Law Offices of Jeffrey W. Jensen 111 E. Wisconsin Ave., Suite 1925 Milwaukee, WI 53202-4825
Jeffrey W. Jensen is a criminal defense lawyer in Milwaukee, Wisconsin. He is also a criminal appeals lawyer in Wisconsin.
If you are arrested for operating under the influence of alcohol, you can expect an avalanche of letters from lawyers in the Milwaukee area offering to "help" with your charges. These lawyers spend time making open records requests for all those who have been arrested, and then they spend time writing letters to these people. You have to ask yourself: Why are they so desperate? At the Law Offices of Jeffrey W. Jensen we respect your privacy, and we spend our time working on our client's cases. Therefore, if you would like to learn more about whether we could help you, you can read more about us at Jeffrey W. Jensen, or the Milwaukee Criminal Defense Professionals website.
The surest way to pass the field sobriety tests is to be sober. Likewise, no amount of advice will help a severely intoxicated person to pass the field sobriety tests and this article is not intended to encourage one to drive after drinking too much. Nonetheless, it is not against the law to drive an automobile after having had something to drink. The Wisconsin jury instruction reads that, "Not every person who has consumed alcohol is under the influence of alcohol as that term is used here. What must be shown is that the person has consumed a sufficient amount of alcohol to impair his or her ability to drive safely." One of the primary means by which the police attempt to prove that a person's ability to drive safely is impaired is the field sobriety tests. However, the field sobriety tests are only a rough measure of whether one's ability to drive safely is, in fact, impaired. Therefore, the point of this article is to help motorists avoid a "false" poor performance on the field sobriety tests- that is, a poor performance on the tests causes by something other than intoxication (i.e. nervousness, unfamiliarity with the procedure, and so forth)
Every person who is stopped by the police- and especially one who has had something drink- will be nervous. It is critically important to relax as much as possible. There are many studies that conclusively demonstrate that even professional athletes are unable to perform to their ability when they are feeling nervous. This is why athletes try to go into "the zone" when they compete. The same is true of the field sobriety tests. One cannot perform to one's true ability while scared and nervous.
Part of the relaxation process is to stay seated in your vehicle, speak in your "inside voice", follow the officer's instructions, and have confidence in the fact that you have not had too much to drink and that you will be able to perform these simple tasks if asked. A sure sign of intoxication is the driver who, upon being pulled over, gets out his car, approaches the squad, and blurts, "How's it going officer?" That driver will be ordered back into the vehicle- sometimes at gunpoint.
No one performs the field tests flawlessly. If you make a mistake do not throw up your arms and quit. Keep going as though nothing happened.
What are the field sobriety tests?
When a police officer has stopped a motorist and suspects that the person is under the influence of alcohol the officer will order the driver out of the vehicle and demand that the person submit to a series of field sobriety tests. These tests are "divided attention" tests which means that the tests are designed to roughly measure one's ability to safely drive and automobile. Each test will have a series of instructions and then the driver will be asked to perform the test. The police officer is observing not only the driver's physical performance but also his or her ability to follow the instructions. Generally, the field sobriety tests are not pass or fail. Although officers are trained to observe and to record certain "clues" on each of the tests the final analysis is a subjective one by the officer.
In Wisconsin, police officers generally use the following field sobriety tests: (1) recite the alphabet/months of the year/counting; (2) finger-to-nose test; (3) heel-to-toe; and (4) one leg stand. Officers will sometimes refer to the horizontal gaze nystagmus as a field test but it is not truly a "test" because it merely involves the officer looking for jerkiness in the subject's eye as it tracks a stimulus.
Reciting If you are asked to recite you must be aware of the "divided attention" aspect of the test. The officer may ask you to recite the months of the year. Do not assume that he will instruct you to begin with January. Usually the officer will instruct the subject to recite the months of the year beginning with some month other than January. Listen carefully to the instructions. The same is true with the alphabet and especially with counting. Many times the subject will be asked to count backwards. While reciting make a special effort to enunciate your words and speak loudly enough for the officer to hear. One important "clue" that the officer is looking for is slurred speech.
Finger-to-Nose Test The officer will instruct you to stand with your heels together and your toes pointed outward at a forty-five degree angle. Your arms must be at your sides. Close your eyes and tilt your head backwards. When I tell you to begin the test you should touch your right (or left) index finger to the tip of your nose. Again, be sure to wait until the officer tells you to begin and make sure that you use the designated hand. Take it slowly- you are not graded on speed. The officers is looking to see whether you can follow the instructions, whether you are swaying from side-to-side while in the test position, and whether you can touch the tip of your finger to the tip of your nose.
Heel-to-Toe On this test you will be instructed to stand on an imaginary line with the toe of your back foot up against the heel of your front foot. Your arms must be at your sides. You will again be told to wait until the officer instructs you to begin. The officer will give you a designated number of steps to take in a heel-to-toe fashion counting each one out loud. Again, pay attention to the number of steps. You will also be told to turn around in a specific manner- that is, to pivot on one foot. There is a myth going around that you should ask the officer to allow you to take your shoes off on this test. Unless you are wearing high heels this is a very bad idea. It is much more difficult to maintain balance bare-footed than it is in a pair of shoes. Shoes stabilize the foot making it much easier to maintain balance. This is why ski boots are made of very firm material.
One Legged Stand The subject is asked to stand with his or her feet at shoulder width, raise one foot six inches off the ground with the toe pointed forward, and count out loud to thirty in a "one thousand-one, one-thousand two" manner. Again, do not remove your shoes to perform this test. It will be much more difficult. If you raise your right foot you should lean slightly to your left so that your weight is entirely on your left foot. Do not raise your foot more than six inches. This only makes the test more difficult. If you touch your foot to the ground just raise it again and keep going.
Practice, Practice, Practice
The ability to perform field sobriety tests, like any skill, may be dramatically improved by practice. When you are alone in your room practice the tests set forth above. This not only improves your physical ability it will also give you the confidence to relax if you ever find yourself in the position of having to perform the tests.
Some people are said to be able to "hold their liquor." A person who can "hold his liquor" is no less affected by the alcohol than any other person. The difference is that the person has learned to compensate for the signs of intoxication. He does not stand around talking much too loud, he does not become overly gregarious, and he has learned to balance himself. You can learn to compensate, too. The next time you have had a glass or two of wine privately practice these field sobriety tests.
__________________________________ Schiro & Zarzynski Personal Injury Attorneys Milwaukee, WI 53203 414.224.0825
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Milwaukee criminal defense attorney Jeffrey W. Jensen, of the Law Offices of Jeffrey W. Jensen, a Milwaukee law firm with offices located at 111 E. Wisconsin Avenue, Suite 1925, Milwaukee, Wisconsin, has represented persons throughout the State of Wisconsin. If you will face felony charges in either state court or in federal court you should call 414.671.9484. Attorney Jensen regularly appears in Milwaukee County (Milwaukee criminal defense lawyer), Waukesha County (Waukesha criminal defense lawyer, Brookfield criminal defense lawyer), Washington County (West Bend and Germantown criminal defense lawyer), Racine County (Racine criminal defense lawyer), Kenosha County (Kenosha criminal defense lawyer), Brown County (Green Bay criminal defense lawyer), Fond du Lac County (Fond du Lac criminal defense lawyer), and Winnebago County (Oshkosh criminal defense lawyer)
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