Friday, October 31, 2008

Horizontal Gaze Nystagmus (HGN) Test

If you were given the Horizontal Gaze Nystagmus tests (HGN), a.k.a, the "follow the pen test with your eyes", did the officer do 7 passes?
(1) did he do a preliminary pass to check for any disability?
(2) on the second pass, did it take exactly 8 seconds, or did he go too fast?
(3) on the third pass, did it take exactly 4 seconds, or did he go too slow?
(4) remember, most people have some form of natural nystagmus; however, it eventually clams down after a few seconds, but an alcohol nystagmus doesn't. So, if the officer went too quickly, he did not perform the test correctly and may have seen the natural nystagmus and incorrectly come to the wrong conclusion.

Wednesday, October 29, 2008

Can I Get My OWI Conviction Erased From the Records

On your 1st offense OWI, if you are able to enter a plea to the BAC/PAC charge between 0.08 -0.99, then after 10 years it will be purged and no longer part of your record. Otherwise, your conviction will be a part of your permanent record.

Should I Submit to an Officer's Request to Perform Testing

If you are arrested for drunk driving the police may ask you to submit to a blood or breath test. If you refuse to submit to their request, then you may be cited for Refusal, in addition to any OWI and BAC/PAC citations that you may receive. If you do refuse, then you have 10 days from the date you were given notice in which to demand a refusal hearing.

If you submit to the officer's primary test request, often times a blood test, you have the right to request secondary test, i.e., an alternative test. If you are not given the opportunity for the alternative test that you have requested, the court may then suppress the results of the first test at trial. And, it's hard for the state to get a conviction without the test result.

Monday, October 27, 2008

Field Sobriety Testing

I was surfing YouTube and found this hilarious drunk driving video, check it out:

The title of it is "How to Pass a Drunk Driving Test."

However, if you do what this guy did in the next video, during the Field Sobriety Testing, there may not be much that I can do:

The title of it is "Joker taking a drink/drive test and acing all the answers."

But, if do ever get stopped, I would imagine that you may want to do what this guy did - but don't, for obvious reasons:

The title of it is "Pissed On Cops - Traffic Stop"

Saturday, October 25, 2008

Were you arrested for drunk driving in the State of Wisconsin?

There are several phase of the arrest procedure in Wisconsin, and if there is an error in procedure or law at any of those phases, your case may be dismissed!

Phase 1: The Stop. This is the inital phase where a police officer must find a valid legal reason to pull you over. Usually, it is for an ordiance infraction, such as speeding, weaving outside the fog line, or failing to come to a complete stop. However, overzealous officers sometimes make mistakes here. For example, pulling someone over for "making too many right hand turns" was not a valid stop, in accordance with the 4th Amendment, despite the officer's believe that it was suspicious. Also, weaving within one's lane may not be enough to constitute a valid stop.

Phase 2: Reasonable Suspicion. After the stop, the officer must establish a "reasonable suspicion" that the operator of the vehicle was committing another infraction, such as a crime, or operating while intoxicated. Otherwise, the officer has merely stopped the individual for a traffic infraction, such as speeding, and has no other reason for further investigation. To be reasonable, generally, the officer must spot a combination of things, such as "the odor of intoxicants" that eminate from the driver, slurred speach, glassy eyes, slow or fumbled reactions to questions, etc.. This is a "totality of the circumstances" phase. If these criteria are met, the officer may further an investigation as to the newly suspected offense of OWI and have the driver exit the vehicle and perform Field Sobriety Testing (FSTs).

Phase 3: Probale Cause to Arrest. Once establishing that there is a reasonable suspicion of another infraction, the OWI, the officer may further his investigation and have the driver perform the FSTs. The most common tests are the Horizonal Gaze Nystagmus (HGN), One-Leg-Stand (OLS) and the Walk-And-Turn (WAT) tests. Many times the officer will make mistakes here, such as, forgetting to establish a baseline prior to testing, failing to properly perform the HGN test (often times scanning too fast), failing to have the person start in the proper position in the Walk-And-Turn test (which results in an improper pivot turn at step 9) or failing to properly time the One-Leg-Stand (which is to be for 30 seconds, not a count of 30, which tests to be about 40-45 seconds). This is a "totality of the circumstances" phase, having merely reasonable suspicion does not equate with being able to establish probable cause. There has to be more than what the officer had to get you out of the car, in order to make the arrest.

Phase 4. Formal Testing. In this phase, the officer must comply with Wisconsin's Implied Consent Laws. What that means is that the officer must, after making the arrest, read you the Informing the Accused sheet, and this must be done prior to breath or blood testing. The remedy for the officer failing to comply include suppress at trial of the test results, as well as him having violated your 14th Amendment Due Process Rights, and Wisconsin's statutory Implied Consent Law. Additionally, after submitting to the officer's test, you may request other testing. And, if the officer fails to provide you with that opportunity, then the remedy is the same, suppression of the original test results, as that too is a violation of your Constitutionally protected rights.

Knowing your rights, and choosing an attorney who thoroughly understands this area of law may be the difference between you losing your job and going to jail and getting your case dismissed!!

Atty. Eric P. Pitsch

614 N. Oneida St.

Appleton, WI 54911

(920) 380-0971