There is a DWI trial going on in West Palm Beach now that has captured widespread attention around the U.S. The case involves 48 year old Houston multimillionaire John Goodman, who is charged in the February 12, 2010 death of 23 year old Scott Wilson, who was killed when Goodman’s $200,000 Bentley went through a stop sign and struck Wilson’s vehicle. The accident caused Wilson’s Hyundai to flip over and into a canal, where Wilson drowned. The evidence presented in Court allegedly shows that Goodman’s BAC (blood alcohol concentration) was more than twice the legal limit at the time of the accident.

According to the local medical examiner, Wilson would not have died from his physical injuries in the accident. Accident reconstruction experts claim that the Bentley was traveling at 63 miles per hour at the time of the crash.

Goodman is charged with DUI manslaughter, vehicular homicide and leaving the scene of a serious personal injury accident, and could face up to thirty years in prison if convicted of the charges. The prosecution contends that Goodman’s BAC was approximately 0.18%, more than twice Florida’s legal limit of 0.08%. Ellen Roberts, the prosecutor, informed the jury that Goodman consumed between 16 and 18 drinks before entering his vehicle. They presented evidence from Palm Beach County Sheriff Richard Safford, who testified that Goodman smelled as if alcohol was “almost coming directly from his pores…” and that he had to roll down his windows to let the smell clear out of his vehicle after transporting Goodman to the precinct.

The defense has offered two arguments for Goodman’s innocence. First, they contend that Goodman was not intoxicated prior to the accident, but rather, began drinking after the accident to deal with the pain of his injuries, which include a shattered wrist, broken sternum and an unspecified head injury. The second contention the defense has made is that a malfunction in the Bentley caused the vehicle to accelerate rather than stop when Goodman approached the stop sign.

In disputing the first contention, the prosecution has offered the testimony of two witnesses who observed Goodman drinking at two establishments before the accident. As for the second argument, Ms. Roberts presented the testimony of Wellington Regional Medical Center nurse Cecilia Betts, who testified that Goodman never made any complaints of dizziness, headache, or any other signs of a head injury at the hospital, only wrist pain. Further, during her testimony, Goodman’s girlfriend Heather Laruso Hutchins did not recall Goodman complaining about pain other than of his wrist.

The defense also claims that a purported head injury suffered by Goodman caused him to forget that he had struck another vehicle and that the occupant of that vehicle would need assistance, or at least a call to 911. Goodman apparently left the scene without making an effort to assist in a rescue of Mr. Wilson after the accident. Goodman’s attorney claims that Goodman suffered a concussion, which was responsible for his conduct. However, the prosecution presented evidence that Wilson was able to call his girlfriend to notify her of the accident, and also was physically and mentally capable of walking to another bar and ordering additional drinks.

Two other facts about this case bear mention. First, Goodman’s attorneys have apparently settled a civil wrongful death action with Wilson’s parents for an undisclosed sum. Secondly, in a bizarre twist, Goodman has adopted his 42 year old girlfriend, ostensibly in an effort to protect his substantial assets.

To watch a computer recreation of the Goodman DWI crash, go to this link from the South Florida Sun Sentinel.

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In Part 1 or this article, we discussed the circumstances of when a motorist is required to install an ignition interlock device in their vehicle, how the IID works, how long the IID must remain in the vehicle and the crimes that require the installation of an ignition interlock device. We begin part 2 with the question: What if the motorist is not able to afford the installation or maintenance fees associated with an IID?

If the driver can demonstrate through the Court mandated “Financial Disclosure Report” that he or she does not have sufficient resources to pay for the IID installation and maintenance, the Court may either order a payment plan or waive the fee entirely. This form is extensive, and covers all sources of income, including bank accounts, property, rent, mortgage payments, and family members who might be able to assist in payment of the fees. Only if the Court is satisfied that the motorist has no means of payment will the fees be waived.

If the motorist does not own a motor vehicle as of the time of sentencing, proof must be given to the Court to this effect, from sources such as the NYS Department of Motor Vehicles and an insurance company if the vehicle was recently taken off of the road. If the motorist obtains a motor vehicle during the time of the DWI sentence, that vehicle must be equipped with a IID.

