If the driver seems impaired due to any of the below reasons, the officer will ask the driver to exit the vehicle. As the driver exits, the officer will gather evidence of impairment from a driver who:
- Shows angry or unusual reactions
- Cannot follow instructions
- Cannot open the door
- Leaves the vehicle in gear
- “Climbs” out of vehicle
- Leans against vehicle
- Keeps hands on vehicle for balance
Pre-Arrest Screening
The officer is now going to have you do some balancing exercises, which are basically gymnastics that do not gauge your ability to operate a vehicle. Nor is there any scientific evidence to show that these gymnastics measure impairment.
Horizontal Gaze Nystagmus
The officer is going to do a check of your eyes, to see if they bounce at certain times. But, this officer is not an ophthalmologist, does not have medical training, and does not know how your eyes look normally.
Each eye is checked for three different things, which they call “clues.” The maximum number of clues in one eye is 3 and the maximum number in both is six. According to the NHTSA manual of 2006, if 4 or more clues are evident, then there is a 77% chance the person’s blood alcohol concentration is above .080%. But, what the NHTSA manual fails to train the officers on is that with 4 clues, the person’s blood alcohol level could be as low as .040%
Walk and Turn Exercise
Officers look for the motorist to exhibit only 2 out of 8 possible clues to fail this test. This test is set up for failure. The clues the officer is looking for include:
- Can’t balance during instructions
- Starts too soon
- Stops while walking
- Doesn’t touch heel to toe
- Steps off the line
- Uses arms to balance
- Loses balance on turn or turns incorrectly and
- Takes the wrong number of steps
One Leg Stand Exercise
The officer will require the motorist to stand on one leg and count for 30 seconds. The officer is trained to carefully observe the motorist’s performance and look for 4 specific clues:
- Sways while balancing
- Uses arms to balance
- Hops
- Puts foot down
Many people say they couldn’t pass those roadside gymnastics even if they didn’t have a drink! They are right. Repeatedly, clients will come into this office who are overweight, have numerous extensive medical problems, and they can’t pass the balancing or walking tests.
Performing the roadside gymnastics IS NOT REQUIRED in Ohio. Police Officers in Ohio CANNOT arrest you merely because you refuse to perform the roadside gymnastics. Will they? Most likely—but that will give you evidence in your defense. The less subjective information you give the police officers, the less likely that your Constitutional Rights will be violated by an unlawful arrest.
If you do find yourself being arrested for operating a vehicle while under the influence (OVI/DWI/DUI), please do not hesitate to seek representation. Skip Potter will do whatever he can to get your charge reduced or dismissed. Contact us now!
Source: http://www.publicsafety.ohio.gov/links/DPS0011.pdf
