A-B-C Is Not As Easy As 1-2-3 After A Few Cocktails: Another Reason To Say NO To Any And All Field Sobriety Tests!

Now that we are a couple days into the Summer Season, most local law enforcement agencies will start to implement their safe driving campaigns.  State Troopers, Sheriff Deputies, and City Police will be cracking down on speeders, distracted drivers (texting while driving), and DUI/OVI.  These campaigns will be marketed all over local news channels and will highlight what will happen if you are one of the unlucky few that law enforcement is targeting.  To be honest, I am all about the safe driving campaigns put on by local law enforcement!  There are a lot more drivers on the road, and we need those drivers to be safe drivers.

Alright, now that I have given you my Dudley Do-Right speech, if you find yourself pulled over for any traffic violation; please for the love of everything holy…REMAIN SILENT!  Especially if you are being accused of OVI/DUI!!  It is your constitutional right to remain silent during any and all questioning.  This includes questioning by the officer on the side of the road.  Simply instruct the officer that you have a constitutional right to remain silent and you want to invoke that right.  Then you repeat the following, “Please STOP asking me QUESTIONS WITHOUT MY ATTORNEY PRESENT!”

Most people hearing this advice will fire-back, “but the officer will issue me a ticket!”  Who cares!!!  If the officer is nice and gives you a warning, pat yourself on the back for being one hell of a salesman!  But, more times than not, you will be issued a traffic ticket.  So, don’t start singing like a canary and admitting to a violation.  And if you are pulled over for suspicion of OVI/DUI, you can forget about any warnings!  That is when you really need to shut-up and immediately ask for an attorney.   I can tell you right now, when an officer asks you if you have been drinking or are on drugs, his OVI Spidey Sense is tingling!  Once again, just remain silent and do not submit to Field Sobriety Tests!  Field Sobriety Tests are meant for you to fail!  No one can pass them!

Roadside Field Sobriety Tests are completely voluntary!  Meaning you do not have to submit to them.  Some of these tests include:

  • Checking your eyes with a pen
  • Walking on a straight line (imaginary or real)
  • Balancing on one leg
  • Reciting the Alphabet
  • Counting Backwards
  • Tilting your head back for 30 seconds
  • And many more

To give you an idea of how not remaining silent and submitting to Field Sobriety Tests will only screw you over in the long-run, let’s take a look at a local case out of Kettering, Ohio, entitled State v. Wood.

In State v. Wood, Mr. Wood was alleged to be the at fault driver in an injury traffic accident and OVI.   Most likely not getting a desirable plea deal, Wood filed a Motion to Suppress in order to suppress the evidence obtained by the police officer.  This evidence collected by the officer was used to establish that Wood was under the influence of alcohol.  After Wood’s motion was overruled by the trial court, he took his cause up to the Second District Court of Appeals for them to decide whether or not the officer’s observations should be suppressed.

Typically, an officer observes three phases of alcohol detection.  The phases are broken down as, 1) Vehicle in Motion; 2) Personal Contact Phase; and 3) Pre-Arrest Screening.  The officer in Wood’s case did not observe the Vehicle in Motion Phase (think observing weaving, swerving, etc.) because he arrived on scene after the car accident.  So, let’s take a look at the other two phases of Personal Contact and Pre-Arrest Screening!

Personal Contact Phase

Personal Contact Phase is where the officer begins to look for impairment clues while he is talking with you on the side of the road.  The officer is using his sense of sight, hearing, and smell to detect various “clues” of impairment.  During the officer’s interaction with Wood, the officer detected the following:

1)         A strong odor of alcoholic beverage about his person (Smell);

2)        Wood’s eyes were red and glassy (Sight);

3)        Wood was unsteady on his feet (Sight);

4)        Wood’s speech was slurred (Hearing), and;

5)         Wood seemed a little slow or confused when responding to the officer (Sight & Hearing).

Based on these observations, the officer began to question Wood’s alcohol consumption.  These facts seem pretty damning for Wood up to this point, but they can be sliced and diced by an experienced OVI attorney if Wood kept his mouth shut!  In my mind, no kidding Wood was unsteady on his feet, that his speech was slurred, and that he seemed a little slow or confused when talking to the officer.  The man just got into a car accident!  Sounds like head trauma to me.  Everyone at any given time has red and glassy eyes.  Do you work late?  Stare at a computer screen all day? Rub your eyes because you are tired or trying to stay awake?  Well guess what?!? You will have red and glassy eyes without any influence from alcohol.  A strong odor of alcoholic beverage about a person is by far my favorite “clue” that officers state every time they talk with an individual they believe to be under the influence of alcohol.  This observation does not mean a damn thing without knowing when the individual started and stopped drinking alcoholic beverages!