Once the driver has passed the start up test with the IID, the device will require “rolling tests” at regular intervals of approximately 15 minutes to 30 minutes. If the driver fails the start up test, he or she must re-take the test in 5-15 minutes. Additionally, once the start up test has been passed, rolling tests are required approximately every 15 to 30 minutes. Rolling tests are required while the driver is operating the vehicle. If the driver fails the rolling test, a rolling re-test will be required in 1-3 minutes. If a number of tests are failed, the car will go into “lockout mode” and then it will not be possible to start the vehicle unless it is brought back to the facility where the IID was installed.

If the driver fails a start up test or rolling test, this information will be provided to the sentencing Court, District Attorney’s Office, Department of Probation, and any treatment provider. This can result in a violation in the person’s sentence of a conditional discharge or probation, and can lead to re-sentencing on the original charge.

Additionally, if the driver tampers with the IID, fails to use the device, or attempts to have someone else blow into the device, this can lead to additional criminal charges against the driver, as well as any person charged with assisting in the tampering.

There are exceptions for use of the IID if the driver is operating a vehicle at work, as long as it is proven that the employer knows about the sentence and consents to allow the employee to operate vehicles without the device installed. However, if the person is self employed, they must only operate vehicles equipped with an ignition interlock.

After the sentence is completed, the driver can apply to the Court and Department of Probation to have the device removed at a Court approved facility.

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In August of 2010, the New York Vehicle & Traffic Law was amended as part of Leandra’s Law to include a provision that in all DWI convictions, the motorist is required to install and maintain an ignition interlock device (IID). An IID is a device which prevents a car ignition from starting if the operator of the car has a blood alcohol level of .025% or above when blowing into the device. Alcohol based mouthwashes such as Listerine are not recommended when the driver has an IID in their vehicle, as their use can lead to a positive alcohol finding despite the fact that the driver was not drinking alcohol. Clients must also be informed that if they drink alcohol the night before, and must drive to work early the next morning, they must be very careful to make sure that their alcohol intake is completed well in advance of entering their vehicle the next morning. Otherwise, there can be a positive alcohol reading, leading to serious consequences, despite the fact that the person was not drinking alcohol for many hours prior to entering their vehicle.

Under the law, an IID must be installed in all motor vehicles which the defendant either owns or operates. Thus, if the person convicted of a DWI is married or has children living at home who own motor vehicles, unless the person can prove to the Court’s satisfaction that he or she will not have access to the other motor vehicles in his or her household, the ignition interlock must be installed in all of the vehicles! The IID is required by law to be installed in the motorist’s car for at least six months, but in practical effect, all Courts in my experience are ordering that the device remain in the vehicle for a minimum of one year.

It is important to note that the IID must be installed in any DWI convictions, including common law DWI (by the officer’s observation of Field Sobriety tests, alcohol on breath, slurring words, staggering, loss of balance, bloodshot or watery eyes, for example), per se DWI (by chemical test evidence, including a breathalyzer, blood or urine tests), felony DWI, and aggravated DWI. Aggravated DWI is charged when the driver has a BAC (blood alcohol concentration) or 0.18% or above. However, the IID does not have to be installed on a DWAI conviction or plea (Driving While Ability Impaired), which is a traffic infraction, and not a crime as is a DWI.

When the Court sentences a driver on a DWI, they must report to the Department of Probation for direction on installation of the IID, which can only be performed at specifically authorized facilities. The driver must then return to Court with proof that the ignition interlock was installed in all vehicles which he or she owns or operates. The driver is required to pay the cost of installation of the device, as well as maintenance of the device during the one year period. The maintenance fees are approximately $75.00 per month or slightly higher.

In Part 2 of this article, we will discuss possible waiver of IID fees, the penalties for tampering with the ignition interlock or having someone else blow into the device, and the rules governing employer owned vehicles for motorists ordered to install an ignition interlock in their personal vehicles.

