MV Ch. 10- OUI Flashcards
A person “operates” a motor vehicle by driving or doing any act that:
tends to set the vehicle in motion.
-Driving
- Any act tending to set vehicle in motion
- Stopped in course of driving
Passed out defendant, in his parked car in front of a restaurant, had turned the key in the ignition to listen to the radio.
Sufficient of insufficient evidence of operation?
Sufficient.
A driver continues to operate when his vehicle stops in the ordinary course of travel for a reason related to its operation (defendant seen driving from the bar later found wedged behind steering wheel of his wrecked vehicle).
However, operation ends when a person:
parks and leaves his vehicle for a reason unconnected to its operation.
OUI
Proof of operation: (2)
- Observe
- Circumstantial evidence (officers may prove that a person operated without witnessing him driving)
Is it a defense to OUI if operator voluntarily parked his vehicle to “sleep it off”?
No.
those under the influence should not get behind the wheel int he first place
Operator crashed off the road. Empty and partially empty bottles of alcohol in the car. Operator said he started drinking after he crashed, however he stated he left the airport 40 minutes ago =
not enough time since the crash to become as intoxicated as he was.
Defendant had facial wounds consistent with airbag deployment; her purse was under the drivers seat, and her cell phone was in the pocket of the drivers door.
Probable cause for OUI?
Yes.
Association with vehicle and scene and no evidence of another driver
True or false:
Status of the way, not the status of the driver, that controls the issue of whether the suspect is operating on a public way.
True.
*The defendant need not personally qualify as an “invitee” or “licensee” since it is the status of the WAY that contrpls/
Proof of Operation:
Comm Vs Leonard
Driver’s admission only AND more than one possible operator =
Insufficent. Need more evidence to prove defendant was actually the driver.
“Moral of Leonard: NEVER assume that an admission from the suspect is sufficient when there is more than one possible driver.
Proof of Operation:
Comm Vs Leonard
Officers responded to a highway rest area where Leonard was fighting with his wife over the car keys. He was intoxicated and admitted to officers that he drove before the altercation. He was arrested for OUI. However, his wife testified at trial that she had been the operator. The SJC found that:
officers did not have enough evidence that Leonard drove- even though he demanded that his wife “give me back the keys” and police found his wife cigarettes on the passenger side of the car!
Moral of Leonard: Never assume that an admission from the suspect is sufficient when there is more than one possible driver.
Three different locations constitute public way:
- Public way
- Public right of access
- Public access as invitees or licensees
2. Public right of access
Three different locations constitute public way:
Examples:
-Malls (even if closed, if ATM, vending machines, trash receptacle, etc. )
-Parking lots (ex “parking for registered guests only” sign restricted parking, not access)
- Rest areas/ pull offs
However, must be place to which motorists have access (baseball field did not qualify as public way because it was not designated for vehicle access- *charge OUI in a recreational vehicle instead)
3. Public access as Invitees or Licensees
Three different locations constitute public way:
“Invitees” (typically customers) are present at:
the owners request.
3. Public access as Invitees or Licensees
Three different locations constitute public way:
“Licensees” are present with:
the owner’s passive permission.
Ex. a person driving on a private way that is commonly used by the public without the owner’s objection
*History of use for road is key factor
On the roads of a privately owned campground, the defendant drove drunk. The campground had only one entrance with a gate, which opened only with an electronic gate card. The cards were issued to registered campers. Non campers wishing to enter had to go to the office. They were not allowed in after 10pm. A network of unpaved roads connected campsites. There were no signs or lights.
Did this constitute public way for OUI?
No. Gate “totally” restricted access
The appeals court said, “the essential question… is whether the way is (or appears to be) available for public use” . In this case, no motorist approaching the entrance to the campground would believe that he was welcome to drive there. The fact that the campground solicited business was irrelevant. While member of the public are invited to become guests, they are not allowed in unless they acquire a pass.
This is a rare set of circumstances.
Objective appearance of way, not (blank), determines status.
not intent of owner.
