How I Used Standardized Field Sobriety Tests to Defend a DUI – And Won

Standardized Field Sobriety Tests (SFSTs) are touted as the gold standard for detecting an impaired driver. When I do a jury selection, I always ask the question, “who here believes that if somebody can’t pass a field sobriety test, they must be drunk?” I almost always get a strong majority of people who raise their hands. Even defense attorneys fall for the propaganda. My friends over at Brighton Lewis offer courses on SFSTs and offer expert testimony that can be used to question or even completely negate the results of these tests. Even they admit that it can be difficult to convince attorneys to fight a case where the defendant “fails.” However, they, along with others in the know, understand that there are issues with SFSTs and many times they can be used to win a DUI case rather than as a conviction tool.

Before I give you some tips on how to successfully use the performance on SFSTs against the prosecution, let me first clarify what we’re talking about when we say SFSTs. They are a set of three tests that were developed by the National Highway Traffic Safety Administration (NHTSA) as a way to assisst officers at roadside in determining if a person may be impaired. There have been validation studies that test the accuracy of these tests, but they have only been validated for alcohol detection. They have not been validated to detect impairment as a result of drugs. SFSTs are not meant to be used to determine if a person is drunk; instead, they’re supposed to be used as an investigative tool to help decide if further investigation or testing would be warranted. This is not always how they’re used, though.

The three SFSTs validated by NHTSA are the Horizontal Gaze Nystagmus (HGN), Nine-Step Walk and Turn (WAT), and One-Leg Stand (OLS). The HGN is a test where the accused is required to follow some apparatus (pen, finger, etc.) with nothing but his eyes; the officer examines the eyes for nystagmus (involuntary jerking) at various points during the test. There are 6 possible clues; if an accused shows 4 or more, it is indicative of impairment. During the WAT, the accused walks nine heel-to-toe steps on an imaginary line, turns, and walks nine heel-to-toe steps back. There are 8 possible clues; 2 or more clues are indicative of impairment. The OLS requires the accused to stand on one leg while counting for thirty seconds; 2 or more clues indicate possible impairment. The information and clues gleaned from the tests are supposed to be used in conjunction with everything else the officer sees during his interaction with the accused to decide if the totality of the circumstances establish a belief that the driver may be impaired.The important thing to remember is that they’re an investigative tool and are not meant to be the only thing considered by the officer.

Although most people think the SFSTs can only be used to show that someone is drunk, I’m proof that they can be used to help exonerate a client as well. Last year, I had a case where the client was charged with DUI-General Impairment. This is the statute in PA that says that a person is guilty of DUI if he is substantially impaired by alcohol to the point that he cannot operate a motor vehicle safely. This is separate from the charge involving a person’s blood alcohol content (BAC is .08% or higher). The same techniques I employed can be used in cases involving BAC, as defendants are almost always charged under the General Impairment section as well. If there is a disconnect between the performance on the SFSTs and the BAC, the validity of the BAC number may be questionable. Also, as I discussed in a prior blog post, the results of the SFSTs can be used to challenge admissibility of evidence in a suppression hearing.

Tip number 1 – make sure there’s evidence of alcohol use. SFSTs are only validated for use when alcohol is suspected. If the police smell marijuana on your client and not alcohol, question the officer on why he would use an alcohol test on a suspected drug intoxication. If they only smell marijuana, or don’t smell anything at all and don’t have anything to suggest alcohol, that’s strike one  – there was nothing to indicate that alcohol was involved, and that is the only thing the SFSTs are validated to detect.

Also make sure that the tests are administered in the appropriate conditions and with the proper instruction. If there’s a dash cam video, WATCH IT! Make sure that what the officer says he saw is indeed what’s on that video. That’s your objective evidence. If anything on the video is different that the officer’s stated observations, you’ve got strike two – the objective video was very different from what the officers reported seeing.

Because I’m a Practitioner and Instructor of SFSTs, I know exactly how the tests were to be administered and what clues the officers should have seen. I first question the officer about what clues he saw. Once he is boxed into his answers, I showthe video to the jury/judge on the giant screen then go through the video second by second. I would ask questions such as “this is where you saw [insert clue here].” I would then say something like “we can agree that on this video, [the accused] isn’t [insert clue here].” If the clue clearly wasn’t seen on the video, the officer looks ridiculous and is forced to agree that it wasn’t on there. I do this over and over for each clue on each test. Going through the tests step-by-step while viewing the objective evidence is extremely effective. Strike 3- by the end, the officer loses all credibility.

