Criminal Law – DUI
According to the National Survey on Drug Use and Health (NSDUH), 50.1% of Americans consider themselves to be drinkers and 8.2% of the population admits using illicit drugs in any given month. What does this mean, in a country where 86% of people drive (according to a study by NBC)? NSDUH wondered the same thing. Putting two and two together, the survey began asking questions about driving under the influence of alcohol and illicit drugs. Here is what they found: 32 million people admitted to driving while intoxicated, while 11 million admitted to driving while under the influence of some illicit drug.
DUI, DWI, and other Acronyms
In the state of Indiana, OWI is the general umbrella term for operating a vehicle while under the influence of some drug. DUI is a more specific term which refers to driving while under the influence, while DWI is an even more specific term for driving while intoxicated (referring only to alcohol).
Have you been arrested for a DUI or DWI recently? Call Alex Mendoza, criminal defense attorney, to set up a consultation today.
What Counts as Operating While Under the Influence?
According to Indiana statute, if a person is driving a vehicle with a .08% blood alcohol content per 100 milliliters of blood or per 210 liters of breath, they are committing a Class C misdemeanor. If they are driving with a .15% blood alcohol content, they are committing a Class A misdemeanor. Also within this statute, operating a vehicle with a Schedule I or Schedule II drug (or metabolite) in a person’s body is considered a Class C misdemeanor (I.C. 9-30-5-1, IN ST 9-30-5-1).
If you have been arrested for a DUI or DWI, do not take it lightly. Call criminal defense attorney Alex Mendoza to set up a consultation.
The DUI Detection Process
Based on the 2007 NHTSA ARIDE manual, the DWI detection process is composed of three phases. Each of these phases consists of two tasks and one decision.
Phase I – Observe the Vehicle in Operation
The first task in this phase is to observe the vehicle in motion. During this time, officers typically look for reasonable suspicion to stop the vehicle. Things that are reasonably suspicious of driving while under the influence include straddling the center line, illegal turns, drifting, extremely slow driving, erratic driving, frequent braking, and stopping for no reason. Of course, reasonably suspicious driving is not limited to these behaviors. These are just some good examples. After observing the vehicle in motion, the officer faces a decision: Is there reasonable suspicion to pull the vehicle over? If no, he proceeds to the second task, which is to continue observing until he is confident there is no reasonable suspicion. If the answer is yes, he proceeds to pull over the vehicle and moves on to Phase II.
Phase II – Personal Contact
During this second phase, the first task of the officer is to observe and interview the driver of the vehicle face-to-face. During this task, the officer is taught to take in verbal as well as physical information. This means that demeanor, clothing, what the car smells like, physical appearance, and a lot of other things will be taken into account. Here the officer must make a decision: Should he conduct a field sobriety test? Is there need for further investigation? If the answer is yes, the officer will ask the driver to step out of the vehicle. The last task of this phase, then, is to observe the drivers exit from the vehicle as well as the way they walk.
Phase III – Pre-Arrest Screening
This phase consists of a field sobriety test before an arrest is made. The field sobriety test is a psychophysical test that consists of three parts: the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. There are some situations in which a test should not be done, for safety reasons. These include: when the person is too impaired to do it safely, when the person is injured, when they refuse, or when there are not safe conditions (such as weather or terrain conditions). During the field sobriety test, the officer should be making notes of any clues or observations. Clues are things that impaired persons will do because they are impaired, usually not following directions or demonstrating an inability to perform basic functions. Usually, two or more clues indicates impairment. After the test is finished, the officer has a decision: Is there sufficient probable cause to arrest the person for DWI? If not, the driver should be released. If probable cause exists, the second task is to arrange for or administer any biological testing that is deemed appropriate.
Were you arrested for a DWI? Call Alex Mendoza, criminal defense attorney, to see what he can do for you.