Ex private street into trailer park was a public way because it was paved and had street lights, abutting houses, traffic signs, and not signs prohibiting access
Important police tip:
Sometimes commanders, supervisors, and prosecutors mistakenly nullify and officer’s OUI arrest based on their overly restrictive view of what sonstitutes a public way. Make the arrest, and:
argue the facts in court.
Bottom line: If members of the motoring public routinely have access, you should prevail.
What is the most common proof of public way?
Officer testimony.
If vehicle traveled on a public way while driver under the influence, it does not matter that is ended up:
on a private way or off road.
Pier 4 Charlestown Navy Yard example
If public way may be an issue (car in baseball field, for example) consider charging:
OUI in a Recreational Vehicle
Note: Any vehicle used on terrain becomes a recreational vehicle
For example, a baseball field was not considered public way under 90 sec 24, but officers could have used OUI recreational vehicle
in close cases charge both and let court decide.
What is sufficient proof, by itself, of public way?
Certificate of public way.
“certificate by a city or town clerk that a particular way is a public way” shall be sufficient proof.
Two ways to prove a driver is under the influence:
- Impairment
- Per se
Impairment means there is proof of a:
“diminished ability to drive safely”
“diminished ability to drive safely”
Impairment
Per Se:
Definition
Per Se means the defendant registered a BAC of atleast .08 on the breathalyzer or blood test.
Latin for “By itself”
Does an operator have to be drunk to be OUI Alcohol?
No, merely has to have a “diminished ability to operate safely”
-the amount of drugs or alcohol that cause this condition varies from person to person
Officers and/or civilians may offer an opinion about a suspect’s sobriety.
However, officers may not say:
the defendant’s intoxication( aka lack of sobriety) impaired his ability to drive. This is forbidden.
Proper testimony: “My opinion is that John Defendant was intoxicated because I smelled a strong odor of an alcoholic beverage; heard his slurred speech; saw his glassy eyes; watched him trip when he got out of the car; and saw him perform field sobriety tests”
May police testify to their opinion that someone was impaired by marijuana or other drugs, in the same way they can about alcohol impairment?
No.
since there is no consensus on the signs that someone is “high” on marijuana, police officers may not offer their opinion that a motorist was under the influence of marijuana.
Diminished capacity must be caused by: (5)
- An alcoholic beverage
- Marijuana
- Narcotic drugs
- Stimulants/depressants
- Any inhalant
One of these five substances must impair the driver.
- An alcoholic beverage
- Marijuana
- Narcotic drugs
- Stimulants/depressants
- Any inhalant
Causes of diminished ability (OUI)
One of these substances must impair the driver
3 factors that prove an alcoholic beverage caused impairment.
- The odor on a suspect’s breath
or - His admission that he drank
or - a breathalyzer or blood test
Is an Officer’s testimony sufficient to prove an operator consumed alcohol, despite no odor of alcohol?
Yes.
Brockton female O’Donnell case
OUI Drugs
For drugs, there must be proof the substance fell within:
one of the four categories (marijuana, narcotics, stimulant/depressants, inhalants)
Forgetting this technicality can be costly.
ex. horribly impaired defendant acquitted- even though she admitted to taking Klonopin to officer and nurses- because prosecutor did not offer proof that Klonopin is a depressant defined by 94C.
OUI Drugs
Methods to prove Drug Causation: (4)
- Judge relies on an authoritative source- like the Physician’s Desk Reference;
- Defendant stipulates before trial that the substance falls within the statute;
3.Expert testimony by a Drug Recognition Expert (DRE), medical clinician, or Pharmacist; or
- The defendant admits to consuming a drug, such as “heroin”, mentioned by name in Chapter 94C.
- Judge relies on an authoritative source- like the Physician’s Desk Reference;
- Defendant stipulates before trial that the substance falls within the statute;
3.Expert testimony by a Drug Recognition Expert (DRE), medical clinician, or Pharmacist; or
- The defendant admits to consuming a drug, such as “heroin”, mentioned by name in Chapter 94C.
