The "Walk and Turn Test" Used by Police in New Hampshire DWI Cases by New Hampshire DWI Defense Lawyer Mark Stevens 603-893-0074

One of the tools the police will try to use to convict a driver arrested for DWI in New Hampshire is the "walk and turn test", one of the so-called "field sobriety tests" conducted at the roadside. Just prior to a DWI arrest, the police officer will try to get the driver to perform this unusual "test". The procedure for administering the "test" is spelled out below. As you read this, ask yourself what any of this has to do with one's ability to drive a car. The police are taught a mantra that this is a "divided attention test", and that somehow a driver needs to be able to perform this weird task nearly flawlessly to prove sobriety. They are also trained that if the driver can't do it he's drunk. But unless you're a gymnast or a tightrope walker, you're likely to fail this strange exercise and get arrested for DWI.

The following is an excerpt from the National Highway Traffic Safety Administration ("NHTSA")'s manual used in police training titled "DWI Detection and Standardized Field Sobriety Testing" (February 2006 Edition). The quotations from the NHTSA manual is italicized:

Procedures for Walk and Turn Testing

1. Instructions Stage: Initial Position and Verbal Instructions

For standardization in the performance of this test, have the suspect assume the heel-toe stance by giving the following verbal instructions, accompanied by demonstrations:

o "Place your left foot on the line" (real or imaginary). Demonstrate.

o "Place your right foot on the line ahead of the left foot, with heel of right foot against toe of left foot." Demonstrate.

o "Place your arms down by your sides." Demonstrate.

o "Maintain this position until I have completed the instructions. Do not start to walk until told to do so."

o "Do you understand the instructions so far?"

2 Demonstrations and Instructions for the Walking Stage

Explain the test requirements using the following verbal instructions, accompanied by demonstrations:

o "When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back." (Demonstrate 3 heel-to-toe steps).

o "When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot, like this." (Demonstrate).

o "While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud".

o "Once you start walking, don't stop until you have completed the test."

o "Do you understand the instructions?" (Make sure suspect understands.)

o "Begin, and count your first step from the heel-to-toe position as "One".

3. Test Interpretation

You may observe a number of different behaviors when a suspect performs this test...Look for the following clues each time the One Leg Stand test is administered:

A. Cannot keep balance while listening to the instructions.

B. Starts before the instructions are finished..

C. Stops while walking.

D. Does not touch heel-to-toe.

E. Steps off the line.

F. Does not touch heel-to-toe.

G. Uses arms for balance.

H. Improper turn.

I. Incorrect number of steps.

If the officer thinks you did two of these eight things wrong, however slightly, you lose. 6 out of 8 on this test, a 75% or "C" on any sort of objective test, is a failure at the roadside and you get arrested. If you can't get an "A" on this you'll be arrested.

What about the fact that you'll be doing this exercise on ice if you do it in New Hampshire this weekend? It doesn't matter according to the folks at the government who cobble these manuals together. In the same NHTSA manual, at page VIII-11 pronounces the following:

"Test Conditions

Walk-and-Turn test requires a designated straight line, and should be conducted on a reasonably dry, hard, level, non-slippery surface. There should be sufficient room for suspects to complete nine heel-to-toe steps. Note: Recent field validation studies have indicated that varying environmental conditions have not affected a suspect's ability to perform this test"

Do you buy what they're selling? Do you think your ability to walk touching heel-to-toe with your arms by your side on the side of an interstate highway is unaffected by whether it is is snowing, raining, or if we are in the midst of an ice storm. Not according to the police DWI manual. Well I guess it's just gotta be so then right?

Beyond the absurdity of snow and ice having no effect on a driver's ability to balance, the larger question remains: what does that all have to do with driving? Fair question. Unless you are a gymnast, how often do you ever walk like that? Do you really need to "divide your attention" to drive? Isn't it actually better to focus your attention on one thing, like say, driving, when you are driving, rather than "divide it"?

PREPARATION FOR THE WORST CASE SCENARIO: Try this absurd test on your own at home and see if you can ever pass it. It may help you make a more informed decision when the cops ask you to do it at the roadside, especially in the wintertime. If you are asked to do it, it is highly likely that the officer has already decided to arrest you, and he is now in the evidence gathering stage. Choose whether to incriminate yourself very carefully.

Have a safe weekend,


Mark Stevens

http://www.ByeByeDWI.com

http://www.ByeByeOUI.com

http://www.ByeByeDUI.com

Legal Advertising

Guilty if You Cooperate? Blowing Into the Breath Test Hose Can Get You Convicted, Whether You're Drunk or Sober by Mark Stevens 603-893-0074

New Hampshire has a DWI law that prohibits you from driving while intoxicated. No one encourages any one to drive drunk, so a law that prohibits drunk driving makes logical sense. But that's only half of the law. The law also includes a "per se" provision that prohibits people from driving with a breath or blood alcohol concentration of .08 or higher, or a .02 or higher of the driver is under age 21. The .08 and the .02 numbers have absolutely nothing to do with whether the driver is drunk or not; in fact that's why the numbers were created, to make it easy for the state to prosecute people whether they're drunk or not. Few drivers under the age of 21 are drunk at a .02 level, not even close. It's just an arbitrary number with origins in politics, not science.

Upon arrest for DWI, the driver is faced with a difficult decision: whether to blow into an old box, placing his faith, freedom and right to drive in the precision and accuracy of an old box with a rubber hose attached to it. Or the driver could refuse and face a potential license suspension. If the driver asks the police officer any questions about the choice, the police are trained to say that they can't help them, or they refer the driver to a single-spaced, 8 point font explanation that doesn't really tell the driver what to do even if they manage to read it. Here is the law:

RSA 265-A:2 (2008)

265-A:2 Driving or Operating Under Influence of Drugs or Liquor; Driving or Operating With Excess Alcohol Concentration.

I. No person shall drive or attempt to drive a vehicle upon any way or operate or attempt to operate an OHRV:

(a) While such person is under the influence of intoxicating liquor or any controlled drug or any combination of intoxicating liquor and controlled drugs; or

(b) While such person has an alcohol concentration of 0.08 or more or in the case of a person under the age of 21, 0.02 or more.

II. No person shall operate or attempt to operate a boat while under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and a controlled drug or drugs, or while such person has an alcohol concentration of 0.08 or more or in the case of persons under the age of 21, 0.02 or more.

So, if you get arrested for DWI in New Hampshire the state can prove your guilt one of two ways: either that you're drunk or that the old gray box said your breath alcohol concentration was over the legal number, whether you're drunk or not. If you blow, the state gets two chances to prove you guilty. If you refuse, they get only one chance, and they have to prove beyond a reasonable doubt that you were actually intoxicated. If you blow, you're guilty if you cooperate under this legislative scheme. The state will throw both charges against the wall and see if one can stick.

Once the driver makes the ill-fated decision to blow, the police will add a second DWI charge against the driver: the DWI "per se charge". This is Latin for "by itself". Choose wisely whether you will make it easier for the state to convict you when you decided whether to blow into the breath testing hose.

Have a safe weekend,

Mark Stevens
5 Manor Parkway
Salem, NH 03079
603-893-0074

http://www.byebyedwi.com
http://www.byebyedwi.blogspot.com