Of course, you may be able to challenge other things. Maybe your client’s driving wasn’t bad. Maybe he was cooperative, coherent, and able to interact with the officers normally. Maybe he did almost everything we would expect from a sober driver. Maybe the officer was unreasonable or even combative with your client. But the ability to completely negate the performance on and testimony about the SFSTs is what really proves to the jury that this person was not substantially impaired to the point that he could not safely operate a car.

Of course, your job will be made easier if you have a dash cam video. However, if you don’t know how to correctly administer and score the test, the video is useless. The SFSTs come up in almost every DUI case; if you’re going to defend them, this knowledge is absolutely vital. If you don’t have a video, you can still challenge the tests. Some of the issues that regularly come up are: 1. The SFSTs are administered on someone who should be medically precluded from performing the test; 2. The accused is not properly instructed on how to perform the test; and 3. The officer doesn’t correctly score the test, either because he counts a clue that isn’t an enumerated clue by NHTSA, or because the officer scores clues more than once.

 Knowledge is power. Knowledge of the history of SFSTs, their purpose, and their administration can help you successfully challenge a DUI case.

“60 Minutes”: What You Didn’t See

In October, I appeared on an episode of “60 Minutes” titled “Disability, USA.” The story discussed the Social Security Disability (SSD) system, its problems and inefficiencies. Having worked at Binder and Binder, the nation’s largest SSD firm, I was in a prime position to provide a firsthand account of how inefficient and broken the system truly is. My interview with the anchor, Steve Kroft, lasted over an hour. That hour was whittled down into a segment lasting approximately 5 minutes. Besides me, they had interviewed Senator Tom Coburn and two Administrative Law Judges (ALJs), Marilyn Zahm and Randy Frye. Those interviews and a report on Eric Conn, an SSD/SSI attorney had to fit into a 15-minute segment, leaving much of what I had to say on the editing room floor. Lucky for you, I get to give you a behind the scenes look at what didn’t make it into the segment as aired.

First of all, let me start by saying that, despite comments on other blogs, the point of the interview was not to slam people who are on disability or say that most people are not deserving of it. I had plenty of clients who should have been granted disability and were denied. Although I said that half my clients may not have been deserving of disability, I also said that I didn’t blame them. I also told Mr. Kroft that my firm took on every case that called the office with no screening process to determine if the client had a viable claim. I called it a legal factory because it was a numbers game. There are certain ALJs that statistically grant the majority of cases in front of them. If Binder took on enough cases, eventually they would get those weaker cases in front of the favorable ALJs and disability benefits would be granted. There was nothing to lose, as travel expenses could be reimbursed by the government and clients were responsible for paying for medical records and other evidence. Also, even though I may not think they deserved disability, it’s not up to me. It’s up to the ALJ. If the ALJ granted them disability, legally they deserved it.

One thing we discussed in the interview was how the majority of the public doesn’t realize or understand the high threshold that has to be met in order for disability to be granted. To be granted disability, you must have a physical or mental ailment which prevents you from doing ANY TYPE OF WORK on a full-time basis for more than a continuous period of one year when provided reasonable accommodations. The statute doesn’t take into account whether or not an employer will actually hire you or the kind of work you’ve done in the past (unless you are over 50, since other rules kick in at that point). It doesn’t take into account the current job market either. The question the ALJ has to answer is, if you are hired for the job, and the employer gives you reasonable accommodations and a ride from door-to-door (since many people claim they can’t work because they don’t drive), is there ANY job out there that you can perform? If they answer is yes, you do not qualify for disability. It’s actually an extremely difficult standard to meet and there’s almost always an expert for the government that says there are jobs out there that a claimant can perform.

