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Fact #9:
If you are ill or have been in an accident in your DUI or DWI investigation and are taken to the hospital for treatment, you are required to give blood. But there must be a reason to take you to the hospital, not just because the Officer wants you to take a blood test. In California you have the right to choose between a breath or blood test. Always choose breath at the police station; not the hand held breath test in the street unless the Officer tells you that it is the chemical test and not a preliminary test. Now if the Officer suspects that you are under the influence of drugs, the Officer may also require you to take a urine or blood test in addition to the breath test, but the Officer must tell you so, and if that is the case, take it, but never request another test after you have taken the breath test at the police station even if one is offered.

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One Leg Stand

In order to perform this test, it must be performed on a hard, dry, level, non-slippery surface. Conditions must be such that the suspect would be in no danger if he or she were to fall. Certain wind/weather conditions obviously may interfere with and affect the validity of this test. This test should not be given to persons who are more than sixty-five years of age, more than fifty pounds overweight, or with physical impairments that interfere with balance. Individuals wearing heels more than two inches high should be given the opportunity to remove their shoes as this may diminish the reliability of the results. The officer is trained not to give this test if there is not adequate lighting to perform it. In total darkness, even the average, sober person may have difficulty with this test, due to their visual frame of reference being taken away.

It is imperative that the officer observe the DWI suspect from at least three feet away, and remain as motionless as possible while the suspect is performing this test. If this is not done, the test may be interfered with and ultimately affect the results and validity. In the administration of this DUI test, there is also two separate stages involved. The first stage is also called the "Instruction" Stage. The test is initiated by giving verbal instructions, followed by and accompanied by demonstrations of those instructions. The officer is trained to advise the suspect to stand with their heels together and arms down at their sides. The officer must demonstrate this. The officer must also inform the suspect not to start the test until told to do so, and must receive an indication from the suspect that they understand the instructions so far and to document this acknowledgement. There are no scoring factors involved until the suspect is into the next stage which is called the Balance and Counting Stage, unless the suspect can not perform the test at all. This would give the suspect a maximum score of four points and would necessitate explanation on the part of the officer. The second stage, the "Balance and Counting" Stage, the officer is required to explain the test requirements further by instructing the suspect to stand on one leg, holding the other foot in front, while the officer demonstrates.

The suspect should be allowed to stand on either leg that they wish. The suspect is instructed to keep the foot raised about six inches off the ground. The officer demonstrates this and should advise the suspect if it isn't to the officer's satisfaction. The suspect is further instructed that while they are standing, they will count out loud for 30 seconds, and the officer will demonstrate the count as "one-one thousandth, "two-one thousandth, etc., all the way to thirty-one thousandth. The suspect is told to look down at their foot while counting and throughout the entire test, to keep their arms at the sides at all times. They are told to refrain from hopping or swaying while standing. The suspect must again acknowledge that they understand the instruction to retain validity of the test. The test is then begun.

A suspect may be scored a point for the following reasons.

1. Suspect sways while balancing. The officer is trained not to be too critical in this scoring as the suspect is a living, breathing person, and some sway will be noticed as a result of this. The swaying that can be scored is a marked sway, such as a back-and-forth motion while the suspect maintains the one-leg-stand position. Ask yourself this: is it easier to balance yourself on one foot or two?

2. The suspect uses the arms for balance in respect to having their arms six or more inches from the side of the body. Again it must be taken into account, the distance from the body that the suspect might normally start with, such as in the case of bodybuilders. If the suspect puts their foot down, regardless of how many times, they are only given one point on this scoring factor. The suspect should be allowed to continue from the point of difficulty as this test may lose sensitivity if repeated several times. The suspect has been instructed to keep watching their raised foot and to count out loud, but if they do not follow either of these instructions, they are not scored any points, as it is not a part of any scoring factor. Ask yourself this: why does a circus tightrope walker use that long pole? It is to allow herself to displace her weight over a larger area to make it easier to balance in an unnatural position If the suspect counts too slow it is imperative that the officer stop the test after thirty seconds have elapsed as this may affect the scoring and validity of the test. The officer is trained to time thirty seconds of total test time. If the suspect counts too fast the officer is instructed to slow them down.

3. The last scoring factor in this test is when a suspect hops on one foot. This is scored only if they resort to hopping on the anchor foot in order to maintain balance. It should not be scored if the suspect is having difficulty by moving the anchor foot back and forth. The officer is supposed to be able to distinguish this as part of their training and to allow the suspect this benefit.Ask yourself this: when you feel you are about to fall, do you reflexively begin to hop to keep yourself from falling?

Scoring the One Leg Stand The suspect can receive a maximum score on this test in two ways. This will happen if the suspect puts their foot down three or more times during the thirty second count, or otherwise demonstrates that they can not do the test. The officer must be able to articulate why they felt the defendant could not do this test. The degree of reliability attached to this test if it is demonstrated and scored properly is 65%. The officer is trained to use this as probable cause to arrest the suspect for DWI.

For purposes of the arrest report and courtroom testimony, the officer is trained that it is not simply enough to report the suspect's "score" on the three tests. The numeric scores are only important to the police officer in the field to determine probable cause. It is insufficient to secure a conviction, and must be accompanied by more descriptive evidence. The officer is trained that they must be able to describe how the suspect performed, and exactly what the suspect did when he or she performed the test and when these clues occurred. The manual provided to the officer has a standard note-taking guide which should be utilized to assist the officer and prove the case.