I always ask the officer the following as it relates to an odor of alcoholic beverage about an individual:

  • From the strong odor of an alcoholic beverage on and around Mr. Suspect, could you determine what type of alcohol Mr. Suspect consumed?
  • Could you determine the number of alcoholic drinks consumed based on this odor?
  • Could you determine when Mr. Suspect consumed his first drink based on this odor?
  • Could you determine when Mr. Suspect consumed his last drink based on this odor?

Bottom line, an officer cannot deduce the number of drinks nor the length of time over which a motorist consumed alcoholic drinks from the odor of alcohol alone!  As you can see, if Wood had just kept his mouth shut there would have been plenty of ways to explain these so called “clues” the officer used to determine that Wood may be under the influence of alcohol.  Oh, just in case you were wondering if Wood admitted to drinking to the officer, he most certainly did!  Wood told the officer that he is an alcoholic and drinks about one-half liter of vodka a day.  Well, that admission was a real kick to the balls.

In addition, to the officer using his sight, hearing, and smell to find clues of alcohol impairment, the officer may use Pre-Exit Interview Techniques during the Personal Contact Phase.  These techniques include, 1) Questioning (trying to confuse you); 2) Alphabet Test; 3) Count Down Test; and 4) Finger Count Test.  Now these tests are not considered scientific and are supposed to be completed before the traditional Field Sobriety Tests.  In Wood’s case, he did some of these non-scientific tests after he completed the Field Sobriety Tests.  So, let’s save the discussion of these tests when we talk about the Pre-Arrest Screening Phase.

Pre-Arrest Screening

During the Pre-Arrest Screening phase, the officer utilizes three scientifically validated psychophysical (field) sobriety tests.  These tests include Horizontal Gaze Nystagmus (eye test), Walk and Turn, and One Leg Stand.  All three of these tests are complete junk science!  How often do you stand on one leg, look down at your raised foot, and count out loud?  How often do you walk down the street with your hands at your side, walking heel to toe on an imaginary line, while looking down at your feet and counting out loud?  How often does a friend, family member, or complete stranger ask you to follow their pen while shining a flashlight in your eyes?  I imagine not very often because it is not natural!

In Wood’s case, he unfortunately failed all three of these “scientific tests.”  After the “scientific tests” were completed, the officer conducted the alphabet and finger-to-nose test on Wood.  And this ladies and gentlemen, is where Wood’s argument to the appellate court rested.  Wood argued that, 1) the alphabet and finger-to-nose test are not scientific and 2) the officer acted improperly by having him perform the alphabet and finger-to-nose test after performing the so called scientific tests mentioned above.

As you can guess, the 2nd District did not find these arguments appealing.  The court stated, “Although the National Highway Traffic Safety Administration manual suggests use of the alphabet test and other tests and techniques to help determine whether the HGN test, walk-and-turn, and one leg stand test should be administered, we see no reason why the officer could not perform the alphabet test and the finger-to-nose test after those other tests.”  The court goes on to say, “the fact that the alphabet test and the finger-to-nose test may not be recognized as reliable or accepted as the HGN test, walk-and-turn, and one leg stand test does not preclude their consideration.”  With the final blow, the court concludes, “a suspect’s inability to recite the alphabet or touch his nose may be considered, under the totality of the circumstances, along with observations of his slurred speech, bloodshot eyes, or an odor of alcohol to determine whether he was driving under the influence of alcohol.”

Wood’s plight of fighting his OVI/DUI charge could have been much different had he just shut up and refused the Field Sobriety Tests!  The only one who benefits from Field Sobriety Tests is the officer!  He is collecting evidence to use against you in court!  Remember when O.J. Simpson said the glove was not his and tried every which way in court to show it did not fit?  That needs to be you!  You need to channel your inner O.J. and deny everything, even though everyone knows you had a few cocktails!  Do not give the officer the opportunity to collect evidence against you!

