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  1. #1
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    TOO FAT for a DUI

    Weighty Issue - Video - FOXNews.com

    Fox News has a story this morning that a guy got off of a DUI/DWI charge because he claimed he was TOO FAT which made the "fat person bias" SFSTs inadmissable in court. Wow guees if you try hard enough you can get out of any charge here lately.

  2. #2
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    man claimed too fat to pass field sobriety tests - ABC News

    man claimed too fat to pass field sobriety tests - ABC News

    This is stupid. They let him off of a DUI rap because he couldn't pass the balance portions of a SFST? Because he was too fat? Correct me if I am wrong but aren't these tests a precursor to the breath and / or blood tests? Don't you have to fail all of them to be convicted of DUI?

    I have never had to submit to a breathalyzer, blood or urine test but in my younger days I was pulled over once for suspected DUI by the CHP. I was almost home from a trip to Sacramento and was tired. The officer had me do the alphabet, stand on one foot, and he casually flipped my driver's license like a coin onto the ground to see if I would pick it up. I guess I passed because I was allowed to leave the stop and go directly home.

    Oh, and he also had me do the follow the pen with my eyes thing. Nystagmus?


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  3. #3
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    No you don't have to fail all of them to be convicted of OWI, at least here. The Standardized Field Sobriety Tests are validated on a certain segment of the population, meaning they were validated in labratory and field conditions on what would consititute the majority of the population. When the studies and testing were done, obese and elderly persons were not part of the validation group.

    Your field sobriety tests add weight to your observations during the moving and personal contact phases of the stop and in most cases give you additional grounds for asking for a breath test.

    I've had OWI's thrown out for less, so this doesn't suprise me. Attorneys make a lot of money off OWI defense, and the attorneys are the ones who make the rules.

    Covman

  4. #4
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    How would being fat have any effect on the nystagmus test?
    'Political Correctness is a doctrine fostered by a
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    holds forth the proposition that it is entirely
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  5. #5
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    Quote Originally Posted by covman454 View Post
    No you don't have to fail all of them to be convicted of OWI, at least here. The Standardized Field Sobriety Tests are validated on a certain segment of the population, meaning they were validated in laboratory and field conditions on what would constitute the majority of the population. When the studies and testing were done, obese and elderly persons were not part of the validation group.

    Your field sobriety tests add weight to your observations during the moving and personal contact phases of the stop and in most cases give you additional grounds for asking for a breath test.
    That clears up a lot. I guess since I passed these tests out in the "field", then there weren't any additional grounds for further testing.


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  6. #6
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    CTR,

    Years ago, there were no "standardized" tests. Officers just kinda came up with their own tests and their own scoring systems for those tests. Then other officers and trainees saw those tests and they migrated from officer to officer that way. From the tests you described, this is what happened to you while you were stopped. The picking up the license thing made me chuckle. Once the tests were standardized and validated, they were adopted by the National Highway Traffic Administration and then LEO's were trained on them.

    This happened sometime in the early 80's if I recall. There are three validated tests; the HGN, walk and turn, and one leg stand. The bad thing with these tests is if they are not performed just like in the lab, they aren't validated giving the defense attorney a means of attacking your case. This comes up from time to time in court cases I'm involved with.

    Just like every other criminal case, I have to develop probable cause to effect an arrest. If I can do that through my observations and I can articulate those observations without administering the sobriety tests, then I don't need the sobriety tests to make the arrest.

    As PPG said, being fat does not affect the HGN results. Neither does being on a backboard or sitting in my car. Since the test was not validated in the lab on fat people or in a sitting position or on a backboard this could become a problem in court.

    Covman

  7. #7
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    Quote Originally Posted by pgg View Post
    How would being fat have any effect on the nystagmus test?
    His eyes are too fat to move smoothly in his eye sockets ??
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  8. #8
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    Quote Originally Posted by covman454 View Post
    CTR,

    Years ago, there were no "standardized" tests. Officers just kinda came up with their own tests and their own scoring systems for those tests. Then other officers and trainees saw those tests and they migrated from officer to officer that way. From the tests you described, this is what happened to you while you were stopped. The picking up the license thing made me chuckle. Once the tests were standardized and validated, they were adopted by the National Highway Traffic Administration and then LEO's were trained on them.

    This happened sometime in the early 80's if I recall. There are three validated tests; the HGN, walk and turn, and one leg stand. The bad thing with these tests is if they are not performed just like in the lab, they aren't validated giving the defense attorney a means of attacking your case. This comes up from time to time in court cases I'm involved with.

    Just like every other criminal case, I have to develop probable cause to effect an arrest. If I can do that through my observations and I can articulate those observations without administering the sobriety tests, then I don't need the sobriety tests to make the arrest.

    As PPG said, being fat does not affect the HGN results. Neither does being on a backboard or sitting in my car. Since the test was not validated in the lab on fat people or in a sitting position or on a backboard this could become a problem in court.

    Covman
    That makes sense. The CHP officer could have come up with some or all of the tests on his own. It was in the mid 80's and he appeared to be a seasoned officer in his 50's if I recall. I was in my early 20's at the time. He could have used what tests he felt comfortable with at the time to develop probable cause. The picking up of my license by me would have definitely thrown me off balance had I been intoxicated. Especially on the side of the road of a highway built up to interstate specifications.

    Hopefully DUI cases are easier for you guys to be able to supply enough evidence or probable cause to convict people on than they have been in the past. There does seem to be an influx of scumbag defense attorneys collecting the big bucks for DUI's over the years. Hence why there seem to be cases that pop up from time to time where an individual will have several priors before he either gets the message, goes to jail for a while, or heaven forbid kills someone.


