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A DUI CASE STUDY

By Brad Koffel

My law firm is asked by hundreds of people each year to represent them after a DUI arrest.  We've been doing this for 17 years.  We truly enjoy helping our clients understand the process of getting them driving again, protecting them from jail, assisting them in navigating their way through the BMV maze, and always being present with them in the courthouse.

If you or someone you know is deciding whether to retain a lawyer or trying to figure out the differences between all the lawyers, I encourage you take a few minutes and read this summary of a typical DUI single car accident case.  We hear stories like this every week from our clients.

Successful outcomes come from knowing your client, their background, and vividly re-creating the unfairness associated with many DUI investigations.   Names and locations are changed to protect the identity of the client and the Columbus Police officer.  This client was found "Not Guilty" at trial. 

On a cold, windy, and rainy afternoon in October 2009, "Robert Smith", 62 years old, was returning from a business trip.  He'd been on the wet roads for quite a while and was still about 90 minutes from his Cincinnati home.  Robert hadn't eaten anything since breakfast in Pennsylvania.  As he entered Licking County, he exited I-70 and found a small restaurant to grab a burger and a beer.

Robert read the day's newspaper and enjoyed a beer while he waited for his late lunch to arrive.  When his food arrived, the waitress asked him if he wanted another beer. Without much forethought, he said, "Sure".  A second cold bottle of Budweiser soon arrived.

With the burger, beer, and paper finished, he paid his tab, left a few bucks for a tip and headed back out on I-70.  The rain held steady.  His truck's wipers rhythmically did their job with an occasional screech.  He took his place in the flow of other travelers, not too fast, nor too slow.  He listened to his favorite XM radio station.  He was not in a rush but was ready to get home and see his wife. It had been a long week.

As Robert approached Columbus from the east, the downtown skyline grew larger in the distance.  Traffic increased its pace and flow.  More cars entered I-70 than exited.  Soon cars were bunched together and Gary's vigilance increased to match the conditions.

The road signs indicated I-270 southbound was within the next mile.  Calculating the need to be in the correct merge lane within 50 seconds, Robert reached to his left and activated his turn signal.  Other hurried motorists tried to slow but not enough.

30 seconds to his exit.  Robert tapped the brakes to let a few cars on his left move beyond him so he could slide in hide behind them.  The truck behind Robert drew within a foot of Robert's rear bumper.  His rear view mirror was filled with the grill of a semi truck with obvious disinterest in keeping a safe distance.

15 seconds to his exit. Switching strategy, Robert took his foot from the brake and stepped on the accelerator.  His 3 year old truck quickly pushed the speedometer up to 75 miles per hour.  He eyed the hole that was about to open for him to get over.

10 seconds to the ramp.  He took one last look in the large passenger mirror, a quick check over his right shoulder, and darted into the good sized gap between two other vehicles.  He started to leave westbound I-70 as he followed the wide ramp that would carry him safely onto 270 south.

The apex of the ramp was too close to negotiate based upon his current speed.  He pushed firmer on the brake pedal.  The rear wheels quickly slowed as his pickup's tires began to lose their grip. The heavy front end was being led by the front wheels trying to turn the truck to the right.  The lighter back end, tires struggling to stick to the wet asphalt, slipped to the left.  The momentum between the two forces worked in tandem.  Robert's truck careened off the rain soaked exit ramp.

Fortunately, the Ohio Department of Transportation anticipated such occurrences on ramps such as these and installed a guardrail.  This wide rail of sheet metal is fixed at intervals to thick wooden posts set in concrete in the ground.  It is designed, of course, to keep cars from traveling more than 10 feet from the roadway upon impact.  Also, the height of guardrails matches the center of gravity of most vehicles and prevents them from either rolling or going airborne.

The guardrail normally matches up with the middle height of the vehicle.  In this case, the only thing separating Robert from being crushed into the steel guardrail was his truck's door.  His body mashed hard against the driver's door, his head hit the side window, and his seatbelt bit down on his upper body.  Needless to say, he did absorb a lot of the energy displaced by a 2,000 pound vehicle coming to a sudden stop into an immovable guardrail.    Surprisingly, the steering well wasn't bent as he held on for stability.

After impact, he brought his truck to a safe and controlled stop on the berm.  He threw the truck in park, left the engine running, and turned on his hazards.  He collected his thoughts, checked himself over, and took a quick survey of the damage done to his truck.  Dazed but not delirious, Robert located his cell phone which had bounced through the cabin of his truck.  He found it lodged between the seats.  He called 911 to report his accident.  His call was routed from the Franklin County Sheriffs 911 Center to the Columbus Police Department radio room.

