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When arrested for a DWI, a motorist will be asked by the investigating police officer to perform a series of tests which are commonly known as SFST, or standardized field sobriety tests. The three tests that are generally required are the walk and turn, the one leg stand, and the horizontal gaze nystagmus, also referred to as HGN. This post will focus on the HGN.

Nystagmus is an involuntary jerking of the eyes, and can be caused by a number of factors, some having to do with the ingestion of substances or alcohol, but some due to medical reasons. For example, nystagmus can be due to a brain injury or tumor, an inner ear disorder, or impairment due to use of alcohol or drugs. The HGN is performed by the officer using a penlight or other stimulus, and the stimulus is placed just above eye level and 12-15 inches from the nose. The officer then requests that the person follow that stimulus with their eyes, while looking for evidence of nystagmus.

According to the National Highway Traffic Safety Administration Manual, if the nystagmus test is failed by the motorist, (four or more clues are seen) this is proof that the driver has a blood alcohol concentration of .10% or above in 77% of cases. The HGN is deemed to be the most reliable of the SFST’s, with the walk and turn being 68% reliable, and the one leg stand at 65% reliability.

As with other field sobriety tests, the design of the “divided attention” tests is twofold: to determine coordination and whether the motorist can follow directions, checking both at the same time. The theory is that if the person is impaired, they may be able to follow instructions, or perform the test, but not both. The HGN is not a true coordination test as are the walk and turn and one leg stand, which involve balance, concentration, and coordination, since HGN is in fact a physical reaction which cannot be controlled by the person.

The officer gives the following instructions in sum or substance: “I’m checking your eyes. Keep your head still and follow the stimulus with your eyes only. Follow the stimulus until I tell you to stop. Have you understood all of the instructions I’ve given you?”

The three parts to the nystagmus test are:

The person is asked to follow the stimulus first with each eye, and the officer is looking for the clue of what is known as “lack of smooth pursuit”, meaning that the eye begins to jerk as it is following the stimulus to the left and right;
The person is required to follow the stimulus to what is known as “maximum deviation”, or as far to the left and to the right as they can. After four seconds, if there is distinct nystagmus, this is the second clue of intoxication according to the test;

The person follows the stimulus and nystagmus begins at a 45 degree angle. This is the third clue purporting to establish intoxication. Supposedly, the more impaired the person is, the sooner the nystagmus will be noticeable.

The HGN is not evidence of the BAC (blood alcohol concentration) of the motorist, but rather is offered by the prosecution as proof of impairment, along with the other field sobriety tests and chemical test results if a breathalyzer, urine or blood was taken from the driver.

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When you are stopped for a New York DWI, the investigating officer is required to make an initial determination whether your driving is impaired by alcohol, drugs or a combination of the two. The initial basis for the traffic stop is premised on whether the officer has a reasonable suspicion that the motorist is impaired due to erratic driving, a specific traffic infraction, or observations that the driver is slumped in his or her seat, for example.

The officer will then observe the manner in which you stop your vehicle after you are notified to pull over—was it jerky, a short stop, or did it take you a long time to come to a stop? Other observations at this time might include how far you stopped from a curb, striking the curb, or moving to the side of the road in a haphazard fashion. When the officer requests that you exit your vehicle, there are three generally recognized standardized field sobriety tests (SFST) which you will be asked to take. Field sobriety tests are in essence divided attention tests, meaning that they are designed to determine if you can follow directions as well as perform tasks which require balance, coordination, and clear vision, among other things.

The three standardized field sobriety tests are the walk and turn, the one leg stand, and the horizontal gaze nystagmus. The theory is that these tests, either individually or in conjunction with each other, will correctly determine which drivers are impaired by alcohol or drugs. According to the National Highway Traffic Safety Administration (NHTSA), the HGN correctly determines in 77% of cases if a driver has a BAC of 0.10% or above, the walk and turn is accurate in 68% of cases, and the one leg stand correctly predicts 65% of intoxicated drivers.

In this article, we will focus on the walk and turn. The two stages of this divided attention test are the instructions, followed by the walking section. For the instructions, the driver must stand with his/her feet in a heel to toe position, with their arms at their sides, and listen to the instructions. The person must keep his/her attention divided between remembering the instructions and keeping their balance and staying on the line.

The instructions are to walk 9 steps heel to toe on a designated straight line, without using the arms for balance, and counting the steps aloud, and then use the back foot to make small steps to turn around while keeping the front foot on the line, and then walk 9 steps along that same line, again counting the steps and not using the arms for balance. The walking segment combines the balancing of walking heel to toe on a straight line and turning on the back foot, along with the memory requirements of remembering how many steps they took and how to perform the turn.

