and Limitations,” 1 DWI Journal: Law & Science 5 (1986);

(5) changes in barometric pressure. See Leonelli, et al, “Altitude Effect on Alveolar Ethanol Analysis,” 40 Aeros. Med. 1388 (1969);

(6) hyperventilation. See Schmutte, “Comparative Study of Breath and Blood Alcohol Concentration After Physical Exercise and Special Breath Techniques (Hyperventilation),” 10 Blutalkohol 34 (1973); Jones, “How Breathing Technique Can Influence the Results of Breath-Alcohol Analysis,” 22 Med. Sci. Law 275-280 (1982);

(7) improper machine maintenance. See Cowan, Hayne & Fox, “Attacking the Reliability of Breath Alcohol Testing Devices: A Case Study of the BAC Datamaster II,” DWI Journal: Law & Science 9 (September 1987);

(8) problems with simulators. See Dubowski, “Breath Alcohol Simulators: Scientific Basis and Actual Performance,” 3 J. Anal. Tox. 177 (1979); Ramsell, “Impeaching 10,000 Breath Alcohol Tests: The Solution is the Solution,” 4 DWI Journal: Law & Science 2 (February 1989); and

(9) radio-frequency interference.

Accordingly, before a judge or jury decides how much weight to afford a motorist’s breath sample, it is crucial that these issues be explored and explained. Unless you are in Ohio where a 1984 Ohio Supreme Court prevents an accused from challenging the reliability of breath test machines on issues like these. (State v. Vega, 12 Ohio St.3d 185, 1984)

MISSING DUI VIDEO EVIDENCE

Brad Koffel — Mon, 05 Jul 2010 16:33:00 GMT

What happens when a DUI / OVI arrest is videotaped by law enforcement and then the video comes up missing? On June 30, 2010, the Franklin County Court of Appeals in Columbus, Ohio decided against a motorist when this exact issue arose. The defendant was arrested by The Ohio State University Police Department for DUI / OVI. She took a breath test at the OSU police department. The act of giving a breath sample was recorded.

The defendant requested a copy of all video evidence at the defendant's first court date - just 4 days after her arrest. The Ohio State University Police Department's video policy is to have digital video evidence overwritten if it is not requested to be preserved within 96 hours (4 days).

Courts considering the effect of the loss or destruction of evidence in a criminal case have distinguished between evidence that is materially exculpatory and that which is only potentially useful. If evidence is materially exculpatory, its suppression violates a defendant's due process rights, and requires dismissal of the charge. State v. Johnston (1988), 39 Ohio.St.3d 48. On the other hand, if the evidence is only potentially useful, the defendant must show bad faith on the part of the state in order to show that the defendant's due process rights have been violated. State v. Geeslin, 116 Ohio.St.3d 252, 2007-Ohio-5239; Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333.

Evidence is materially exculpatory if " 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" The defendant argued that the burden should be on the prosecution to prove that the video evidence was not materially exculpatory. The prosecutor argued that the evidence was just "potentially useful" thus not required to be preserved. The Franklin County Court of Appeals concluded that the burden is on the defendant to prove that the police department's video evidence of her was "materially exculpatory" and that evidence that is merely "potentially useful" does not need to be preserved unless the defendant can demonstrate "bad faith" on the part of law enforcement.

Asking a citizen to prove bad faith on the part of the government is next to impossible. Furthermore, asking a citizen to prove that the contents on police video is materially exculpatory is completely impossible. It continues to amaze criminal defense lawyers how many ways the courts will issue illogical or unfair rulings in DUI / OVI cases.

How Can a Lawyer Really Help After a DUI Arrest?

Brad Koffel — Thu, 01 Jul 2010 20:01:00 GMT

At a minimum, a knowledgeable and experienced DUI lawyer can help you get through the courthouse maze and address all your needs. A lawyer who is very familiar with a particular court and its staff is worth the investment. Courthouse dockets can be very backlogged. A good lawyer can help you get in and out of court, thereby reducing your wait time.

A knowledgeable lawyer will know how to get your case in front of a good judge or prepare you for a judge who may be tougher. Getting better driving privileges at the earliest possible date is one of the first things a DUI lawyer can do for you.

A lawyer who has fantastic working relationships with prosecutors, police, and judges will almost always help you in many aspects of your case. Jail avoidance techniques, DUI reductions, sentencing reductions, payment plans for court fines, broad driving privileges, trying to get non-reporting probation, what alcohol education programs to avoid, minimizing fines, and overall being your "eyes and ears" are 8 solid reasons to invest in a lawyer.

If you or someone you know are scheduled to go to court on a DUI, we highly recommend that you get a lawyer who (a) knows Ohio DUI laws at an expert level and (b) knows not only the judges but the staff in the court in which you are scheduled to appear.

FIELD SOBRIETY TESTS: JUNK SCIENCE

Brad Koffel — Tue, 29 Jun 2010 14:56:00 GMT

I have been representing people charged with DUI in Ohio since 1994 on a daily basis. In nearly 95% of my cases, I've had to deal with evidence of field sobriety tests. These roadside exercises are hard for anyone to do, let alone when a person is scared. So, what is the science behind the standard battery of field sobriety tests (standing on one leg, the walk and turn, and the pen in front of the eye test (HGN))?

In a nutshell, these exercises were developed by two researchers in the late 1970's - Dr. Marcelline Burns and Dr. Herb Moskowitz. Both researchers were with the brand new institute called the Southern California Research Institute. Dr. Moskowitz had been doing research on rats and the effects of alcohol and other drugs. When the federal government issued a Request for Proposals in 1975 to come up with some roadside DUI tests, SCRI won the contract. From what I can tell, it is one of the very first research projects Marcelline Burns did. In fact, on her CV, I have not seen any other published projects before 1975.

Dr. Burns first report to the federal government was issued in 1977 (Psychophysical Tests for DWI Arrest, U.S. Dept. of Transportation, National Highway Traffic Administration, DOT-HS-5-01242). 238 volunteers and 10 police officers from Los Angeles county participated in this lengthy study. All 238 volunteers were tested in a laboratory setting, not roadside. Nor were any of the volunteers under the threat of arrest. The published false arrest rate from the 1977 study was an alarming 47%! That means that 101 of the 238 people "arrested" for DUI, 47 had a blood alcohol level below the legal limit.

In 1981, Dr. Burns submitted another study on field sobriety tests to the federal government. (Development and Field Test of Psychophysical Tests for DWI Arrest, U.S. Dept. of Transportation, National Highway Traffic Administration, DOT-HS-8-01970). This time, in order to lower the error rate, 78% of the subjects were dosed with alcohol at either a very high level (.150% or greater) or doses at a very small level (.050% or below). In other words, nearly 80% of the subjects were what we call "gimmes".

The error rate dropped from 47% to 32%. That means that of the 118 people "arrested" for DUI, 37 of them were improperly accused of DUI. More startlingly, of the 37 people falsely accused of DUI, 18 subjects had absolutely no alcohol in their system!

So, if you or someone you know was arrested for DUI primarily on the basis of "failing" field sobriety tests, it is highly recommended that you consult with a lawyer with a deep understanding of the alleged science behind these roadside exercises.