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Drunk Driving and Roadside Field Sobriety Testing in Massachusetts OUI Cases

75579_drunk_driving.jpgThis article will discuss the different types of standard field sobriety tests that are currently being used by law enforcement officials in Massachusetts for people suspected of operating a motor vehicle under the influence of alcohol or drugs (OUI/DWI), commonly referred to as drunk driving. The tests used by police officers out in the field in traffic stops consist mainly of the walk-and-turn test, the one-leg stand test, alcohol breath test, and horizontal gaze nystagmus test. The results of these tests are used because government officials at the National Highway Traffic Safety Administration learned decades ago that they have been reliable indicators for distinguishing blood alcohol content beyond the legal limit for driving, assuming that the tests were administered in a standardized manner by a properly trained police officer.

The walk-and-turn test is divided up into two areas. First, there is an instruction phase where the individual detained is told to keep the arms at his or her side, and to put his or her feet heel to toe. The person is then instructed to listen to the directions as the officer informs them to take nine heal to toe steps, turn in a certain manner, then take another nine heal to toe steps back. The second phase is the physical test itself. Scoring by the officer is performed based upon certain cues including but not limited to whether the person lost balance, started too soon, stopped while walking, and touched heal to toe, etc. During this time the officer is looking for two or more cues which would lead to the probability that they where operating their motor vehicle while intoxicated.

The one-leg stand is a test that also has an instructional part then a balancing and counting part. During the instructional part, the police officer asks the person to stand with feet together, arms at the side and to listen. The person is told to raise one leg about six inches off the ground with toes pointed outward while keeping both legs straight. The person is then instructed to count out loud until told to stop. During this time, the person must follow the instructions as given by the officer. There are four specific cues that the officer looks for during this test: any swaying while balancing, using the arms to balance, hopping, or putting a foot down during the test. If you put your foot down three or more times during the thirty-second period the police consider you unable to complete the test. If you have two or more cues you also fail the test.

The horizontal gaze nystagmus test (HGN) test checks for the involuntary jerking of the eye, which is an involuntary movement that is considered impossible for a person to compensate for in any way, unlike other field sobriety tests. During the test the officer observes the eye for three separate cues which pertain to eye movement for lack of smooth pursuit, nystagmus at maximum deviation, and the angle at which the onset of nystagmus occurs prior to forty-five degrees. The testimony of an officer of the result of an HGN test relies on the assumption that there is a strong relation between nystagmus and intoxication. The court has held that this underlying assumption is not within the common knowledge or experience of the jurors so before such evidence can be used the prosecutor must lay an appropriate evidence foundation in satisfaction of case law precedent. (See Commonwealth v. Sands, 424 Mass. 184 1997).

Hand-held breath tests (PBT) are also being used in large numbers by police in drunk driving cases. This test will be the last test administered by the police officer, who must be certified and properly trained using a calibrated device. When taking a breath test the person must exhale expired air into the breath testing device. In Massachusetts, the blood alcohol level measured in the test is concerted to a blood alcohol content. The devices that police use must be certified annually and periodic testing and inspection must be performed. Proof of the same must be maintained in logs. General Laws c.90, s. 24 calls for immediate suspension of the drivers license of individuals arrested and charged with operating under the influence if they have a breath test result of 0.08 percent or greater.

Patrick J. Murphy, Esq. is an experienced Boston OUI trial attorney who that will successfully handle your drunk driving case in Boston or any surrounding city or town in Massachusetts. Attorney Murphy is aware of all testing procedures and protocols that the police must follow and maintain in order to properly testify in court. Attorney Murphy has successfully defended clients accused of drunk driving and he is confident and prepared to help you today. If you have been charged with an OUI or DUI contact the Law Office of Patrick J. Murphy today by calling 617-367-0450 or by submitted the contact form on the website. Attorney Murphy will be happy to discuss the specifics of your case promptly and offer you legal guidance right away.