To be blunt, even people with good balance who have no alcohol in their system could have difficulties with the walk and turn test, particularly if they have physical disabilities, or have vertigo or other inner ear problems. Additionally, although the officer is required to conduct the test on a flat, dry surface, away from the cruiser’s flashing lights, and away from traffic, which could be distracting, frequently these requirements are disregarded by the officer for the sake of expediency.

The key to passing this test (which almost never occurs based upon the reports of these tests prepared by local police officers) is that the person must avoid the following:

Not being able to maintain balance while listening to the instructions;
Starting too soon;
Stopping while walking the nine steps;
Stepping off the line while walking;
Not maintaining heel to toe;
Using arms to balance;
Losing balance on the turn or doing the turn wrong;

Taking an incorrect amount of steps.

If the person falls off the line 3 or more times, loses his balance, can’t remain on the line, or can’t compete the test for any other reason, they will fail the walk and turn.

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When you are arrested for a New York DWI, chances are very good that the officer who arrested you received his training at the police academy, and that that training involved classroom study of the National Highway Traffic Safety Administration (NHTSA) manual in DWI detection and standardized field sobriety testing (SFST).

Before a police officer can stop your vehicle on suspicion of a DWI, he must have “reasonable suspicion” to believe that you are operating the vehicle while intoxicated. In New York, driving while intoxicated is established if your blood alcohol concentration (BAC) is 0.08% or above. Generally, reasonable suspicion can be based upon a moving violation, equipment violation, expired registration, unusual driving, or alcohol/drugs in your car.

There are numerous examples of either moving violations or erratic driving that are likely to get a motorist pulled over on suspicion of DWI. Weaving between lanes, or even moving back and forth within the lane is one example. Straddling the lane line, or turning with a wide radius are others. Stopping abruptly or at an inappropriate location, such as well before the red light (or just after the light) are other red flags for the officer.

Driving without headlights at night or with broken tail lights are likely to get an officer’s attention quickly, as are inappropriate behaviors such as throwing objects out of the vehicle, gesturing erratically, slouching in your seat or having your face close to the windshield.

Once you observe the flashing lights from the police cruiser and are required to pull over, be aware that everything you do is being scrutinized along a checklist. The officer is noting how you stopped the vehicle: was it jerky, abrupt, too far from the curb, striking the curb, or in some other manner abnormal? When the officer approaches the vehicle, he or she will be observing how you open the door or open the window, and then will ask for the license and registration. Special attention is paid to how you obtain the documents–are your fumbling with your wallet or having difficulty getting papers from the glove compartment? When the officer asks questions, he or she is noting whether you repeat the questions or respond in a slurred or other unclear fashion. Not surprisingly, the officer will be trying to detect if you have an odor of alcohol emanating from your body or on your breath.

Frequently, you are then asked to step out of the vehicle, and once again, you are on display. Are you swaying, staggering or having difficulty with your balance? Did you use the door or other part of the vehicle to stabilize yourself or maintain your balance? If the officer suspects based on his observations to that point that you are intoxicated, it is at this time that you will be asked to take what are known as standardized field sobriety tests, which generally speaking, are the walk and turn, HGN (Horizontal gaze nystagmus), and the one leg stand. We will provide an analysis of these three tests in separate post, but in summary, the walk and turn is a test in which you are asked to walk nine steps heel to toe along a designated straight line, turn on the same line, and then walk 9 steps back heel to toe along that same line, without losing your balance and remaining heel to toe. HGN is a test in which the officer holds either a stimulus (a pen, for example) 12-15 inches in front of the person’s nose, and moves the stimulus left and right, checking for involuntary jerking of the eyes, which is supposed to connote intoxication. Lastly, there is the one leg stand, in which the person is asked to hold one leg out 6 inches off the ground, and stand on one leg for thirty seconds without losing their balance, and without being able to use their arms for balance.

If you fail one or more of the field sobriety tests, it is likely that you will be asked to take a preliminary breath screening test, (which can show intoxication but is not admissible in Court) and ultimately, a chemical test of your breath, blood or urine, but the latter test will be conducted at the precinct. We will also discuss the chemical test in a separate post.