This high threshold is one of the reasons so many people apply for disability. The economy is so bad that disability often becomes a last ditch effort for anybody who has any type of physical or mental ailment which makes it very difficult, but not impossible, to work. In an economy like this where so many people are vying for every job out there, employers have the pick of the litter when hiring new employees – they can be picky and discerning. Imagine this scenario: 5 people, all of their qualifications equal, apply for a job. One person out of five tells the interviewer he has an ailment and needs some sort of accommodation to be able to work. There are 4 other qualified people who can come in and do the job without any assistance or “special treatment” from the employer. Who do you think will get the job offer? Eventually, that one person is going to become desperate and have to find another option to make money just to survive. The most viable option available, in their mind, is SSD.

One of the biggest problems with the SSD/SSI system is the gigantic backlog of cases. If I had a client whose hearing was scheduled within a year of their initial application, I considered that a fast case. There were many times people were waiting a year-and-a-half up to two years for their hearing. Keep in mind that in the meantime, they weren’t working and had no source of income save for a fraction of people who were able to go on welfare and receive a whopping $200 per month. If I were to miss one paycheck it could be catastrophic; I can’t even imagine being in a position where I had no source of income for a minimum of a year. And many of these people had children!

Another huge problem is the inconsistency among ALJs. There were some ALJs who had a reputation for granting almost everything (and their stats showed 80-90% grant rate), while there were other judges who we knew would deny a case no matter how strong it was. There were judges who refused to grant cases that were solely mental health cases simply because they believed mental health was not disabling despite the fact that the SSD statute specifically listed several mental health conditions as disabling. In fact, one judge came right out and told me, on the record, that mental health conditions are not disabling. Some judges would see how strong a case was and grant it without the need for a hearing, while other judges required the client and attorney to show up just to tell us the case was granted, even though they could have granted it without the need for a hearing. I can’t tell you how much time and resources are wasted as a result of these inconsistencies or the failure to follow basic regulations.

One solution the Social Security Administration has come up with to help move the system along and help claimants receive benefits is the Non-Attorney Representative (NAR) program. NARs are people who take an admittedly difficult test on the regulations and rules related to the SSD program. A person must have a Bachelor’s degree and pass the test with a 70% in order to become a NAR. In my opinion, NARs are essentially permitted by the SSA to practice law without a license. They do everything an attorney does: file motions, argue cases to the judge, question witnesses, and receive payment for cases. In any other system, this would be lawyering. It doesn’t help that clients often go to the big firms believing they’ll get an attorney but then are assigned a NAR (remember, NARs are great for big firms as they can be paid lower salaries than attorneys). Don’t get me wrong, NARs are usually extremely intelligent and capable of handling an SSD/SSI case. However, it never sat well with me that a non-lawyer was doing the same job as me and making legal arguments in the process.

I think the better solution is to make the system an adversarial one. Right now, claimants can be represented, but there is no one there to rebut their case or argue on behalf of the government. As a result, ALJs often become the adversary even though their role is supposed to be a neutral third-party decision maker. They often feel and act as though they are representing the government. I believe this probably contributes to much of the inconsistency in the rulings. An adversarial system would allow ALJs to move back into the third-party decision maker role. It would also allow for both sides to negotiate and possibly resolve the case without the need for a hearing which would help alleviate the backlog in the system. Having somebody represent the government could also help stem the tide of frivolous disability claims. Although it would initally cost money to hire these attorneys to represent the government, in the long term it should save tax dollars as it would make the system much more efficient.

This is the conversation that happened behind the scenes and didn’t make the cut. Your experience may have been different, but this is what I observed in representing close to 200 claimants. The system is broken. I don’t think it’s working in its current form. Too many people who deserve disability are denied, and too many people who don’t deserve it are granted. It’s inefficient and inconsistent. The solution isn’t simple, but at least “60 Minutes” started a discussion.

Animal Protection: Where Does Your State Rank?

Last week, The Humane Society of the United States (HSUS) released its Humane State Ranking, an annual list ranking states based on their animal protection laws, legislation and policy. HSUS looks at the existence and strength of laws in each of the following categories: animal fighting, animal cruelty, wildlife abuse, exotic pets, companion animals, animals in research, farm animals, fur and trapping, puppy mills, and equine protection. Within each category, HSUS lists a number of different laws. Each state gets credit if they have that law. States are ranked based on the percentage of animal protection laws currently on the books, legislation they’ve passed, and their policies regarding animals. Where does your state rank?

