US 4 th Amendment

1. US 4th Amendment “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” DWI Detection and Standardized Field Sobriety Testing

2. My Job as a DWI Defense Lawyer Defend the Constitution. Keep police officers honest. Make sure the cops do their jobs. Screw with the DOR.

3. DWI:Probable Cause to Arrest A framework for Analysis

4. When is probable cause an issue after a motorist is arrested for DWI? • When the driver blows over the legal limit at the station. • When the driver refuses a breath or blood test. • When the driver challenges the PC for the arrest in a suppression hearing.

5. What does “probable” mean? “(T)here simply must be a fair probability….that a particular offense has been committed based on the totality of the circumstances. Southardsv. Dir. of Revenue, 321 S.W.3d 458 (Mo. App. S.D. 2010)

6. What does “probable” mean? “Probable cause only requires a probability or substantial chance of criminal activity” State v. McNaughton, 924 S.W.2d 517 (Mo. App. 1996)

7. When is probable cause determined? Probable cause must exist at the time of the arrest. A police officer cannot bootstrap and use facts learned after the arrestto show that he had probable cause to effect an arrest for driving while intoxicated. Domsch v. Director of Revenue, 767 S.W.2d 121 (Mo. App. 1989)

8. Probable Cause for What? State v. Schroeder, 330 S.W.3d 468 (Mo. 2011) • Defendant claimed DWI statutes unconstitutionally void for vagueness • Section 577.010 prohibits operation of a motor vehicle while in an “intoxicated condition." • Section 577.001.3defines “intoxicated condition” as being “under the influence.” • Defendant claimed nobody knows what that means DWI Detection and Standardized Field Sobriety Testing

9. State v. Schroeder, 330 S.W.3d 468 (Mo. 2011) ‘A jury would readily understand that what is meant by "intoxicated condition“ (in a DWI case) is drunkenness to such an extent that it interferes with the proper operation of an automobile by the defendant.’ “Other Missouri courts have also recognized that a driver is in an "intoxicated condition" for purposes of a DWI prosecution if his use of alcohol impairs his ability to operate an automobile.” Need to carefully document any impaired driving. DWI Detection and Standardized Field Sobriety Testing

10. From whose vantage point is probable cause determined? Any determination of whether a police officer had probable cause to make an arrest for DWI has to be made by viewing the situation as it would have appeared to a prudent, cautious, trained police officer. Mayberry v. Director of Revenue, 983 S.W.2d 28 (Mo. App. 1999)

11. How are police officers being trained in MO to conduct a DWI investigation?

12. DWI Detection and Standardized Field Sobriety Testing

13. 24 hour NHTSA Course curriculum • The physiology of alcohol • DWI and traffic statutes and cases • DWI detection and SFSTs • Taking field notes and report writing, and • Courtroom testimony

14. What are they being trained to look for AND DOCUMENT in a DWI case • Driving observations • Driver appearance and demeanor • Driver admissions • Field sobriety test results

15. Driving observations “(S)peedingis not a sign of intoxication.” State v. Robertson, 328 S.W.3d 745 (Mo. App. 2010) Peeling out “is no more a sign of intoxication than speeding or failing to use a turn-signal.” Guhrv. Dir. of Revenue, 2006 Mo. App. LEXIS 1261 (Mo. App. 2006) DWI Detection and Standardized Field Sobriety Testing

16. WHAT DO PRUDENT, CAUTIOUS, TRAINED POLICE OFFICERS DO WHEN CONDUCTING A DWI INVESTIGATION?

17. What should we expect of a prudent, cautious, properly trained police officer? 1. Prudent, cautious, trained police officers are familiar with the traffic laws and equipment regulations, and make valid traffic stops. DWI Detection and Standardized Field Sobriety Testing

18. Failure to signal a turnwhen leaving private property (residence or business) is not a violation of the law and does not justify a traffic stop. State v. Loyd, 326 S.W.3d 908 (Mo. App. 2010) DWI Detection and Standardized Field Sobriety Testing