He gave his name, cell phone number, location, and a very brief description of what had just happened.  He was told that an officer was on his way.  He pressed "end", put the phone down, and just sat there seat belted taking inventory of what he needed to do next.

He wondered if he should call his wife, his insurance company, or a tow truck first.  Undecided, he unclicked his seatbelt,  checked his mirrors to make sure cars were safely passing around him, reached for the door latch, and slowly climbed out of his truck.

The rain had turned to a light mist and it seemed darker now that he was standing on the side of a freeway rather than when he was cruising along in the warmth of his truck.  Keeping his awareness of other motorists, he cautiously moved around his truck, first looking at the side quarter panels then the front grill and hood.  His truck took a good lick.  He guessed that there was at least $3,000 in dents, scrapes, and paint that needed repaired.

While he was looking at one dent in particular, the door shutting behind him caught his attention.  He turned to see a white Columbus police cruiser with its overhead emergency lights on.  The police officer was wearing a large black police issued parka and walked over to Robert.  It was Officer Kincaid, CPD freeway patrol.

Officer Nick Kincaid has been with the Columbus Police Department just a few years.  In 2003, he graduated from Mansfield Senior High School.  He was athletic, liked the discipline associated with law enforcement, and he decided to be a police officer.  The minimum age to apply to be an officer in Columbus is 20 years old.  Nick filed an application with the Columbus Civil Service Commission.  He successfully passed a criminal background check, was interviewed, and accepted into the Columbus Police Academy.  He took the official examination, passed, took the oath, and was given a badge, gun, and uniform.

When police officers come to the scene of a non-injury accident, they take a quick look at the scene, make sure vehicles can pass, illuminate flares, and check on the well being off the occupants.  In this case, vehicles could pass, he did not feel the need to illuminate any flares, and hardly asked Robert any questions about his physical well being.

Robert felt compelled to explain he lost control and hit the guardrail because of the wet roads.  He told Officer Kincaid that it was him that called 9-1-1.  Officer Kincaid smelled the odor of recent beer on Robert's breath and breezed past Robert's explanation of the accident.

He asked Robert if he'd been drinking.  Robert, feeling no need to lie, told him the truth.  That he had two beers with lunch.

Now, some officers may take note of that statement and realize the person was not intoxicated and move on into the accident report.  Other officers might take note of the recent consumption of alcohol and wait and see if there are any solid signs of intoxication before escalating from an accident report to a DUI investigation.  Just as quickly as Officer Kincaid moved past the need to secure the scene, he rushed into the so-called roadside sobriety police tests.

Most   people are familiar with these tests or exercises.  We've all seen them on TV or in the movies.    Maybe you're familiar with the 1983 movie starring Steve Martin called, "The Man With Two Brains".  It's a romantic comedy directed by one of Hollywood's all time greats -- Carl Reiner.

Steve Martin also wrote it as well as played the lead, Dr. Michael Hfuhrururr, the world's best neurosurgeon, traveling in Vienna, Austria.  He is stopped by an Austrian police officer and is put through a series of crazy roadside tests.  For instance, he's asked to hop on the white roadway line on one hand then do a cartwheel and back flip.  There's another test where the officer reaches into his pocket and pulls out three balls and tells Steve Martin to juggle them while tap dancing and singing an Austrian folk song.  Do you remember what Steve Martin's famous quote is? "Damn your drunk tests are hard".

Well, of course, America's roadside DUI tests aren't as impossible as those performed by Steve Martin.  But, there is a reason why anyone and everyone who talks about the American DUI police tests all say the same thing.  You know what they say? Everyone says, "Man, those are hard.  I don't know if I can stand on one leg for 30 seconds right now."

You know what? Everyone is right. They are ridiculously tough to pass.

America's "drunk tests" were formally introduced to police in a training manual just a few years after "The Man With Two Brains" - around the mid-80's.  Every police officer in America has the same DUI training manual published by the National Highway Safety Administration, more commonly called, "NHTSA".

Let me read a few quotes from the NHTSA police officer training manual about the federal government's "DUI tests".  I am going into the sections that talk about their accuracy.  Are you ready for this?  Chapter 8, page number 1.  How accurate is the stand on one leg to determine if a person is DUI?  95%? No.  85%? Nope.  75%? Uh, no.  How about 65%!

Well, that's only one roadside test.  Certainly, the other physical exercise test is more accurate. Right?  I go back to Chapter 8, page 1 for the accuracy of the walk and turn test.  How accurate is that test? How does 68% sound to you?  Accurate? Reliable? Worthy? Helpful? Relevant?

Let me ask you this.  If you got a 65% or a 68% on a test in school and brought it home, would your teacher have put a smiley face on it before giving it to you? Would your parents have stuck it up on the fridge when you rushed it home?  Of course not!  Grades like that, not only do you not want to take the test home, you don't even want to go home.