At the top of the list is California which earned a 74% and was recognized for passing a law banning the use of lead ammunition in hunting. This makes California the first state to ban lead ammunition, which wildlife eat after the hunt causing severe nerve damage, suffering and death. The lead can also contaminate the meat of the hunted animal. Oregon came in second with 65% and high marks for passing laws restricting the tethering of dogs. My home state, Pennsylvania, should take note, as an anti-tethering bill has been introduced but not voted on. Instead, individual municipalities have been passing their own anti-tethering laws, limiting the amount of time owners can leave their dog tied outside and instituting food and shelter requirements. Illinois comes in third with 64%, earning recognition for its strong animal cruelty laws and a ban on owning exotic animals as pets, among other laws protecting animals. Rounding out the top ten are Massachusetts and New York (61%), New Jersey (58%), Arizona (57%), Washington (57%), Colorado (57%), Virginia (56%), and Maine (56%).

Dishonorable mentions go out to South Dakota, coming in last place with 13%. South Dakota is the only state that doesn’t have felony penalties for egregious acts of animal cruelty and instead has some of the weakest cockfighting laws in the country. Not far ahead of them is Idaho, which gained a 20% thanks to its weak laws in all areas assessed by HSUS. Its felony penalties for egregious acts of animal cruelty saved it from coming in last. Mississippi also scored a 20% because of its weak laws and lack of felony penalties for cockfighting. The bottom of the list also houses North Dakota (23%), Alabama (25%), South Carolina (25%), Kentucky (28%), Utah (28%), Wyoming (28%), and Missouri (29%).

Pennsylvania had a respectable showing, coming in 12th place with 54%. Pennsylvania has strong animal cruelty and puppy mill laws and notably passed the cost of care law. In the past, when an animal was seized during the course of an abuse or neglect investigation, the already cash-strapped animal shelter where the animal was housed was responsible for paying any medical bills along with the cost of providing ongoing care for the animal. Now, the person convicted of abusing or neglecting the animal will be required to reimburse the shelter for the cost of care. On tap for Pennsylvania in 2014 is the bill that would end barbaric live pigeon shoots. PA remains the only state in the country that allows this cruel practice and a bill banning it has been in legislative limbo for over two decades. There was some movement on the bill in 2013 and the hope is that the Senate will finally act on it this year. There is also legislation pending which would criminalize possession of animal fighting paraphernalia; give money to help investigate gambling associated with dogfighting; require pet stores to disclose information about the dogs they’re selling, including breeder information; and of course, the anti-tethering bill. There are plenty of opportunities for PA to move up the list in 2014.

This is the fifth year HSUS has released its Humane State Ranking. It’s a great tool for people to use to see how strong or weak their state’s animal protection laws are. If your state is near the bottom, call your legislator and tell them it’s time to make animal protection a priority. If your state is near the top, thank your legislators! The more active you are, the more you can help animals.

Domestic Violence Laws: PA vs. NJ

During my time at Rutgers School of Law-Camden, I was very active in the Domestic Violence Project and the Domestic Violence Clinic. I provided legal information to victims of domestic violence in Camden County, NJ who were trying to obtain a Final Restraining Order (FRO) and  represented clients in their court hearings. I quickly became used to New Jersey’s DV law and the protections it gave to victims. Having had personal experience with Pennsylvania’s DV system, I already knew that their protections were inferior to NJ. I never realized how inferior until I returned to PA.

I’m going to focus on final orders in this post. In NJ, when a person wants to get protection from somebody who is abusing them, they obtain an FRO. The PA equivalent of this is a Protection From Abuse order, or PFA. Each state has their own statute that specifically addresses what someone needs to prove in order to get one of these court orders. They’re similar but have a couple significant differences.

NJ requires a 3-step assessment. First, the victim and abuser must have one of the following relationships: current or former household members (this includes roommates), spouse or former spouse, dating relationship, or have a child in common. Second, the abuser must have committed at least one of the following offenses: homicide, assault, terroristic threats, kidnapping, criminal restraint, sexual assault, criminal sexual contact, lewdness, false imprisonment, criminal mischief, burglary, criminal trespass, harassment, or stalking. Finally, the victim needs to show an immediate danger of additional abuse.