Methods to prove Drug Causation
OUI Drugs
Even with obvious impairment, (blank) often required to link observed symptoms with underlying drug use for conviction.
expert testimony.
DRE, medical clinician, or pharmacist needed to link impairment to a certain type of drug use, which is what the statute requires.
Doe marijuana impairment typically require expert testimony?
not usually.
OUI Drugs
For legally prescribed substance, must prove the motorist had:
reason to know of the possible effect on his driving ability.
OUI exists even if a drug magnified the effect of the alcohol, or vice versa.
If the suspect had reason to know that her intake of alcohol and prescription medication might impair her driving, she is:
OUI.
ex. stopped by police, defendant acknowledged that she had two drinks with dinner and was taking anti-depressant medication. She said that her doctor never warned her about any side effects, and she had not read the patient information or the label. Defendant did admit that, before her arrest, she was concerned enough about the medication effects to call her doctor. She was guilty.
Alcohol or drug does not have to be the SOLE reason for:
diminished capacity.
ex. defendant claimed he was asleep behind the wheel due to an diagnosed sleep apnea condition, but there was also evidence he had been drinking; no need to prove only alcohol caused his diminished capacity.
Defendant can be guilty of (blank) even if acquitted of OUI.
Operating to Endanger
ex. even though she was acquitted of operating under the influence of a drug, the defendant’s admitted ingestion of Klonopin coupled with the circumstances surrounding the accident (she left the road and tipped her car over on a resident’s lawn) proved her guilty of driving to endanger.
OUI Causing serious Bodily Injury 90 Sec 24L(1) and (2):
What makes this offense a felony?
Reckless or Negligent: The offender drove recklessly or negligently which caused the required injury
OUI Causing serious Bodily Injury 90 Sec 24L(1) and (2):
For Misdemeanor (Not Reckless or Negligent):
For Felony (Reckless or Negligent):
Misdemeanor: Warrantless arrest upon probable cause because OUI is an element
Felony: Felony arrest powers
OUI Causing serious Bodily Injury:
How many charges per event?
Even though defendant is involved in one accident, he should be charged separately for each person who suffers serious injury.
Any injury “ which creates a substantial risk of death or which involves either total disability or the loss or substantial impairment of some bodily function for a substantial period of time’
Serious Injury
Note: put hospital in the police report so that the medical record can be subpoenaed.
Manslaughter by MV:
Death results from:
flagrant, reckless driving.
Child Endangerment While OUI:
What is the age?
Child 14 OR under
Child age 14 IS included
Is reckless, negligent, or erratic operation an element of Child Endangerment While OUI ?
No.
- OUI offense
- Child 14 or under in the vehicle
Child Endangerment While OUI:
Elements:
- OUI Offense
- Child 14 or under- There was a child 14 years old or younger in the vehicle at the time the suspect was operating under the influence.
Child Endangerment While OUI:
ROA:
Motorist already eligible for arrest for the OUI offense.
2nd offense: MM 6 months, felony
OUI Detection & Proof:
The National Highway Traffic Safety Administration (NHTSA) identifies 3 phases in the detection of impaired drivers:
- Suspect’s vehicle in motion
- Personal contact
- Pre-arrest screening.
OUI Detection & Proof: NHTSA
Should officers constantly be on the look out for OUI drivers?
Yes.
NHTSA: as many as 1 in 10 under the influence between 10:00 pm and 2:00 am on Friday and Saturday nights.
According to NHTSA, how many drivers on the road are under the influence on Friday and Saturday nights between 10PM and 2AM
1 in 10
According to NHTSA, as many as 1 in 10 drivers on the roads, between what hours and on what days, are drivers under the influence?
10:00pm- 2:00am
Friday and Saturday nights.
Does a recent 911 call, without more, provide reasonable suspicion to stop a possibly impaired driver near the location where he was first observed?
Yes.
A recent 911 call provides reasonable suspicion to stop a possibly impaired driver near:
the location where he was first observed.