Don’t get me wrong, Wood was getting arrested for suspicion of OVI/DUI had he refused the Field Sobriety Tests.  That is right, with or without the Field Sobriety Tests, Wood was going down!  So, once again why the hell would you make the officer’s life easier by allowing him to collect evidence against you?

Now if you find yourself in a similar situation like Wood’s situation and refuse the Field Sobriety Tests, do not freak out when the officer places you under arrest!! Remain calm and comply!  Remember most Police Vehicles have video and audio recording…inside and outside of the vehicle!  ACT ACCORDINGLY!!  CONTINUE TO REMAIN SILENT!

Government Can’t Stop Tone Dougie’s Fresh Beats and Fly Lyrics: The U.S. Supreme Court’s Take On Facebook Threats

Surfing through my Instagram account the other day, I found a picture post that is very appropriate for this case.  The post reads, “If you’re having a bad day, just remember someone from your hometown is still trying to become a rapper.”  Unfortunately for one Anthony Elonis, not only was he having a bad day, he was also finding his inner rapper under the guise of Tone Dougie.

In Elonis v. U.S., the U.S. Supreme Court tackled whether or not Tone Dougie had to be aware of the threating nature of his communication on Facebook to various individuals.  Under 18 U.S.C. §875(c), it is a federal crime to transmit in interstate commerce “any communication containing any threat…to injure the person of another.”  I have to hand it to Tone Dougie though; his rap lyrics game was strong enough to put this statute to the test.

Prior to posting threating lyrics, Tone Dougie’s wife of seven years left him and took their two young children.  Obviously upset, Tone Dougie took to Facebook to put his thoughts out to this crazy world in hopes others like him could understand his pain.  Tone Dougie expressed this anger through his rap lyrics.  When Tone Dougie first started posting his rap lyrics, he would post disclaimers with his lyrics stating that his writing was therapeutic.   However, over the course of several Facebook posts, Tone Dougie managed to make threats to his co-workers, patrons at his place of employment, his estranged wife, police officers, a kindergarten class, and an FBI agent.

It seems that Tone Dougie’s grand entrance into the rap world started around Halloween, 2010.  Being that fun loving crazy rapper, Tone Dougie posted a picture of himself and his co-worker at the Halloween Haunt they were both working.  In the picture, Tone Dougie was holding a toy knife against his co-worker’s neck, with the picture caption stating “I wish.”  Unbeknownst to Tone Dougie, the Chief of Park Security (yep that is a real job title) viewed this picture post and immediately fired Tone Dougie.  I know what you are thinking right now….this so called Chief of Park Security is a real a-hole!

Staying true to his hardcore rapper roots, Tone Dougie laid down some serious poetry against the Chief of Park Security.  Tone Dougie slammed him with the following:

“Moles!  Didn’t I tell y’all I had several?  Y’all sayin’ I had access to keys for all the f***in’ gates.  That I have sinister plains for all my friends and must have taken home a couple.  Y’all think it’s too dark and foggy to secure your facility from a man as mad as me?  You see, even without a paycheck, I’m still the main attraction.  Whoever thought the Halloween Haunt could be so f***in’ scary?”

Deep….real deep and troublesome all at the same time.

After threating co-workers and patrons of the amusement park, Tone Dougie set his lyrical talents on his estranged wife.  Through his Facebook page, Tone Dougie made some pretty threating remarks about using a mortar launcher to kill his wife.  To really show he meant business, Tone Dougie stated that “the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room….”  To drive this mortar launcher theory home, good ole Tone Dougie posted a diagram of his estranged wife’s house!  And it was accurate!  But to show he is really just a troubled artist, Tone Dougie wrote at the bottom of the post, “Art is about pushing limits.  I am willing to go to jail for my Constitutional rights.  Are you?”  To be honest, I was not completely on board at first about the whole mortar launcher to take out a house, but after Tone Dougie called me out about fighting for my Constitutional rights, I had to take a moment and truly think about what those rights mean to me.  You are good sir…you are good.