Now, back to the story of Robert and Officer Kincaid.  There they are, along the freeway ramp, in the damp evening chill, the officer in a long waterproof parka, and Robert in his thin business,  dress slacks, and dress shoes.

Remember, Officer Kincaid knows exactly what the next 5 minutes holds. He's in control of the situation.    He's going to run Robert through these very same   DUI tests I just mentioned in Chapter 8 of the training manual.  He knows exactly what he's going tell Robert to do.  He knows every step, every movement, and every action.

Meanwhile, Robert's mind begins to race with the fear of the unexpected.  He doesn't know what he is going to have to do but he knows the officer is going to put him through these "drunk tests".  Robert's nerves go from worrying about the damage to his truck to worrying about Officer' Kincaid's obvious single mindedness to start a DUI investigation.  Robert can see it in the officer's eyes, hear it in the officer's voice, and feel it in the air.

The first physical test is the walk the line, turn and walk back.  Easy enough, right? Take a deeper look into what specifically happens on this.

Along the side of a freeway ramp, in the dusky, damp, gray evening, Officer Kincaid's voice grows more commanding.  More authoritative.  That's by design.  Officers are trained to seize control of the environment.  Assert their dominance.  Discourage disobedience.  So, the officer uses his "police officer" voice and recites, verbatim, this long list of extremely specific instructions.  These instructions are so specific and important, they are published in the same chapter as the accuracy percentages we just talked about.  The DUI training manual.

Chapter 8, page 9.  "PROCEDURES FOR WALK AND TURN TESTING"  "VERBAL INSTRUCTIONS".

#1. Place your left foot on the line (real or imaginary).

#2 Place your right foot on the line ahead of the left foot

#3 Put the heel of your right foot against the toe of your left foot

#4 Place your arms down at your sides

#5 Keep this position until I tell you to begin

#6 Do not start to walk until told to do so

#7 Do you understand the instructions so far

#8 When I tell you to start, take 9 heel to toe steps

#9 turn

#10 take 9 heel to toe steps back

#11 when you turn, keep the front foot on the line

#12 turn by taking a series of small steps with the other foot

#13 while you are walking, keep your arms at your sides

#14 watch your feet at all times

#15 count your steps out loud

#16 once you start walking, don't stop until you have completed the test

#17 when you begin, count your first step from the heel to toe position as "one"

The lighting is poor.  Traffic is feet away.  A police officer whose run people through these tests so many times that they are "easy" or "no big deal" just barked out 17 sequential instructions.  He's said the instructions so many times he has them memorized.  What's it like for Robert? What would it be like for you? Imagine taking a sip of water from a firehose.  It comes at you so fast you can only get a portion, right? Can you, right now, recite those exact 17 instructions back, in your own head? I doubt it.  How about memorizing them, in order, recalling them, and then physically doing them? All at the same time?   That's what Robert had to do to avoid getting arrested.

Now, Officer Kincaid says he saw Robert "fail to strike heel to toe" a few times, that he "stepped off the line", and didn't do the "correct turn". Based upon that, Officer Nick Kincaid is of the personal opinion that Robert's performance showed "3 clues of being under the influence of alcohol".

Why does he say that? Because that is what he was trained to say.  It's right in the same manual I've been referring to.  It's right here.  Chapter 8.  Page 11.  What else can he say?  It's in the same chapter as the accuracy of this test.  Remember that percentage of accuracy? 68%.  It's in the same chapter as those 17 specific instructions.  In fact, this manual tells every police officer in America that just 2 clues is a fail.  Wow, that's some seriously tough stuff.  When we say America is getting tough on drunk driving, they aren't just talking about the penalties, are they?

Let me tell you the other side of the walk and turn story.  Take a look at this.  Don't forget.  Robert had to hear, memorize, recall, and execute 17 instructions. After hearing the instructions for the first time in his life.  Hearing them just once.  On the side of a freeway ramp.  Now with a new wrinkle - the threat of arrest . . .

So, let's take a deeper look into his mental thought processes and his actions in this exercise.

#1. Place your left foot on the line (real or imaginary)-he mentally processed this and did it.

#2 Place your right foot on the line ahead of the left foot-he mentally processed this and did it.

#3 Put the heel of your right foot against the toe of your left foot-he mentally processed & did it.

#4 Place your arms down at your sides-he mentally processed this and did it.

#5 Keep this position until I tell you to begin-he mentally processed this and did it.

#6 Do not start to walk until told to do so-he mentally processed this and did it.

#7 Do you understand the instructions so far-he told the officer he did.