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On September 9, 2011, 51 year old Bernard Molloy, an aide with the Westchester County Board of Legislators, was arrested by the New York State Police on Route 202 in Cortlandt Manor and charged with DWI. Apparently, a breathalyzer test conducted at the precinct subsequently revealed a blood alcohol concentration (BAC) of 0.17%. The legal limit for DWI in New York is 0.08%, and an aggravated DWI can be charged if a driver has a BAC of 0.18% or above. The aggravated DWI charge was first instituted in 2004 under Section 1192 (2a) (a) of the Vehicle & Traffic Law.

Mr. Molloy was arraigned in Cortlandt Town Court on September 16, 2011 on the 9/9/11 DWI charges, and pled not guilty. The problem is that records show that a year earlier, in May of 2010 to be exact, he pled guilty to another DWI charge following a minor accident on the Bear Mountain Parkway in Cortlandt, just west of Route 202. On that initial charge, Molloy pled guilty to a misdemeanor DWI and was sentenced to a one year conditional discharge, a fine and discharge of $900.00 in total, and a six month license suspension.

The issue for Mr. Molloy now is that he has been charged with a second DWI within 10 years, and under the Vehicle and Traffic Law Section 1192, he must be charged with a felony DWI. Although Molloy has a further Court date on October 21, 2011 in the Cortlandt Town Court, local Courts such as Cortlandt do not have jurisdiction of felonies, so the case will be transferred to the Westchester County Court.

Further, Mr. Molloy is now facing the stark reality of the following as a result of an E felony DWI charge under Vehicle and Traffic Law Section 1192: A probable sentence to five years probation rather than a conditional discharge, in which the Probation Department will have involvement in the decision when he can drive again; the requirement to install and maintain at his own expense an ignition interlock device (IID) in his vehicle for at least one year, by which the vehicle will not start unless the driver has alcohol free breath; fines of at least $1,000 with a maximum of $5,000.00; the requirement to attend alcohol counseling though the Countywide program known as TASC (Treatment Alternatives For Safer Communities); the obligation to pay $750.00 in fines to the New York State Department of Motor Vehicles (NYSDMV), known as the “Driver Responsibility Assessment” (payable in three annual installments of $250.00 or all at once at the driver’s option); and attendance at one session of the MADD Victim’s Impact Panel. Molloy will also not be eligible to attend the New York State Drinking Driver Program, which permits drivers to obtain a conditional license to drive to and from work, because the program can only be attended once every five years, and Mr. Molloy would have been required to take this program in 2010 following his previous conviction. Thus, he is now not eligible for a conditional license.

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On July 27, 2011, former NBA star and ESPN analyst, Jalen Rose, was sentenced to a 20 day jail sentence for drunk driving. Back in March of this year, Rose was arrested after he lost control of his Cadillac Escalade on an icy road in Oakland County, Michigan, and the investigating officer determined that he was intoxicated. Rose admitted to drinking six martinis after he failed at least one field sobriety test. Normally, each mixed drink such as a Martini will increase the Blood alcohol concentration (BAC) of an individual by approximately 0.02%. At the scene, Rose registered a 0.088% on a preliminary breath test. However, although preliminary breath screening tests can give an officer probable cause to make an arrest for DWI, the results of these tests are not admissible in Court.

Only a chemical test of a person’s breath, blood, urine, or saliva have the scientific validity to be considered legally admissible evidence of intoxication. Later, a hospital blood test showed Rose had a 0.12% blood alcohol level, which would correspond well with having six martinis (6 x 0.02%=0.12%). Under Michigan law, as in New York, 0.08% is considered legally intoxicated. In May, 2011, Rose pled guilty to DWI, a misdemeanor.

The judge sentenced Rose to the maximum 93-day sentence in jail, and one year of probation. However, the judge suspended 72 days of the sentence, and Rose received credit for the night he spent in jail after the accident. Rose, who is known for his charity work, and has no prior criminal record, apologized to the Court, saying that the experience had “humbled and humiliated” him. Nevertheless, Judge Kimberly Small gave him the maximum jail sentence, and noted that there were “serious consequences” for driving while intoxicated.

Rose will likely be released August 18, 2011, with a two day reduction of his sentence for time served. After his release, Rose, who lives in California, will commence his probationary term with a report by mail to his probation officer.

If Rose had been convicted of a New York DWI, he would be facing a 6 month revocation of his driver’s license, fines and surcharges of $900.00, the requirement to be screened and evaluated for alcohol/substance abuse, attendance at a Victim Impact Panel sponsored by MADD, attendance at the Department of Motor Vehicles Drinking Driver Program at the conclusion of the criminal case, and the requirement to install and maintain an ignition interlock device in his vehicle for one year.