A recent 911 call provides reasonable suspicion to stop a possibly impaired driver near the location where he was first observed. In these cases, officers should: (5)
- Rely on reports from citizens
- View the possibility of an impaired driver as an “imminent danger to the public”
- Look for a moving or equipment infraction upon seeing the suspect vehicle. (this provides an ADDITIONAL reason to conduct a stop)
- ALWAYS stop vehicle immediately. Do NOT follow to see if the operator engages in erratic driving
- Check with dispatch for “collective knowledge” before writing report.
4
A recent 911 call provides reasonable suspicion to stop a possibly impaired driver near the location where he was first observed. In these cases, officers should: (5)
ALWAYS stop vehicle immediately. Do NOT follow to see if the operator engages in erratic driving. Following risks the possibility of a crash and may cause:
reasonable suspicion to evaporate if you observe good driving.
5
A recent 911 call provides reasonable suspicion to stop a possibly impaired driver near the location where he was first observed. In these cases, officers should: (5)
Check with dispatch for “collective knowledge” before writing report. Information received after the initial broadcast, EVEN IF IT DOES NOT REACH THE AIRWAVES, is still part of the:
reasonable suspicion calculation.
*For this reason, officers should include all information the caller furnished in their incident report.
If callers reporting erratic operation leading to OUI are willing to pull over and speak with the officer, they are probably:
reliable.
A prankster would not be willing to do this.
*What is typically the best evidence of OUI?
The defendant’s actual operation.
Note: Simple moving violations- such as running a red light- often reveal impaired motorist. Other driving behavior, even when it does not constitute a moving violation, should result in a traffic stop based on reasonable suspicion (ex. stopping for a green light, weaving within one lane, etc).
Phase 1: Vehicle in Motion
The following behaviors have been identified by NHTSA as indicative of possible impairment;
- Wide radius turns
- Straddling center line
- Visually appearing to be drunk
- Almost striking a vehicle/object
- Weaving
- Driving on other than road
- Swerving
- More than 10 (ten) mph UNDER the limit
- Drifting side to side
-Stopping without cause in lane - Following too closely
- Tires on center line
- Erratic braking
- Driving into oncoming lane
- Inconsistent signaling
- Slow to respond to signals
- Abrupt or illegal turns
- Abrupt or illegal stops
- Rapid acceleration/ deceleration
-Driving without headlights
Sobriety check points are an enforcement strategy that must satisfy 5 constitutional requirements:
- Location selected for checkpoint must be based on reliable crash and/or OUI arrest data, and must take into account motorist safety and convenience
- Selection of motor vehicles must not be arbitrary
- The checkpoint must be configured in a way that endures public safety
- The checkpoint must be conducted in a way that minimizes public inconvenience.
- Officer must operate the checkpoint in “STRICT CONFORMITY” with a written plan devised by supervisors.
Sobriety checkpoints:
Officers may only ask about alcohol consumption:
AFTER observing a sign of impairment.
Sobriety checkpoints:
The operator should be allowed to drive to the designated area unless:
extremely intoxicated.
Sobriety checkpoints:
Does an odor of alcohol, by itself, justify referring a motorist for secondary screening?
Yes.
Sobriety checkpoints:
If the screening officer observes a sign of impairment or possible contraband, the motorist MUST be:
referred to a secondary are for more extensive conversation and observation (including sobriety testing).
Sobriety checkpoints:
Are multi agency checkpoints allowed?
Yes.
Is public notice before a sobriety checkpoint constitutionally required?
NO.
recommended but NOT required.
Sobriety checkpoints:
minor discrepancies with the plan- such as late arrivals, failure to sign a duty roster, and failure to file proper forms at the completion of the road block:
do NOT create an unconstitutional seizure- so long as there was no discretionary departure from the policy in the field.
OUI Detection & Proof:
Once a vehicle is stopped or officers arrive at an accident scene, officers enter:
The second phase of detection: Personal Contact with the motorist.