OK, so the first 7 tasks, he mentally processes are not effected by alcohol.  At all.  His reactions are not effected by alcohol.  At all.  And, his actions are such that he maintains that stance for nearly a minute while the officer instructs and demonstrates the rest of the test.  No signs of alcohol impairment.  At all.

I want to see anyone who is noticeably impaired recall those 7 tasks, in order, and do them like this 62 year old man.  If alcohol is depriving your brain and central nervous system to such a degree that makes you noticeably impaired, you will see signs right there.  Somewhere in those first 7 tasks.

But, let's give the prosecution the benefit of the doubt.  We aren't supposed to, right?  Robert is the only person in this courtroom who is supposed to get the benefit of the doubt.  He's the one on trial.

But, just to illustrate what I am saying, let's give the prosecutor the benefit of the doubt and say Robert was intoxicated that evening and managed to turn the effects of impairment off long enough to get through those 7 tasks.

So, how does the rest of this test unfold for him?

#8 When I tell you to start, take 9 heel to toe steps-he started on time and took 9 steps

#9 turn - he did

#10 take 9 heel to toe steps back - he took 9 steps back

#11 when you turn, keep the front foot on the line - he kept his front foot on the line

#12 turn by taking a series of small steps with the other foot - he did

#13 while you are walking, keep your arms at your sides - he did

#14 watch your feet at all times - he did

#15 count your steps out loud - he did

#16 once you start walking, don't stop until you have completed the test - he did

#17 when you begin, count your first step from the heel to toe position as "one" - he did

So what did he do to "fail"?  He didn't "strike" heel to toe on 2 of 18 steps.  I didn't really hear "strike heel to toe" in the instructions.  But, Robert must have because he did 16 of 18 times.

What else did he do to "fail"? he stepped off the line.  I don't recall hearing "stay on the line" in the instructions.  Robert must have because he stayed on the line 17 of 18 steps.

It ought to be pointed out that there really wasn't a line at all for Robert.  It was the officer's imaginary line.  Which apparently is straight and approximately 9 feet long.  I am not sure how wide it was.  I don't think Robert knew either.  In fact, I am not sure the officer knows how wide it was.  But, I guess that doesn't matter.

The stand on one leg test came next.  Quite candidly, after exposing these test for what they are ('designed for failure"), I am sure we can say Robert "failed".  He was asked to take a foot off the ground and hold it for 30 seconds.  Remember, this test is accurate a whopping 65% of the time.  Well that means 35% of the people who do it will "fail" it.  Somebody has to be in the 35% "fail population".  Is it fair and reasonable to believe this 62 year old man who just smacked his truck, drivers side door first, into a metal guardrail at 30-50 miles per hour might fall into that 35% who "fail" category? Absolutely.

There's a 3rd roadside test but it has nothing to do with a person's actions, reactions, or mental thoughts being noticeably impaired.  It has a name that is hard to say, Horizontal Gaze Nystagmus.  It has something to do with a person's eyes jerking or bouncing when they follow a pen. 

Unfortunately, there's no way to corroborate what the officer saw.  There is no video of Robert's eyes allegedly bouncing around in their sockets.  No other officer saw Robert's eyes being jumpy.   So, we are stuck with Officer Nick Kincaid's memory.

But, let's see what Chapter 8 of the police training manual says about this "test".  Chapter 8, pages 3 and page 4 list all kinds of things that can cause a person's eyes to "be jerky".  The officer never ruled those 2 pages of other types of nystagmus out.  Why didn't the officer do this? Why didn't he report these other causes of nystagmus in his report? Why didn't he testify about these other causes in his report when the prosecutor asked him about this test?

What's going on here?  Is this "Get a conviction with mediocre police tests?"

Remember, these are not defense attorney fairy tales.  This is our federal government's own manual from the National Highway Traffic Safety Administration on DUI Detection and Apprehension.

We know how this saga ended that night for Robert.  He was put in cuffs and told he was too drunk to drive or words along those lines.

After agreeing to do those 3 "tests" along the freeway rampe doing well by any objective standard, and apparently "failing", Robert smartly chose not  do the 4th and final "test" - blowing into the police department's breath test machine.  With accuracy rates as bad as those in the roadside tests, it's anyone's guess what the State of Ohio permits for permissible accuracy ranges in the DUI breathalyzer.  No wonder we hear of police officers, lawyers, and judges refusing to blow into breathalyzer machines.

Robert was found "Not Guilty" at trial.  His case lasted nearly 6 months.  He went to over 5 different times.  He incurred legal fees and he missed work but as he told us, "You guys are worth every penny".

If you or someone you know would like to consult with our law firm for representation in a DUI case, call 614-481-7215.  Mondays - Sundays, 8:00 a.m. - 10:00 p.m.

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