PA has a fairly similar law. Once again, you have to show one of the following relationships: family or household members, sexual or intimate partners, or have a child in common. The abuser must have committed at least one of the following offenses: inflicting bodily injury, rape, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, incest, false imprisonment, placing another in fear of bodily injury, physical or sexual abuse of a child, or stalking or harassment which puts the other person in fear of bodily injury.

One of the key differences between the two states’ statutes is that PA requires that the victim be in fear of bodily injury or that the offense involve some element of bodily injury. NJ does not require this. NJ takes it a step further and includes acts which serve no purpose other than to seriously annoy the victim, such as repeatedly sending large amounts of text messages, continuing to contact the person after being told to stop, and using Facebook as a means to harass or intimidate the victim. These all fall under the general category of mental or emotional abuse. PA has a separate statute to try to prevent this type of behavior, but it doesn’t provide the same protection as the domestic violence law. I still remember sitting in court in PA and listening to a woman who had left her husband tell the story of how the man sent her hundreds of text messages despite being told to stop. The judge’s response? “Well, that’s harassment, that’s not domestic violence. Tell me what he did that’s domestic violence.” I think my jaw hit the floor.

It may not seem serious, but the main characteristic of an abusive relationship is control. Repeated contacts like this are often used by the abuser as a means to continue to control the victim even after the relationship has ended. It’s also a way to continue psychological abuse by showing the victim that even though they’ve left the relationship, the abuser will still be in their life. Physical abuse is not the only way an abuser victimizes somebody and PA has failed to recognize this by requiring bodily injury or a threat of it in order to obtain a PFA.

The other main difference between the two laws is the length of time a protection order can last. A PFA is good for a MAXIMUM of 3 years, which means it could theoretically last a shorter amount of time. NJ provides protection under an FRO for life. What this means is even in the most serious cases of abuse, victims and abusers in PA are aware that the PFA will eventually come to an end. The PFA can be extended, but that requires the victim to go through the whole process of telling their story and facing their abuser again which can revictimize her/him. NJ allows the FRO to stay in place until the defendant petitions the court and proves that it’s no longer necessary. In my experience, this seldom happens.

So why doesn’t PA take NJ’s lead and strengthen its DV laws? I had the opportunity to ask a judge who presided over family court and PFA hearings this question, and essentially it comes down to guns. Having a PFA or FRO against you means that you cannot own or possess any type of firearm, including ones used for hunting. The PA legislature and judges are hesitant to grant orders or change laws that would make it more difficult or impossible for a person to have a firearm. According to this judge, the right to bear arms is more important than protecting a victim of domestic violence. Even as a strong believer in the Constitution, I found that assessment disconcerting.

I think PA needs to take note of what its neighbor is doing.   The PA State Legislature should follow NJ’s lead in protecting victims of domestic violence. We all need to realize that physical abuse isn’t the only kind of abuse and expand the law to include those acts meant to control and demean. Only then can victims believe that it’s actually possible to safely leave an abusive relationship and move on with their lives.

I Want a Trial, But…

This blog has several goals – to make people better advocates, to provide legal information in a way people can understand and use, and to make people more informed about the justice system. Sometimes, that will involve me writing a post just to discuss things I witness in court or challenges I run into. This is one of those posts.

My job as a criminal defense attorney is to ensure that my clients’ Constitutional rights are always protected. Defense attorneys are tasked with making sure the government is following what the Founding Fathers intended for this country.  That’s really the ultimate goal – protect the Constitution. It’s a lofty goal, indeed, but a noble one. One of the most important rights we advance is the right to trial by jury.

Everybody in this country has a right to a trial by jury, thanks to the Sixth Amendment of the United States Constitution. In the state where I practice, Pennsylvania, this right is also extended through Article I, Section 6 of the Pennsylvania State Constitution. Although there are some exceptions where a person only has a right to a bench trial (trial in front of a judge rather than one in front of a jury), the fact still remains that if you’re charged with a crime, you have a right to some sort of trial. But what happens when citizens are punished for exercising this right?

