Brad Interview Transcript 5

BH – Brant Hart

BS – Brad Smith

BS: Brant, the most intriguing part of representing people charged with driving while impaired is an officer's investigation is usually tailored to observations that he makes of your person. When you are doing field sobriety tests or getting out of an automobile or just generally talking with them or interacting with them. The most common things you hear when you come into court is, the first thing the officer making a comment about how somebody is talking. Now I think the most important thing to say is when you are pulled over and a police officer comes up investigating you for driving while impaired, it's usually because he smells the odor of alcohol on your breath. Now if you have been drinking alcohol, and the person you are speaking to hasn't, if you can think about the last time you talked with somebody that had a drink and you haven't had anything you can smell what is on their breath. And that doesn't mean just because you can smell alcohol on their breath they are a drunk driver. When a police officer comes up to a car he is generally talking with somebody that he has never spoken to before, he doesn't know how they talk, he is usually asking somebody to step out of the car that he doesn't know their athletic ability is or what their health is, or if they have trouble with their knees or their legs or their back. So you are being asked to perform essentially these dexterity tests and the officer is going to be sort of picking different things that he observes and he uses those as his basis to place you under arrest. When you go into court and you watch a DWI trial in action you never ever hear a police officer testify about all of the good things that you did, he is generally picking out very specific things that he would claim are a bad thing. For instance the three standardized field sobriety tests that are used in North Carolina, there are only three verified field sobriety tests, when I say verified that means the department of transportation has verified them for their accuracy. And that is: standing on one leg, it's called the one leg stand, the walk and turn, the most talked about field sobriety test where you stand on a line and take nine steps, turn around and take nine steps back, and a more scientific test that you see ophthalmologist do a lot is called the horizontal gaze and nystagmus test, it's where an officer holds his pen or his finger in front of your face and asks you to follow the stimulus with your eyes and your eyes only and with horizontal gaze and nystagmus he is looking for the presence of what is called eye nystagmus or the popping of your eyes as you follow the stimulus with your eyes. Now most people when they are doing the horizontal gaze and nystagmus test when they come in and talk with you they say well I didn't have any trouble following his stimulus with my eyes I did that fine and he's not testing for your ability to follow it he's again looking for this popping in the eyes. Well there is about one hundred different reasons why your eyes can exhibit eye nystagmus so that test and that test alone is generally not where an investigation ends. So an officer usually asks you to stand on this line and walk down and also to stand on one leg. Well the trouble with those tests is you're not trying out for the Olympics games; it's not the presidential fitness test like you took when you were in high school. Again you're having an officer make observations or critique you for this test when he doesn't know anything about you. Well when you are pulled out of a car and you are asked to do these tests and the ramifications of not necessarily performing them correctly or scoring a perfect score is going to jail you can all tend to be really nervous. So, are you required to do standardized field sobriety tests on the side of the road? You're not. If you refuse to do standardized field sobriety tests the irony of it is the officer is probably going to take you to jail for refusing to perform his test. So it's always sort of a difficult thing to say as an attorney without knowing anything more about how much the person has had to drink, what their athletic ability is, how they are going to perform on these tests even when they are sober to make a judgment call is it always intelligent to do standardized field sobriety tests. But what I do tell people is anybody can find themselves being investigated for DWI, if you go to dinner and have a drink and you get stopped at a check point and an officer smells alcohol on your breath, he's probably going to conduct a driving while impaired investigation on you. I think what you have to realize when you are out on the side of the road performing tests or being asked to perform tests is making sure you understand exactly what the officer's instructions are and making sure you exactly understand what the officers expectations are of you. If you have any sort of physical deficiencies or any sort of medical problems tell the officer about that, and don't dare perform the test if you do have these sorts of problems. It can simply lead to you being arrested for something, and having your mugshot on the internet, and having to go through this horrible process when simply communicating to an officer that these are the issues I have with my legs, my back, my knees, these are the health issues I have when that can potentially save you from being arrested at all.

Continue to Brad Interview Transcript 6 >>