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According to a study reported by Ken Valenti in The Journal News this week, arrests for driving while ability impaired by drugs (DWAID) is a prevalent problem in Westchester, Rockland and Putnam Counties, and more drivers were arrested on this charge in 2011 than ten years ago, despite increased public awareness. The report determined that were 145 DWAID arrests in 2001 in the three county region, compared with 261 last year.

DWAID can result in the same penalties as if the driver is accused of a DWI, including a misdemeanor on the first charge, and a felony on the same charge within 10 years, or a felony on the first DWAID if there are children under the age of 16 in the vehicle (Leandra’s Law). DWAID is more difficult to detect than a DWI, as it is not as easy to determine a this offense by laboratory results, which would require a urine sample or blood test, as it is to conduct a chemical test of the motorist’s breath, which can be performed at the precinct. Additionally, DWI’s are often charged based on the officer’s common law observations of the driver, including slurred speech, alcohol on their breath, or bloodshot eyes, much easier to determine from alcohol than drugs.

Across New York State, many police officers are now being trained as “DRE”’s, or “Drug Recognition Expert[s].” There are 250 DRE officers in New York, which requires 200 hours of training in detecting the signs and symptoms of drug usage. Driving while impaired by drugs has become a bigger problem, according to the Westchester Department of Public Safety, due to increased prescription drug usage and abuse, as well as the use of illicit drugs such as heroin and cocaine.

The problem may be worse than reported, since if the arresting officer determines that a driver is intoxicated by means of a chemical test result or field sobriety test, there is little incentive to also check whether the motorist is impaired by drugs. Countywide, Westchester police officers arrested 157 drivers for DWIAD in 2011, which was more than 40% of the overall impaired driving arrests. In 2011, Westchester had 196 DWAID and 1,628 DWI arrests, Putnam County arrested 15 for DWAID and 428 for DWI, and in Rockland County, there were 50 DWAID arrests and 640 for alcohol related impairment. In Westchester County, there was a large increase in DWAID arrests from 2001, when there were 122, (more than a 60% increase to 196 in 2011), but there was a decrease in DWI arrests from ten years ago, from 2,049 in 2001 to 1,628 in 2011.

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When charged with any drunk driving offense, under the New York Vehicle And Traffic Law, the driver’s license of the defendant will be suspended at the arraignment, under the policy of “suspension pending prosecution.” Essentially, what this means is that regardless of whether the DWI charges are eventually proven or not, the person’s driver license is suspended on the first Court appearance in the case. Obviously, this presents a significant problem for people who must drive themselves to work, school, or medical treatment and have no viable alternative means of travel due to logistics or finances.

Under certain circumstances, the Court may permit the driver to obtain what is known as a “hardship privilege” or hardship license under Section 1193 (2) (e) (7) of the Vehicle & Traffic Law. A hardship license will only be granted by the Court after a “Hardship Hearing” is conducted by the presiding Judge, which by law must be held within three days of the arraignment date. In order to obtain the hardship license, the motorist must show that he or she has no alternative means of travel to and from work, school, or necessary medical treatment, and that the lack of such a license would impose an “extreme hardship” (a moderate hardship is not sufficient) on the defendant.

To substantiate the need for the hardship privilege, the Court takes testimony from the driver, who must have proof of where they work and live, and establish that they have no nearby relatives, friends or co-workers who could drive them where they need to go while the DWI case is pending in Court. The Court also requires proof of extreme financial hardship, including pay checks or other proof of salary, as well as evidence as to what the cost and/or availability of buses, trains or taxis would be if the driver was required to use these means of travel. Additionally, a friend, relative, or co-worker must be in Court to corroborate the testimony of the defendant.

If the hardship license is granted, it will be effective only for the specific days and hours that the driver testifies that he or she requires their car for round trip transportation to work, school or for medical treatment. The hardship license is not to be used for travel to non-essential locations such as to a restaurant, friend’s house or the mall. If the driver is caught using the hardship license for non permitted uses, this will result in the termination of the privilege and possible other sanctions by the Court.

A hardship license is also not available to commercial license holders, to defendants who have refused a chemical test such as a breathalyzer, or to drivers who have had a previous DWI charge within the last five years.