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In an ironic twist, Darryl Towns, former Brooklyn assemblyman and one of the proponents of Leandra’s Law, which strengthened the penalties for DWI cases in New York, has been charged with drunk driving and will likely be sentenced to some of the provisions he voted for in 2009 when Leandra’s Law went into effect. On July 3, 2011 at approximately 1:40 AM, Mr. Towns, New York State’s Housing Commissioner, struck a barrier along an exit ramp while merging onto the Hutchinson River Parkway in Mount Vernon. He apparently failed the three standard Field Sobriety Tests, including the walk and turn and one leg stand, and a chemical test was reported to reveal a blood alcohol concentration (BAC) of 0.16%, which is double the legal limit of 0.08% for a DWI charge.

Generally speaking, and with variations for men and women (men have more muscle and women more body fat), body size, food consumed, and type of liquor ingested, a BAC of 0.16%, if accurate, is likely due to the consumption of between approximately 8 and 10 drinks. The Westchester County District Attorney’s Office has a general policy of not permitting a reduced plea in a DWI case in which the driver has a BAC of 0.16% (the cut off is usually no more than 0.15%) down to a DWAI, (Driving While Ability Impaired), which is a traffic infraction, not a crime. A DWI can be a misdemeanor or a felony depending on the circumstances and whether this was Mr. Towns’ first offense.

Mr. Towns pled not guilty to the charges at his arraignment before Judge Helen Blackwood in the Mount Vernon City Court. He is expected to take a plea to DWI on August 18, 2011. If Mr. Towns pleads guilty to the DWI charge, he will be sentenced to a fine of $500.00 with a New York State surcharge of $400.00, be required to attend a Victim’s Impact Panel sponsored by MADD, (Mothers Against Drunk Driving), be ordered to undergo alcohol screening and evaluation through a County sponsored program (and treatment if needed), have to install and maintain at his expense an Ignition Interlock Device in any cars he owns or operates for 1 year, and attend the DMV sponsored Drinking Driver Program, which is a 7 week class that is approximately 16 classroom hours. He will also be fined $750.00 by the DMV in what is known as a “Driver’s Responsibility Assessment.”

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Pittsburgh Steelers wide receiver and “Dancing With The Stars” winner, Hines Ward, has been charged with driving under the influence in Atlanta, Georgia. The charges were initiated on July 9, 2011, when Ward’s 2009 Aston Martin swerved, striking a curb. A local police officer observed the erratic driving, suspected a DWI, and followed Ward. He observed Ward make several unsafe lane changes, which gave the officer probable cause to stop the vehicle. When confronting Ward, the officer claims to have observed his bloodshot eyes, flushed face, and a strong odor of alcohol coming from him.

Ward allegedly failed field sobriety tests. He apparently refused to take a chemical test when requested to by the officer. However, Ward agreed to take a portable alcohol test, the Alco-Sensor FST, at the scene of the arrest, which he may have known (or spoken with an attorney about) is not admissible in court. The Alco-Sensor reportedly revealed a BAC (blood alcohol concentration) of 0.128. Similar to New York State, the legal limit for intoxication in Georgia is 0.08 percent or above.

Ward was booked in the DeKalb County Jail, and released the same night on a $1,000.00 bond. He is charged with the misdemeanor of driving under the influence of alcohol, which carries a maximum penalty of one year in jail, and a maximum fine of $1,000.00. Ward will also be facing a possible suspension of his driver’s license, regardless of the outcome of his DUI case, for refusing to take a breathalyzer.

A court date has not been set. If Ward were to be convicted of a DWI in New York, he would be facing up to a year in jail, a 6 month suspension of his driver’s license, a maximum fine of $1,000.00, surcharges, and the requirement to install an ignition interlock device in his vehicle for one year. Ward would also be looking at a 1 year revocation of his driver’s license if he was found to have refused the chemical test at the “Refusal Hearing” which is conducted by an administrative judge at the Department of Motor Vehicles.

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On June 23, 2011, Marta Amaro-Morales, 44, became the first driver in Westchester County to be convicted of a felony DWI under Leandra’ s Law, which first came into law in December of 2009. Pursuant to the provisions of Leandra’s Law, drivers charged with DWI with children under the age of 16 in the vehicle are charged with a felony, which cannot be pled down to a lower misdemeanor charge.

