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mum deviation (where the eye can move no further). The stimulus must be maintained at maximum deviation for four seconds and there must be distinct and sustained nystagmus.
Next, the stimulus is again moved left and right to deter- mine whether there is the onset of nystagmus prior to 45 degrees. If so, there are studies that indicate a 77 percent validation for 0.10 BAC or greater. Each test is cumulative, so if there was no nystagmus at maximum deviation, then it is impossible to have noted the onset of nystagmus pri- or to 45 degrees.
2. Walk and Turn Test (WAT): There are two stages: the instruction phase and the walking stage. The driver is in- structed to place arms at side, place the left foot on an ac- tual or imaginary line and place the right foot in front and stand heel to toe while following the officer’s demonstra- tion and directive not to start the test before instructed. The officer must confirm that the driver understands. The officer should ask if there are any physical impairments involving the feet, ankles, knees, back, etc., that may pre- clude performing the test.
The driver is then instructed to begin the test taking nine heel-to-toe steps, maintaining arms at side and not stopping once the test starts. After nine steps, the driver is to pivot on the lead foot turning 180 degrees and return walking heel to toe. Clues of impairment include walking off line, raising arms for balance, failing to walk heel to toe, taking an improper number of steps, walking off line and failing to complete the test.
3. One Leg Stand (OLS) Test: The driver is instructed to stand with feet together and pick one foot up about six inches from the ground and parallel to the ground and the look at the foot and count 1001...1002...1003. This test is to be done without putting the foot down, using the arms to balance and without hopping or swaying. Again, the officer must explain and demonstrate the test and ask if the driver understands the instructions.
Following phase three, the officer must make the deci- sion whether to arrest for DUI. The arrest must be made upon probable cause that the driver is DUI. Probable cause consists of all the clues observed during the three phases. While an arrest need only be based on proba- ble cause, a conviction requires proof beyond a reason- able doubt. If the officer properly accumulates evidence during the three phases and properly conducts the field sobriety tests, there ought to be sufficient evidence for the prosecutor to meet the required standard for proof of DUI. d
For more than 25 years, Robert H. Hanaford has represented clients in the trial and appeal of civil and criminal cases in both State and Federal Courts. He is a leading personal injury attorney concentrating on lawsuits involving death and serious injury resulting from workplace accidents. He can be reached at 312-636-4807 or rhanaford@hanafordlaw.com.
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