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Earlier this month, Detroit Tigers All-Star third baseman Miguel Cabrera pled no contest to a drunk driving charge in Fort Pierce, Florida. By accepting a plea in the case, Cabrera will be able to avoid the possibility of jail time and get a dismissal of other charges surrounding his DWI arrest, including resisting arrest and having an open container in his vehicle.

Back in February of 2011, Mr. Cabrera was stopped by police in Fort Pierce, Florida at the side of a road with smoke coming out of the engine of his Land Rover. When police officers asked Cabrera to step out of the vehicle, it was reported that he grabbed a bottle of Scotch and took a drink before he complied. The officers noted that Cabrera had blood shot, watery eyes, and slurred speech.

Cabrera was apparently belligerent with the officers, and refused to take a breathalyzer. According to Cabrera’s attorney, the primary motivation for the plea deal was a concern that if they fought the case to trial, this would interfere with the 2012 baseball season, which commences with spring training next month.

By pleading to the DWI charges, Cabrera will be sentenced to a year of probation; a six month suspension of his driver’s license; fines of more than $1,400.00, required attendance at a Drinking Driver’s Program and a Victim’s Impact Panel sponsored by Mothers Against Drunk Driving.

Had Mr. Cabrera been found guilty of DWI charges in New York, he would be facing a six month revocation of his driver’s license; a $500.00 fine and mandatory New York State surcharge of $400.00; be required to install and maintain an ignition interlock device in any vehicle he owned or operated for one year; be screened for substance abuse, be required to attend a 7 week Drinking Driver Program sponsored by the New York State Department of Motor Vehicles (known as the “DDP”), and also need to attend a Victim Impact Panel. Further, he would be facing an additional fine of $750.00 known as a “Driver’s Responsibility Assessment” from the Department of Motor Vehicles.

With regard to the refusal to take a chemical test, if Mr. Cabrera was found to have refused this test in New York, he would be subject to a one year revocation of his driver’s license, fines of at least $500.00, and a restriction on his ability to obtain what is known as a “hardship license”, which is granted in certain circumstances during the pendency of a DWI case until its conclusion.

By accepting the plea, Mr. Cabrera was also able to obtain a dismissal of the criminal resisting arrest charges and the violation of having an open container of alcohol.

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Frequently, when our clients are arrested for DWI, they will receive multiple tickets from the arresting officer, and there will be more than one DWI charge. One question the client has is: Why was I charged with multiple counts of DWI? This article will address that question.

Under Section 1192 (2) of the New York State Vehicle & Traffic Law, also known as the per se statute, a motorist can be found guilty of DWI “per se” as follows:
No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva…”

Therefore, in order to be able to prove that a motorist is intoxicated under the per se DWI statute of 1192 (2), the prosecution must have either a blood test, breathalyzer or urine sample which establishes that the person had at least 0.8% of alcohol in their system simultaneously with their operation of a motor vehicle. Realistically, although the statute also provides for proof of intoxication through a saliva sample, this is very infrequent, and in this writer’s experience, has never been the basis for a DWI charge under V & T 1192 (2).

The New York State Legislature provided for situations in which there is no laboratory proof of driving while intoxicated, such as cases in which the driver refuses to take a chemical test, or for some other reason a test is not performed, or is not admissible in Court. This alternative DWI charge is known as “Common Law DWI”, and is found under Section 1192 (3) of the Vehicle & Traffic Law.

1192 (3) states: “No person shall operate a motor vehicle while in an intoxicated condition.”

The reason investigating officers will issue tickets for both per se DWI under 1192 (2) and common law DWI pursuant to 1192 (3) is to account for the possibility that the per se DWI charge will not be substantiated, due to some evidentiary issue with the blood, breath or urine sample. Further, in cases of a refusal, there is no legal basis to charge the driver with 1192 (2) since no breath, blood or urine is available for testing.

Common law DWI can be established by the investigating officer’s observations of the driver performing Field Sobriety Tests, including the walk and turn or one leg stand. Additionally, the officer can testify to his or her observations of the motorist’s operation of their motor vehicle, impaired motor coordination, slurred speech, disheveled appearance, demeanor, or odor of alcohol on their breath or body, among other factors.

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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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