19. Failure to signal when pulling away from a parking spot along the curb of a city street is not a violation of the law and does not justify a traffic stop. State v. Johnson, 148 S.W.3d 338 (Mo. App. W.D. 2004) DWI Detection and Standardized Field Sobriety Testing

20. Slightly crossing over the fog line once or twice for a few seconds is not a traffic violation, and does not provide reasonable suspicion of DWI. State v. Abeln, 36 S.W. 3d 803 (Mo. App. W.D. 2004) U.S. v. Sugar, 322 F. Supp. 2d 85 (D. Mass. 2004) State v. Roarke, 229 S.W. 3d 216 (Mo. App. 2007) State v. Loyd, 326 S.W.3d 908 (Mo. App. 2010) DWI Detection and Standardized Field Sobriety Testing

21. Driving onto, but not over, a center line does not justify a traffic stop. State v. Mendoza, 75 S.W.3d 842 (Mo. App. S.D. 2002) State v. Loyd, 326 S.W.3d 908 (Mo. App. WD 2010) DWI Detection and Standardized Field Sobriety Testing

22. What should we expect of a prudent, cautious, properly trained police officer? 2. Prudent, cautious, trained police officers ASK RELEVANT QUESTIONSbefore arresting a citizen for DWI. DWI Detection and Standardized Field Sobriety Testing

23. Have you had anything to drink since the accident? Stollev. Director of Revenue, 179 S.W.3d 470 (Mo. App. 2005) Domschv. Director of Revenue, 767 S.W.2d 121(Mo. App. 1989) DWI Detection and Standardized Field Sobriety Testing

24. Were you driving the vehicle? Mullen v. Dir. of Missouri Dept. of Revenue, 288 S.W.3d 319 (Mo. App. 2009) Mayberry v. Director of Revenue, 983 S.W.2d 28 (Mo. App. 1999) Molthanv. Dir. of Revenue, 32 S.W.3d 643(Mo. App. 2000) DWI Detection and Standardized Field Sobriety Testing

25. TYPICAL NARRATIVE REPORT: “I asked him if he had been drinking. stated, ‘Yes.’” • How manydrinks did you have? • Whatwere you drinking? Beer? What kind? • What timedid you start drinking? • Whenwas your last drink? • Where were you drinking? DWI Detection and Standardized Field Sobriety Testing

26. How bigwere your drinks? “I only had one (1) drink, Offisher...”

27. What should we expect of a prudent, cautious, properly trained police officer? 3.A prudent, cautious, properly trained police officer carefully documents his or her observations in the arrest report. AIR matches Narrative Report Testimony matches both DWI Detection and Standardized Field Sobriety Testing

28. What should we expect of a prudent, cautious, properly trained police officer? 4. A prudent, cautious, trained police officer knows how to properly administer, interpret and score field sobriety tests, and does so. Brown v. Director of Revenue, 85 S.W. 3d 1 (Mo. 2002) DWI Detection and Standardized Field Sobriety Testing

29. What should we expect of a prudent, cautious, properly trained police officer? 5. A prudent, cautious, trained police officer would not rely upon the results of improperly administered field sobriety tests when making a probable cause determination. Brown v. Director of Revenue, 85 S.W. 3d 1 (Mo. 2002)Paty v. Director of Revenue, 168 S.W.3d 625 (Mo. App. 2005) DWI Detection and Standardized Field Sobriety Testing

30. What should we expect of a prudent, cautious, properly trained police officer? A judge may disregard the testimony of a police officer concerning the results of improperly administered field sobriety tests when deciding whether or not the officer had probable cause to arrest an individual for DWI. Brown v. Director of Revenue, 85 S.W. 3d 1 (Mo. 2002) York v. Dir. of Revenue, 186 S.W.3d 267 (Mo. 2006) DWI Detection and Standardized Field Sobriety Testing

31. What should we expect of a prudent, cautious, properly trained police officer? 6. A prudent, cautious, trained police officer follows the manufacturer’s recommendations for the operation and maintenance of a PBT device. Patyv. Dir. of Revenue, 168 S.W.3d 625 (Mo. App. 2005) York v. Dir. of Revenue, 186 S.W.3d 267 (Mo. 2006) State v. Robertson, 328 S.W.3d 745 (Mo. App. 2010) DWI Detection and Standardized Field Sobriety Testing

32. Four primary PBT devices in use in Missouri. Alco-Sensor III Alco-Sensor FST LifeLoc Intoxilyzer S-D2 Portable Breath Testers(“P.B.T.”)