Do officers have the right to avoid the barrier of a partially closed window during a traffic stop?
Yes.
Ex. After observing defendant’s vehicle repeatedly cross onto the highway “rumble strip”, a trooper pulled her over. The trooper asked the defendant. whose window was only partially open, to toll it down completely. When she did, he smelled alcohol on her breath. This was NOT, as she argued, a search.
Do officers have the right to avoid the barrier of a partially closed window during a traffic stop?
Yes.
90 Sec 25 also essentially requires that motorists roll down windows.
90 sec 25 states it is a violation when a driver “refuses, on demand of such officer, to produce his license…. or his….. registration, or to permit such officer to take the license or registration in hand for the purpose of EXAMINATION
90 sec 25 states it is a violation when a driver “refuses, on demand of such officer, to produce his license…. or his….. registration, or to permit such officer to take the license or registration in hand for the purpose of:
Examination.
An order to remove keys from the ignition is appropriate when:
Officer has reasonable suspicion of OUI.
Sometimes a motorist will refuse to lower their window and press their license and registration against the glass. An officer should say “You are required by law to lower your window and hand me your license and registration so I can examine them.”
If the motorist continues to refuse, and officer might say “I’m not going to argue with you about the law. If you do not lower your window and hand me your documents, you are:
subject to arrest.”
Does a traffic stop amount to “custody” for purposes of Miranda?
No.
A traffic stop does not amount to custody, so officers typically do not have to advise motorists of their Miranda rights.
No Miranda custody during sobriety tests- even if they follow an
unspoken arrest.
ex. Officer saw defendant maneuvering his damaged car into a driveway and asked him what happened? Defendant said :”Isn’t it obvious I hit a pole?”. Office later testified that, at this point, he had probable cause to arrest because defendant caused an accident and had slurred speech. Officer did NOT communicate this to defendant or provide him with miranda warning. Instead, he asked him to perform field sobriety tests. He failed miserably!
A district court judge ruled that the officer should have provided miranda warnings once he decided he was going to arrest the defendant. HOWEVER, the appeals court disagreed, declaring that a police officer’s “unarticulated plan” has no bearing on whether a suspect is in custody for miranda. The other features of this interaction, field sobriety tests and a brief conversation- did not rise to the level of custody under miranda either
Is a parked motorist being investigated for OUI in Miranda Custody?
No.
ex. the encounter was public, only two officers were present, and it was brief
Defendant told EMT “I had too much to drink”. EMT informed the officer, who the approached the defendant, who was now strapped to a gurney. He admitted drinking too much. The officer did not provide miranda warning.
Valid or invalid?
Valid.
The court felt medical custody is different from police custody. The questioning occurred in public with EMT’s present, which diminished the possibility of police domination. The officer did not accuse the defendant.
Bottom line- No Miranda custody for suspect who is restrained for MEDICAL treatment.
Police custody occurred at the home of a friend, the tone was conversational and non accusatory. Defendant had parked his care on the lawn and damaged the house. Officers would not have let him leave if he tried.
Was the defendant in custody for Miranda?
No.
Although officers would not have let him leave if he tried, the test for custody is whether a reasonable person would have felt free to go- not whether the defendant was truly free to leave. Here, defendant never tried to leave, and officers never told him to stay. He freely admitted to being drunk.
Bottom line: No Miranda custody at neutral site
Are obscenities admissible to show intoxication?
Yes.
ex. “Fuck that, I ain’t agreeing to none of that shit”- Since obscenities were evidence of his intoxication, they were admissible even though spoken while defendant was being read his rights.
ex. “Nope. I’m home. You can’t make me” His flippant remark showed his intoxication.
At 2AM, defendant was found standing to yards away from a smoking vehicle by a broken telephone pole. The officer observed money and a cell phone on the drivers seat. Defendant admitted they were his. He smelled of alcohol and slurred his speech. At one point, he told the officer “ Let me leave!”.
Is this custody for Miranda?
No.
His desire to leave did not change the nature of the encounter. Temporary detention at the scene is not sufficient custody for Miranda.