Ms. Amaro Morales was arrested on May 30, 2010 when she was driving on the Bear Mountain Parkway in Peekskill and state police claimed that she crossed a double yellow line on one side and the fog line on the other. In addition to the numerous DWI charges, she was also charged with unsafe lane change among other traffic infractions. Her children aged 7 and 11 were in the car with her, as was her 4 year old granddaughter, who was apparently not in a car seat. It was claimed that Amaro-Morales failed the three standardized field sobriety tests, which include the “Walk and Turn”, One Leg Stand” and what is known as the “Horizontal Gaze Nystagmus” test, which is an involuntary horizontal movement of the eyes that is alleged to indicate intoxication.

Amaro-Morales was found guilty of three felony counts of aggravated driving while intoxicated, two misdemeanor counts of DWI, and numerous traffic violations. Judge Barry Warhit issued the verdict after a four day bench (no jury) trial. She faces up to 4 years in prison on the felony charges.

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On January 1, 2011, the “Move Over” law was instituted in New York. The law is named in honor of New York State Trooper Robert W. Ambrose, and Onondaga County Sheriff Deputy Glenn M. Searles. Both were killed in the line of duty while their patrol vehicles were stopped responding to an emergency on the side of the road. The “Move Over” law is designed to protect police, fire, and emergency workers responding to calls on the side of the road. The theory is that by moving over, drivers will help other emergency workers get to the scene of a car crash faster.

Under this new statute, drivers are required to move over and slow down when passing an emergency vehicle that is stopped on the shoulder of a road with its emergency lights flashing. If for some reason the driver is unable to move into the next lane (road congestion), the driver must still slow down.

A violation of the “Move Over” law is a moving violation that results in two points on the driver’s license. In addition, there is a fine of up to $275, mandatory court surcharges, and up to 15 days in jail, although this last provision is rarely invoked for this infraction.

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With the arrival of summer and longer daylight hours, families go to more parties and events. Motorists are charged with more DWIs in the summer, especially on the major summer holiday weekends – Memorial Day, Fourth of July, and Labor Day. For the quarter-century that the National Highway Traffic Safety Administration (NHTSA) has been tracking car crash statistics, the Fourth of July has repeatedly ranked as the deadliest holiday of the year for alcohol-related car crashes. Approximately 50% of all fatal car crashes on the Fourth of July are related to alcohol. As the Fourth of July – the hallmark event of summer – approaches, the implications of the new DWI laws, particularly Leandra’s Law, will become even more evident.

The summer of 2011 will mark the first full summer that any driver convicted in New York of driving while intoxicated with a child younger than 16 years old in the vehicle will face penalties under the fully implemented Leandra’s Law, more formally known as the Child Passenger Protection Act (CPPA). New York is one of 36 states with special child endangerment laws that impose tougher sanctions on drivers who are driving with a child passenger while under the influence of alcohol or drugs. The CPPA, first went into effect on December 18, 2009, making it a felony to drive while intoxicated with a passenger younger than 16 in the vehicle. The law is named after 11 year old Leandra Rosado, who died when a friend’s mother drove while intoxicated and was involved in a rollover accident. The second part of the CPPA became effective on August 15, 2010, requiring anyone convicted of DWI to drive only vehicles that are equipped with an interlock ignition device (IID), which must be installed and maintained at their own expense on any vehicle they own or operate for at least six months from the time of sentencing (but frequently for at least one year).

An interlock ignition device requires a driver to blow into an alcohol sensor before the car can be started, and requires the driver to provide breath samples at random intervals while driving. The IID includes a camera that takes pictures of the driver, and tracking that provide authorities with real-time information for the vehicle. The total cost for installation, six months of service, and removal can be over $1,000. The costs of the IID is in addition to fines, surcharges and DMV penalties of a DWI conviction. A first-time DWI conviction carries a fine of at least $500, a surcharge of $400.00, loss of a full driver’s license for at least six months, and attendance at the New York State DMV Drinking Driver Program (DDP) and MADD Victim Impact Panel.

It is important to advise all reading this blog that the authorities are aware that some drivers attempt to exploit loopholes in Leandra’s Law by transferring the title to the car, selling the car, or denying ownership, to avoid installing an IID. Further, there have been numerous cases of people tampering with interlock devices, attempting to have someone else blow into the device who is not intoxicated, or renting cars that are not equipped with the IID. In New York, drivers who are found to have either tampered with or in any way failed to comply with the IID requirements of their sentences will face a new Class A misdemeanor charge and up to one year in jail. In addition, anybody who helps a driver circumvent the law by blowing into a device so an intoxicated person can drive also faces a Class A misdemeanor charge if caught. Given the harsh consequences of DWI convictions, it is important that drivers arrested for any drunk driving charge contact an experienced criminal defense attorney immediately.

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