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  9. #9
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    Okay

    Many problems here

    1. HGN would work fine
    2. General observations of whats going on can prove drunk and there is no need for tests but we still do them to make it look good for court.
    3. Alternative Tests
    a. Finger Dexterity test (Touch each finger tip in turn to the tip of your thumb while counting up and then down)
    b. Alphabet test (Start at letter E and go to V)
    c. counting test (Start at 63 count down to 44)
    d. finger to nose test (airplane)

    I am sorry but you are not getting out of a OWI for being fat, that is your own problem, deal with it
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  10. #10
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    I can't pass the one-leg stand myself, and have difficulty keeping my balance with the toe-to-heel - so when I demonstrated it, I'd only take a few steps to avoid embarassing myself.

    The physical part of the test is considered invalid in Texas for people above 300 lbs, I believe it is, so I'm borderline.

    Of course the nystagmus test is considered valid, but it's debatable on whether a jury might be willing to base initial PC on one type of test - some of them have said that more PC was needed before administeristing the final breath or blood test.

    For that reason and others, some departments I know of around here administer a portable breathalyzer test in addition to (or instead of) an SFST, then more and more of them are using blood tests to fully affirm probable cause - Every car in my town carries a PBA.

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  11. #11
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    I think I may have told this story before, but, as an academy instructor I was assisting with the DUI portion of the class, which consisted of volunteers coming in and drinking then having the cadets do SFST on the volunteers. I did not drink although the cadets had no idea who had or hadn't had any drinks. When doing the nystagmus testing on me, each cadet claimed I had been drinking. So, while that test is a valid test, some of the population will fail that one also. Once again, it is up to the officer's training to determine how to proceed in most cases, and it usually isn't that difficult to figure out. And yes, defense attorneys can get around the law in almost any DUI, OWI, etc no matter how hard the officer works at dotting all the I's and crossing all the T's

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  12. #12
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    Quote Originally Posted by mack View Post
    I think I may have told this story before, but, as an academy instructor I was assisting with the DUI portion of the class, which consisted of volunteers coming in and drinking then having the cadets do SFST on the volunteers. I did not drink although the cadets had no idea who had or hadn't had any drinks. When doing the nystagmus testing on me, each cadet claimed I had been drinking. So, while that test is a valid test, some of the population will fail that one also. Once again, it is up to the officer's training to determine how to proceed in most cases, and it usually isn't that difficult to figure out. And yes, defense attorneys can get around the law in almost any DUI, OWI, etc no matter how hard the officer works at dotting all the I's and crossing all the T's
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  13. #13
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    Quote Originally Posted by mack View Post
    I think I may have told this story before, but, as an academy instructor I was assisting with the DUI portion of the class, which consisted of volunteers coming in and drinking then having the cadets do SFST on the volunteers. I did not drink although the cadets had no idea who had or hadn't had any drinks. When doing the nystagmus testing on me, each cadet claimed I had been drinking. So, while that test is a valid test, some of the population will fail that one also. Once again, it is up to the officer's training to determine how to proceed in most cases, and it usually isn't that difficult to figure out. And yes, defense attorneys can get around the law in almost any DUI, OWI, etc no matter how hard the officer works at dotting all the I's and crossing all the T's
    They should have been combining it with other observations such as odor of an alcoholic beverage on your breath, red watery eyes, slurred speech, balance etc.
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  14. #14
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    Quote Originally Posted by mack View Post
    So, while that test is a valid test, some of the population will fail that one also.
    This is true, my oldest brother has natural nystagmus and has since he was born. Unless he is wearing contacts (which weigh the eyeball down) it is extremely pronounced. People in his position are recommended to carry a doctor's note explaining the condition, although he is to stubborn.
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  15. #15
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    The SFST battery was developed by NHTSA in order to produce a standardized and validated collection of tests. When administered properly and as a battery of tests, they are highly reliable at identifying a person who's BAC is greater than .10%. That doesn't mean they're perfect, and none is 100% reliable on it's own, especially on its own. Age and obesity, as well as other physical impairments are all factors that effect their reliability.

    A good DUI case consists of multiple indicators, and the SFSTs are only part of that case. Ideally, you have pre-stop driving behavior (though not always; you may have stopped the car for speeding or some other reason, or be at a crash scene for example). You have your observations during your initial encounter with the driver of things like slurred speech, odors of alcoholic beverage or attempts to conceal such odors, disorientation, their statements (I had one guy tell me "I'm drunk!"), and others. Some officers do pre-exit tests like backwards counting To these, you add observations as you have the driver exit; things like difficulties with balance, problems opening the door, and trouble with directions. You then administer the SFSTs, ideally just as they were developed. (In reality... we often improvise things like the line for the 9-step walk & turn...) If a person is, for whatever reason (I once arrested a guy for DUI who had only one leg... that took some improvising.) Finally, you use a pre-arrest breath screen, if available and permitted in your state. Considering all of this, you make the arrest decision, and in most states, are the driver then takes an evidentiary breath test.

    If this case fell apart solely because of the driver's weight, someone took a few shortcuts or gave crappy testimony. Or the prosecutor didn't half try... if there was one.
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  16. #16
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    I just went through SFST and was taught that an extremely obese person very likely could not physically perform the one-legged stand. That would not invalidate any other tests, nor would it in any way effect the HGN.
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    I'm glad we don't have any field sobriety testing here.We go straight to a roadside intoximeter. If you are over the magic number you get locked up for further breath test at the station.
    If you don't have a device roadside or you believe it has not operated correctly you can just lock them up if you believe them to be unfit through alcohol or drugs. some evidence req'd for this such as odour, unsteady on feet, speech slurred etc but no test as such.
    I think we have a bit more lattitude here in some respects.
    If you refuse the tests you get a straight 1 yr driving ban anyway.
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    Meanwhile, fishing in Russia:

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