There’s a distrubing trend I’ve noticed. People who exercise their right to a trial are then punished at the time of sentencing. It’s been happening at an alarming rate, from what I can see. A defendant wants to exercise their right, they refuse to take a plea deal, take the case to trial, lose, and then at the time of sentencing, the fact that they went to trial is used against them. How? Well, the DA argues that the fact that the defendant took their case to trial rather than plead guilty is evidence that they aren’t taking responsibility for their actions, therefore they should receive a stiffer sentence.

I’ve seen judges agree with this sentiment over and over again. Even in cases where the judge admits that the defendant had a viable defense, the act of requesting a trial is used against the defendant and a much harsher sentence is handed down. I’ve also seen the harsh sentence handed down when the defendant did everything he or she could to turn their life around – work a steady job, receive alcohol treatment, take care of their family, etc. All because the defendant exercised his constitutional right to a trial by jury.

So, where do we go from here? Should this dissuade you from taking cases to trial? The answer to that is, in my opinion, simple – absolutely not!! It’s important to do two things when facing this issue. First, determine if you have a valid legal defense, something you can hang your hat on. If you don’t, chances are the threat of a harsher sentence isn’t worth the risk. Second, get the client involved. Explain your strategy, the legal defense and how strong you think it is, and make sure they know that if they go to trial and lose, there’s that possibility of a harsher sentence. You shouldn’t try to scare them, but it’s important they know all the pros and cons of going to trial so they can make an informed, educated decision. At the end of the day, it’s the client’s life, and they need to make the ultimate decision whether or not they want to exercise their rights.

Why I Never Waive a Preliminary Hearing

Okay, never may be a bit misleading, but it isn’t completely inaccurate. It’s very rare that I will waive a preliminary hearing, and there are very specific circumstances for doing it – waiver is required for admission into ARD, there’s a plea deal which requires the client to waive, or there’s some other direct benefit to the client. Before I tell you why I don’t waive preliminary hearings, let me first explain what their legal purpose is.

A prelim, as we call it, is essentially an evidentiary hearing. The prosecution merely has to show a “prima facie” case against a defendant. It’s an extremely low standard. All they have to show is that there’s some evidence that a crime was committed and more likely than not, the defendant is the person that committed the crime. Put a little differently, the judge has to decide if the allegations match the crime charged. Defendants and their counsel are not entitled to discovery until after the prelim; hence, we don’t get to see evidence until the case makes its way to the trial court. At the preliminary hearing, judges generally won’t let you get into issues of credibility or suppression, and most cases are bound over for trial.

Despite the low threshold and the tight constraints on what can be asked, the prelim is my chance to gather information on the case and begin setting the stage for suppression and trial. While I can’t get into issues of credibility or suppression, I can lay the groundwork to be able to challenge these things going forward. There have been many times where I got testimony about the incident that I was then able to use in a suppression motion. I also tape record all preliminary hearings and have them transcribed. That transcript becomes important at trial, because if any testimony changes from the prelim I can use it to challenge the witness’s credibility. You can still file suppression motions and challenge credibility even if you choose to waive your prelim. However, you are limited in your information and may not be able to make as thorough or strong an argument.

As an example, let’s look at a typical DUI case. Before the prelim, we receive a Criminal Complaint and an Affidavit of Probable Cause which gives a brief summary of why the person was arrested. Most officers administer Standardized Field Sobriety Tests (SFSTs) and the defendant’s performance forms the basis for probable cause to arrest. What the affidavit often doesn’t include is details about how the defendant performed on the SFSTs. At the prelim, I can question the officer on what clues he or she saw on the SFSTs. If they don’t see enough clues, I can use that as a reason to challenge the arrest. Without asking these questions at a prelim, I may not have the information I need to adequately challenge the probable cause to arrest, and my chances of winning on a suppression motion are seriously diminished.

Simply put, information gathered at a prelim could ultimately help you win your case. You’re going to run into resistance, both from judges and District Attorneys who believe that you should waive simply because the case will be bound over for trial anyway. Don’t let this deter you. Defendants have a right to a prelim. Absent something requiring you to waive (ARD, plea deal, etc.), exercise this right! It could mean the difference between winning your case and spending time in prison.