More about the Field Sobriety Test
Horizontal Gaze Nystagmus
Anyone with glasses should be instructed to take them off. This test is looking for the involuntary jerking of the eyes as they gaze towards the side. This is caused by alcohol, inhalants, depressants, and anesthetics. This is tested by a typical follow-the-tip-of-my-pen kind of test. Before the test is performed, however, the officer should check to make sure both pupils are equal in size. If they are not, this can indicate either a head injury or a mental illness. Clues for this test include: the inability to smoothly follow the pen, distinct jerking of the eyes when they are at maximum deviation (this jerking must last longer than 4 seconds to be abnormal), and jerking of the eyes that begins before a 45 degree angle is reached.
Walk and Turn
The walk and turn test requires nine heel-to-toe steps. The most important thing about this test is that the instructions call for the person to be able to actively listen and keep control of their body at the same time. An impaired person can usually only do one or the other. The clues for this test include: beginning before the instructions are finished, stopping while walking, breaking heel-to-toe contact, stepping off the line, using arms to balance, turning improperly, and taking the wrong number of steps. However, if a person steps off the line more than once, it is still only considered one clue. People aged 65 or older have a significantly harder time with this test, due to their age. Anyone with heels on should be given an opportunity to remove them.
The one leg stand test requires the suspect to stand with their leg 6 inches off the ground, straightened, for 30 seconds. Clues for this test include: swaying, using arms for balance, hopping, and putting the foot down.
In general, the field sobriety test is 93% accurate at indicating a blood alcohol content of .10% or higher.
Other observations that an officer can make during a pre-arrest screening are pupil size, lack of convergence (LOC), and Romberg Balance. These will usually be done at the same time as the field sobriety test. Pupil size is an observation based on the fact that most drugs will either constrict or dilate pupils. For example, stimulants, hallucinogens, and cannabis will dilate pupils while narcotics will constrict pupils. Depressants, anesthetics, and inhalants have no effect on pupil size.
The lack of convergence test is testing for the inability to cross one’s eyes. There are no clues for this, but the officer will mark whether a lack of convergence was present or not present to be used as evidence.
The Romberg Balance test is used to test the suspect’s ability to estimate the passage of time. The person will be asked to tilt their head back, close their eyes, and estimate the passage of 30 seconds. During this time, the officer will be looking for tremors or swaying. If 90 seconds passes, the officer should stop the test.
Do you feel that you were wrongfully arrested for a DUI? Call Alex Mendoza, criminal defense attorney, to find out what can be done.
Breathalyzers and blood samples are examples of biological testing that may be used in determining the impairment of a driver. If an officer requests a chemical test of a suspect, the suspect is required under the Indiana implied consent law to consent to the test. The implied consent law basically states that consent is a condition of having a driver’s license in the state of Indiana. If the suspect does not consent to the test, their driver’s license will be suspended. Upon refusal of the chemical test, the officer must inform the suspect that their license will be suspended if they do not comply (IC 9-30-6-1). The test, whether it be a breathalyzer test or a blood sample, must be conducted within three hours of the officer requesting the test (IC 9-30-6-2).
However, there are some restrictions to the breathalyzer, specifically. The director of the state department of toxicology must certify all breathalyzer equipment and administrators. If a breathalyzer has not been certified in the last 180 days, it is inadmissible in court. If an officer is not certified to administer the breathalyzer, it is inadmissible in court also (IC 9-30-6-5; Guy v. State, 823 N.E.2d 274, 275–276 (Ind. 2005); Baran v. State, 639 N.E.2d 642, 645–646 (Ind. 1994); Short v. State, 962 N.E.2d 146, 149 (Ind. Ct. App. 2012)).
An officer can obtain a warrant for a blood test if the person refuses to give a blood sample. The officer can also conduct a warrantless blood test if exigent circumstances arise. In this case, exigent circumstances would mean that the evidence was in danger of being destroyed. Blood alcohol content diminishes constantly after the person discontinues drinking. Because of this, it would be impractical to obtain a warrant because the person’s blood alcohol content would already be diminished (Frensemeier v. State, 849 N.E.2d 157, 162 (Ind.Ct.App.2006)).
Were you the victim of a faulty breathalyzer? Were you forced to take a blood test? Call Alex Mendoza, criminal defense attorney, to set up a consultation and see what he can do for you. 219-200-2000.
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