33. If you are going to rely on a PBT for PC, the case law says the cops should • Do calibration checks every 30 days • Conduct a 15-20 minute observation period or at least ask the suspect if he or she put anything into the mouth • Read the operator’s manual • Generally understand how device works and be able to explain it in court

34. PBT INTERFERENTS Radio frequency interference. Residual mouth alcohol. - Alcoholic beverages - Breath sprays containing alcohol - Food containing alcohol. - Cough drops and syrups containing alcohol. - Mouth washes containing alcohol. - Chewing gums with sugar alcohols.

35. NHTSA MANUAL SAYS: DWI Detection and Standardized Field Sobriety Testing

36. What should we expect of a prudent, cautious, properly trained police officer? 8. A prudent, cautious, trained police officer asks the suspects when they LAST PUT ANYTHING INTO THEIR MOUTH before giving them a PBT. DWI Detection and Standardized Field Sobriety Testing

37. What should we expect of a prudent, cautious, properly trained police officer? 9. A prudent, cautious, trained police officer stays current in his or her DWI enforcement training. Holloway v. Dir. of Revenue, 324 S.W.3d 768 (Mo. App. S.D. 2010) (Officer’s HGN training preceded NHTSA approval of the test) DWI Detection and Standardized Field Sobriety Testing

38. 10. Prudent, cautious, trained police officers are polite

39. 11.Prudent, cautious, trained officers show proper respect for the defense lawyers DWI Detection and Standardized Field Sobriety Testing

40. Horizontal Gaze Nystagmus Test “Here Goes Nothing”

41. Not a candidate for HGN DWI Detection and Standardized Field Sobriety Testing

42. HGN Procedures – Quick Review • Remove eyeglasses.Why? • Tell the subject to keep head still, follow the stimulus with eyes only until told to stop • Hold stimulus 12-15 inches away from suspect’s nose VIII-11

43. HGN Procedures • Check for equal pupil size. Why? Pupil Size: “If the two pupils are distinctly different in size, it is possible that the subject has a glass eye, or is suffering from a head injury or a neurological disorder.” See 06’ Inst. Manual.

44. HGN Procedures • Check for Resting nystagmus. Why? Resting nystagmus “usually indicates a pathology (i.e., brain tumor) or high doses of a drug such as a Dissociative Anesthetic like PCP.” See 06’ Inst. Manual

45. HGN Procedures • Check for equal tracking – Why? “If the two eyes do not track together, the possibility of a serious medical condition or injury is present.” See 06’ Inst. Manual People with M.S 2 seconds total, each sweep.

46. HGN Procedures Check for lack of smooth pursuit. Move out as far to sides as eyes can go 2 seconds out and 2 seconds back Check each eye twice Check for distinct and “sustained” nystagmusat maximum deviation Move out as far to side as the eyes can go Hold for a minimum of 4 seconds. Check each eye twice

47. HGN Procedures • Check for onset of nystagmus prior to 45 degrees. 4 seconds out to reach 45 degrees 12 inches out, 12 inches over Check each eye twice • Check for Vertical Gaze Nystagmus Minimum 4 second hold • Check the eyes twice

48. HGN Procedures 11. Total the clues. 4/6 = 77% chance over .10%

49. Most Common Mistakes on HGN • Stimulus too close to the nose • No check for equal tracking/pupil size • Timing errors (90% of the time) • Checking clues only once DWI Detection and Standardized Field Sobriety Testing

50. HGN (cont’d) • Video of proper administration • Sample cross-examination DWI Detection and Standardized Field Sobriety Testing