"Hocus, Pocus, I Waive the Magic Pen & You're Drunk"- by Mark Stevens
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The "Follow the Pen Test" in New Hampshire
The first test in the three-part series of "field sobriety tests" that a driver typically endures at the roadside immediately prior to his or her DWI arrest is the horizontal gaze nystagmus test. This is commonly called the "HGN" or the "gaze" test by the police. This "test" is done by the officer holding a pen or his finger about a foot from the driver's face, then waving it slowly from side to side several times. It is designed to check for a "jerking of the pupils" during the pen wavings. The officer typically tells the driver to stand with his or her feet together and his or her arms by her side, and to follow the officer's pen with his or her eyes only (in other words not to move his or her head).
Usually the police will demand that you reach out and touch the tip of the pen with the tip of your index finger. This is another trick. If you touch anywhere but exactly on the tip of the pen, with any other part of your finger but the tip, this will be prominently featured in his narrative police report as a sign that you were drunk.
The police are trained to call their pen a "stimulus" in order to make the exercise sound more scientifically reliable than it is. Most drivers think they have "passed" this "test" because they complied with the officer's instructions to hold their head still. Quite to the contrary, any minor jerking of the pupils, which can be caused by hundreds of reasons other than alcohol ingestion, will cause the driver to "fail" this test.
One thing to watch out for just before this "test" starts is a request by the police to "check your eyes". This sounds pretty innocuous, but it is really just a way to get you to comply with the "testing" that you cannot be forced to do. Logically, why would you want a cop to give you an eye exam in the dark? REMEMBER: YOU CANNOT BE FORCED TO SUBMIT TO THE PEN TEST OR ANY OTHER "FIELD SOBRIETY TESTS" AT THE ROADSIDE!!!!
The police will often say that they would like you to step out of your car "to check and see if you are okay to drive". Once you are asked to step out of your car the chances of you stepping back into it are slim. Think twice before you give the police any evidence to use against you!
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For an interesting article on wrongful diagnoses regarding "horizontal gaze nystagmus" click below:
Horizontal Gaze Nystagmus - more information
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Vital Tips to Never Forget While Driving
Especially on holiday weekends
Roadblocks are the outcomes of government funding - they'll stop every car just to see if anyone may be drunk. And the likelihood that 100% of the stopped drivers are drunk? Not very high. This is the first problem with roadblocks. These "sobriety checkpoints" don't even end up finding drunk drivers! For example, the police will stop about 100 cars before they even find ONE person of whom they SUSPECT of a DWI. But, what they end up doing is arresting people for irrelevant crimes - other types of motor vehicle arrests (ones not pertaining to DWI), inspection, violations, people with warrants, etc. Then, they take these arrests and report, "SIX arrested at DWI checkpoint," only to find out there was one or maybe, two arrested for DWI.
To avoid run ins with the police during holiday weekends - or any day for that matter - follow these simple rules that will cross you off of the police's list:
Make sure your inspection stickers and registration are valid and up-to-date
When driving into a roadblock, or even driving by a police cruiser, you must always make sure your inspection sticker and registration are accurate and up-to-date. If not, you can almost guarantee that you will be hassled possibly fined. Remember, the police will pull you over for any reason they can get their hands on, whether it is relevant to DWI or DUI suspicion or not. Once the police have you stopped for a minuscule reason such as this one, they're one step closer to seeing if you could perhaps be drunk driving, or are carrying drugs in your car.
The penalty for violation a section of the motor vehicle code is $60, but you'll really pay the price if police smell alcohol or suspect that you've been drinking, simply for the lack of an inspection sticker.
Unfortunately, many drivers who are initially stopped for this minor violation end up charged with DWI, DUI or OUI. AVOID all of this by making sure your stickers are up to date!
2. Make sure your plate lights and other lights are working
All drivers during the night should make sure all their vehicle's lights are working, not only for their own safety, but to avoid interaction with the police. As previously stated, police will take any chance they can to pull drivers over, no matter how minor the violation may be. Generally, the driver may be following all rules of the road - obeying the speed limit, maintaining proper lane control, steady driving - but is still being pulled over for reasons unknown to the driver.
The number of stops for equipment violations have increased over the years, not because the police have a concern over the functioning of plate lights, or scolding drivers for not using their turn signals. Rather, the police have a broader goal: the police have co-opted the motor vehicle code to fight the war on drugs, and many DWI arrests ensue after these stops when the police can't find any drugs after the stop.
Avoid giving the police some of these chances to legally stop you by making sure that all your lights are functioning, your registration and inspection stickers are up to date, and your license is valid.
PREPARATION FOR THE WORST CASE SCENARIO:
It isn't a bad idea to prepare for this event, even if you least suspect it, there is still a strong chance this could happen to you someday. Always make sure your license and registration is in an easy place to find, so you can quickly and effortlessly produce it upon demand. Never put your license in a difficult place to find, or a place you'll know you'll forget. Practice taking your license out of your wallet in your own home.
CONSIDER GETTING A REGISTRATION HOLDER TO KEEP YOUR VEHICLE REGISTRATION IN. If you do not have one send me an e-mail with your mailing address and I will send you a registration holder for each of your vehicles free of charge. After, you can practice producing your license and registration fairly frequently. It will make it easier to do if you ever have to produce them under a pressurized roadside situation.
If you ever charged with a DWI, DUI, or OUI call:
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ByeByeDWI Dec 12, 2009 @ 9:20 am | delete
- Thanks for your comments Brian. Here in New Hampshire DWI trials the officer's testimony about the Here Goes Nothing test are admissible. This usually consists of the officer memorizing the three things they are supposed to recite, then saying that they saw all three things twice in each eye. The only time it's even mildly interesting is when they fail to memorize the clues correctly.
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Attorney Brian E. Simoneau
Dec 11, 2009 @ 7:46 pm | delete
- Conventional field sobriety tests are designed to determine whether a driver is under the influence of alcohol by measuring the driver's balance, coordination, and ability to follow instructions. These tests are based on the theory that someone who is intoxicated will not demonstrate the balance, coordination, and ability to follow directions which is required to pass the tests. This theory is seriously flawed, because there are a litany of other potential causes for ?failing? these roadside gymnastics.
In addition to the conventional field sobriety tests, many police officers use the horizontal gaze nystagmus test. This test measures various aspects of involuntary eye movements, by having the DUI suspect follow a stimulus (usually a pen) with his eyes, without moving his head. While it is common knowledge that alcohol consumption can diminish balance, coordination, and the ability to follow directions, the medical phenomenon of nystagmus is outside of the common knowledge of a layperson. Therefore, expert testimony should be required as a condition to the admissibility of HGN related evidence. Massachusetts courts have long required this. See Commonwealth v. Sands, 424 Mass. 184 (1997).
Brian E. Simoneau
Boston DUI Attorney
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DUIAttorney
Mar 7, 2009 @ 1:17 pm | delete
- I am amazed at the number of attorneys who don't understand how the tests work. How can you cross examine a cop if you don't understand how he is supposed to the tests. Mark Stevens understands HGN and is able to effectively cross the cop.
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