Moving on, Tone Dougie’s estranged wife was obviously scared and filed for a protection order against Tone Dougie.  Not seeing the true artistic talent of Tone Dougie’s poetry and lyrics, the judge ordered a three-year protection order against Tone Dougie.  First the Chief of Park Security and now this judge!  How these two individuals are missing the whole artistic vibe of therapeutic threats is completely beyond me.  But this three-year protection order can’t stop and won’t stop Tone Dougie.  Tone Dougie’s responds with the following:

“Fold up your protection from abuse order and put it in your pocket.  Is it thick enough to stop a bullet?  Try to enforce an Order that was improperly granted in the first place.  Me thinks the Judge needs an education on true threat jurisprudence.  And prison time’ll add zeros to my settlement…And if worse comes to worse, I’ve got enough explosives to take care of the State Police and the Sheriff’s Department.”

To go from violence, then to talk of money, then to revert back to violence was truly original and something this world has never seen in lyrical poetry.

Feeling the flow of his rap lyrics, Tone Dougie decided to go big and truly let the Facebook world know that he means business with regards to his therapeutic threats.  Tone Dougie took center stage and went after an elementary school.  So without further ado, I give you the following:

“That’s it, I’ve had about enough.  I am checking out and making a name for myself.  Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined.  And hell hath no fury like a crazy man in a Kindergarten class.  The only question is…which one?”

Okay, a little too soon Tone Dougie.  Not cool at all.

Well why this lyrical gem was being posted, that jerk Chief of Park Security ratted out Tone Dougie to both the local police and the Federal Bureau of Investigation!  If I ever see this Chief of Park Security, I have the right mind to just push him off his Segway!

So after the post about the school shooting, a FBI Agent shows up to Tone Dougie’s house to discuss the post.  According to FBI Records obtained through top secret channels, Tone Dougie was described as polite but uncooperative.  So I guess he used please and thank you with the FBI Agents, while at the same time he dodged their questions?  Anyways, after the Feds left, Tone Dougie posted a little therapeutic poem entitled “Little Agent Lady.”  Let’s take a look at this poem….

“You know your s***’s ridiculous when you have the FBI knockin’ at yo’ door.  Little Agent Lady stood so close.  Took all the strength I had not to turn the b**** ghost.  Pull my knife, flick my wrist, and slit her throat.  Leave her bleedin’ from her jugular in the arms of her partner [cue laugh reel].  So the next time you knock, you best be serving a warrant.  And bring yo’ SWAT and an explosives expert while you’re at it. Cause little did y’all know, I was strapped wit’ a bomb.  Why do you think it took me so long to get dressed with no shoes on?  I was jus’ waitin’ for y’all to handcuff me and pat me down.  Touch the detonator in my pocket and we’re all goin’ BOOM!  Are all the pieces comin’ together?  S****, I’m just a crazy sociopath that gets off playin’ you stupid f***s like a fiddle.  And if y’all didn’t hear, I’m gonna be famous. Cause I’m just an aspiring rapper who likes attention who happens to be under investigation for terrorism cause y’all think I’m ready to turn the Valley into Fallujah.  But I ain’t gonna tell you which bridge is gonna fall into which river or road.  And if you really believe this s***, I have some bridge rubble to sell you tomorrow…BOOM! BOOM! BOOM!”

Tone Dougie….you sir, are not too bright.

Well you won’t believe what happens next in the saga of Tone Dougie!  That is right; this wannabe rap star is indicted, goes to trial, is found guilty at trial, then begins the appeal process.  And that is where the U.S. Supreme Court comes into play to discuss Tone Dougie’s lyrics.

The statute Tone Dougie was indicted under requires that a communication be transmitted and that the communication contain a threat.  It does not, however, specify that the defendant must have any mental state with respect to the above elements.  Basically, it does not indicate whether the defendant must intend that his communication contain a threat.  Which was a problem for the U.S. Supreme Court as Tone Dougie’s conviction was premised solely on how his posts would be understood by a reasonable person.

The reasonable person standard is a familiar feature of civil liability in tort law, but the Court found this inconsistent with “the conventional requirement for criminal conduct – awareness of some wrongdoing.”  Based on this theory, the Court found that Tone Dougie’s conviction could not stand because the jury was instructed that the Government need to only prove that a reasonable person would regard Tone Dougie’s communications as threats.  This was an error, according to the Court, as Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.

With that said, the Court found that “there is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.”

So the question now is did Tone Dougie purposely transmit his lyrics for the purpose of issuing a threat or knowingly understood that his lyrics would be viewed as a threat?

Either way, I think Tone Dougie will eventually end up in federal prison.  But on a future album sales point of view, going to federal prison will only gain street credibility!