Bottom line: No Miranda custody even if suspect says he wants to leave.
May police search for car keys if they have probable cause to arrest?
Yes.
ex. police officer conducted proper search incident to arrest for OUI in order to recover keys to the vehicle to help prove operation.
OUI
May police search for signs of injury if they have probable cause to arrest?
Yes.
ex. at the time Officer lifted Welch’s shirt and exposed a red mark on his chest and stomach, police already had probable cause to arrest him for OUI and leaving the scene. The vehicle was registered to Welch at an address near the crash scene; a male driver had fled in the direction of Welch’s home; and, when he asnwered the door, Welch had visible injuries and appeared drunk.
Lifting his shirt was likely to produce further evidence of the crimes. (e.g. injuries related to airbag deployment.
NOTE: same applies even if the defendant is a female (PREVIOUS TEST QUESTION: female operator, officer removed a scarf from around her neck, says that he is going to do it beforehand, and see evidence of airbag deployment on her neck= valid)
Police may search for keys and signs of injury if they have:
probable cause to arrest.
Are UNOPENED “nips” in a vehicle evidence of OUI?
Yes.
ex. officer recovered four unopened nip bottles of flavored vodka in defendant’s car; they were admissible evidence of “a recognized sign of alcohol use” that is quick and secret.
Based on reasonable suspicion, police may detain a suspect in the driveway or at the door before he enters.
However, absent (blank), police may not enter without a warrant to investigate misdemeanor OUI.
hot pursuit.
Warrantless intrusion into the home of a suspected drunk driver to avoid losing evidence of intoxication is forbidden.
At the same time, knocking at the door and requesting to speak with the motorist is ALWAYS and option.
OUI
Based on (blank), police may detain a suspect in the driveway or at the door before he enters.
reasonable suspicion
ex. officer was looking for a black ford bronco; he sat it in the driveway along with the defendant staggering to the back door; officer talked to defendant, then ordered him to perform sobriety tests.
OUI
What is the critical equation?
Alcoholic beverage odor + slurred speech + glassy eyes = probable cause for OUI arrest
- When an officer lawfully stops a vehicle, and makes these three observations, probable cause exists to arrest for OUI.
As a result, SFSTs are helpful, but NOT required for probable cause.
Police received an anonymous report that a “drunk man” had run into the curb at 30 Monroe St. An officer found a pick up truck with a flat tire. It was angled from the curb and clocking a driveway. A witness saw the driver enter 28 Monroe St. A woman at #28 said that the truck belonged to the defendant, who had just arrived. He came to the door. The officer smelled alcohol, and the defendant refused to participate in sobriety testing. What should the officer do next?
Leave and apply for an OUI complaint. OR the officer could have asked the defendant to come outside to talk, and then arrested him there!
Notes: 1. Knocking at the door and requesting to speak with the motorist is always an option for police.
- The tip, combined with the officer’s observations, provided reasonable suspicion to conduct an investigative detention at 28 Monroe.
3.When the officer was face to face with the defendant, the odor of alcohol provided probable cause for OUI.
OUI
Are Standardized Field Sobriety Tests required for probable cause of OUI?
No. helpful but not required
Alcoholic beverage odor + slurred speech + glassy eyes = Probable cause for OUI arrest
OUI
What is important to remember if the defendant goes to the hospital from the scene?
Prompt citation service.
Do officers have discretion to allow intoxicated motorists to continue driving?
No.
Officers must remove any intoxicated motorist from the road.
ex. a town was liable for the officer’s decision to allow an intoxicated operator to drive away. He soon had a head-on collision causing multiple deaths. Even if officers choose not to arrest, they should have known that permitting continued operation posed a grave risk to the public. It was unacceptable.
If an officer believes probable cause is lacking for OUI, can an officer justify placing the motorist in Protective Custody instead?
No.
It is legally impossible the justify placing a motorist in protective custody on the basis that probably cause for OUI is lacking.
Since the minimum standard for PC is alcohol or drug “incapacitation”- which is a significantly stronger level of intoxication that merely being “under the influence”- it is impossible for a motorist to be eligible for PC but not for arrest.
Note: this decision may be an excuse for really protecting a friend or a work colleague
OUI
Preferential treatment for impaired police officers is an:
ethics violation.
ex. Lieutenant directed an officer on scene to drive home drunk off duty officer after erratic operator call. Chief ordered an internal affairs investigation. The Ethics Commission ruled that the LT, as OIC, failed to arrest or even cite the off duty officer for OUI in order to provide her with preferential treatment. The commission ordered the LT to personally pay a 7500 civil fine. The appeals court upheld the decision.
Phase 3: Pre-Arrest Screening:
(Blank) is necessary to order the driver to exit the vehicle and administer Standardized Field Sobriety Tests.
Reasonable suspicion.
** requiring probable cause to administer SFSTs would make no sense, since the point of SFSTs is to help determine whether to arrest.
True or false?
An officer who is present during SFSTs may testify about what the administering officer said and did.
True.
How may SFSTs be administered to a non-English speaking motorist?
in a foreign language.
Does an exit order for SFST’s justify an automatic frisk of the operator?
No.
Officers need reasonable suspicion that the operator is also armed and dangerous in order to frisk.
ex. OUI Drug example (trooper immediately frisked and found 3 bags of crack)- the better rationale for searching the driver in this case would have been probable cause, based on the troopers observations, that the driver possessed drugs related to his impaired operation.
Compare: exit order and frisk were proper because they occurred on the highway at 4AM, the trooper was alone, the driver had a tattoo of a gang symbol, and the driver failed to pull over immediately and gave illogical responses regarding his destination.
Motorists may be ordered to perform SFSTs, but officers must not use physical force if they refuse, and may not later:
testify about their refusal.
Note: “Refusal evidence” is typically inadmissible because it places the defendant in a catch-22 situation: Take the test and furnish evidence against oneself, or refuse and produce testimonial evidence of consciousness of guilt, which the prosecutor can argue to the jury.
Motorists may be ordered to perform SFSTs, but officers must not use physical force if they refuse, and may not later testify about their refusal. (even a partial refusal may not be commented on)
There are three exceptions:
- Once a suspect agrees to SFSTs, comments about his inability to perform are admissible
- Once the suspect claims police did not offer SFSTs, his refusal is admissible.
- Silence is NOT considered a refusal. ( a defendant must make some expression- verbal or nonverbal- of his refusal to perform an SFST)= because its not a refusal, and officer is allowed to testify about this behavior
OUI
Once a suspect agrees to SFSTs, comments about his inability to perform are:
admissible.
Since the person agreed to take the test, these statements are not the product of coercion.
ex. on his second attempt at the one leg stand, defendant lost his balance and stated “I can’t do this”= admissible
OUI
Once the suspect claims police did not offer SFSTs, his refusal is:
admissible.
Ex. defense counsel “claimed” that defendant had not been asked to perform SFSTs, so officers could testify that he actually had refused.
OUI
Is silence considered a refusal to SFSTs?
No.
A defendant must make some expression- verbal or nonverbal- of his refusal to perform an SFST.
Ex. trooper advised defendant about SFSTs and asked if he understood; defendant nodded; when asked to perform alphabet test, he simply looked down; when asked if he was refusing to take the test, defendant did not respond or react at all; trooper was allowed to testify about this behavior.
OUI: SFSTs
Should an officer be sensitive about a motorist’s disability?
Yes.
ex officers did not provide deaf man with ASL interpreter. Administered SFSTs that were not approved for the hearing impaired.- defendant sued the town and involved officers for reckless infliction of emotional distress.
Through intensive study, the National Highway Traffic & Safety Administration (NHTSA) identified 3 tests for sobriety screening:
- Horizontal Gaze Nystagmus
- Walk & turn
- One leg stand.
- The NHTSA manual is the foundation for all officers are the nation!
