Kentucky DUI Defense Lawyer

Squealing Tires and a DUI Stop

Kentucky officers use the squealing of tires as justification for a traffic stop for violating Kentucky Revised Statute KRS 189.440.

At one time or another as drivers we have all probably caused our tires to squeal from a stopped car.  Examples of causing tires to squeal include: trying to start a vehicle from a stop on a wet inclined surface; starting the vehicle while on gravel causing the wheels to spin; causing your foot to slip (accidentally) off of the clutch while revving the engine; starting on a road marking causing the wheel to slip, etc.

Whatever the reason, Kentucky police officers may consider such squealing tires to be evident of an improper start, a violation of KRS 189.440.

KRS 189.440 states in its entirety:

No person shall start a vehicle that is stopped or parked unless and until the movement can be made with reasonable safety.

Usually KRS 189.440 has been held to be applicable to facts where a motorist drives his car from the side of the road out across the near lane and in front of an automobile proceeding in the far lane of the highway. It has also been held applicable to a vehicle backing up and for vehicles pulling into traffic (although other statutes apply).

However, this Kentucky Attorney has learned of Kentucky officers using this statute to justify reasonable suspicion to perform a traffic stop of a motorist in Kentucky.

There does not appear to be Kentucky case law which states that squealing tires is a violation of KRS 189.440. However, case law from courts in Florida and Indiana (which does not apply to Kentucky) have held that causing tries to squeal did not demonstrate a disregard for the safety of others and did not give rise to reasonable suspicion for the stop.

Post by Nicholasville Kentucky Attorney Stephen J. Isaacs, Isaacs Law Office.

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DUI Blog Article Review

I have listed a few recent articles on other DUI Attorney websites of interest to readers of this website.

New York Attorney Anthony Colleluori, also known as "That Lawyer Dude", wrote an informative article entitled "Drinking and Driving Does Not Equal Driving While Intoxicated."  He notes that in America the anti-alcohol lobby has done an excellent job of telling Americans, wrongly of course, that if you drink and drive, you're guilty of Driving While Intoxicated.  This article helps to dispel this myth.  Note, in Kentucky, Attorney Colleluori's article would not apply to drivers of commercial vehicles.

Attorney J. Matthew Guilfoil, the Managing Member of The Guilfoil Law Group, LLC, wrote an interesting article on retrograde extrapolation and the defense of rising BAC entitled "The Defense of “Rising BAC” or Rising Blood Alcohol Content in a Driver’s License Suspension Hearing in a Missouri DWI Case and “Retrograde Extrapolation”".

Another article well worth reading is by Texas DUI attorney Jamie Spencer, entitled "Is Refusing The Breath Test Consciousness Of Guilt In A DWI" (DUI).  Mr. Spencer discusses how in Texas a person arrested for suspecion of driving under the influence is asked to provide evidence against themselves AFTER arrest by blowing into an Intoxilyzer  breath test device under the theory that you they will be released if they blow under 0.08 BAC.  However, Mr. Spencer states that when folks blow “under the legal limit”, the State proceeds on the alternate theory that they had lost the normal use of their mental and/or physical faculties - despite being under the “per se” limit of .08.   Attorney Spencer goes on to ask the rhetorical questions of 1) isn’t refusing to take the Intoxilyzer actually evidence that you have not lost the normal use of your mental faculties? and, 2) if so, then why would anyone submit to an Intoxilyzer test unless they’ve literally had nothing to drink in the last twelve to twenty four hours?

Post by Lexington Kentucky DUI Attorney Stephen J. Isaacs, Isaacs Law Office.

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Inaccuracies of the Horizontal Gaze Nystagmus Test

The National Highway Traffic Safety Administration (NHTSA) studies pertaining to Horizontal Gaze Nystagmus (HGN) contain flaws suggesting they are not reliable indicators of a  level of intoxication.  NHTSA studies allege that Horizontal Nystagmus, or the horizontal jerking of the eyes, is considered to be an indicator that a person is under the influence of alcohol or drugs.

Police officers frequently give the HGN test as one test of the NHTSA three Standardized Field Sobriety Tests (SFSTs). NHSA alleges in their materials that the HGN test is 77% accurate in determining whether a person has a 0.10 BAC or more. However, experts have criticized the administration of this test by police officers who are not an ophthalmologist trained in the detection of eye movements and or eye pathologies. Furthermore, experts have opined that the HGN test when administered according to NHTSA standards will not stand up to peer review and may lead to false results.

For a test to be scientifically valid, there must be high reliability and validity both measured by a correlation coefficient ranging from 0 to 1.0 (highest end of the scale). Reliability relates to the consistency of scores based on re-testing. Validity relates to the ability of a test to predict particular benchmarks. For a test to be reliable the reliability and validity correlation coefficient must be 0.85 or higher.  According to the 1977 NHTSA study which studied the Horizontal Gaze Nystagmus test, the validity correlation coefficient for the HGN for a person with a BAC of 0.10 was 0.67, equating to an approximate 33% better prediction than chance. In 1981, the HGN was researched again in the laboratory and the error rate was found to be 32% for a person with a 0.10 BAC.  No validity correlation coefficients were mentioned in this study. Reliability correlation coefficients were given for the HGN of 0.66.  When different officers performed the test on the same subject with the same BAC, the coefficient for the HGN dropped down to 0.59. In other words, in a laboratory condition, the officers were wrong 41% of the time that a person with a  0.10 BAC experienced Horizontal Gaze Nystagmus.

NHTSA alleges that Horizontal Gaze Nystagmus (HGN), or the horizontal jerking of the eyes, is an indicator that a person is under the influence of alcohol or drugs. According to research, there are 47 types of nystagmus which can be found in individuals, including horizontal nystagmus.  There also exist numerous causes of HGN.  The court in Schultz v. State, 664 A.2d 60, 77 (Md. App. 1995) judicially recognized (identified) THIRTY EIGHT (38) medical conditions unrelated to alcohol which can cause Horizontal Nystagmus. These conditions included:

problems with the inner ear labyrinth; irrigating the ears with warm or cold water under peculiar weather conditions; influenza; streptococcus infection; vertigo; measles; syphilis; arteriosclerosis; muscular dystrophy; multiple sclerosis; Korchaff’s syndrome;  brain hemorrhage; epilepsy; hypertension; motion sickness; sunstroke; eyestrain; eye muscle fatigue; glaucoma; changes in atmospheric pressure; consumption of excessive amounts of caffeine; excessive exposure to nicotine; aspirin; circadian rhythms; acute trauma to the head; chronic trauma to the head; some prescription drugs, tranquilizers, pain medications, anti-convulsants; barbiturates; disorders of the vestibular apparatus and brain stem; cerebellum dysfunction; heredity; diet; toxins; exposure to solvents, PCBs, dry-cleaning fumes, carbon monoxide;  extreme chilling;  lesions; continuous movement of the visual field past the eyes; and antihistamine use.

Ophthalmologists (medical eye doctors) receive training in the detection of eye movements and or eye pathologies, including nystagmus and its causes, over many years of medical school and residency. Officers frequently receive less than 40 hours of training in learning how to assess if a person is under the influence, including learning how to conduct field sobriety tests. It therefore follows that even if an officer does correctly identify Horizontal Nystagmus, it is unrealistic given the numerous causes of horizontal nystagmus that a police officer can distinguish the cause of the Nystagmus.  As a result, officers can jump to the false premise that if they do identify HGN, that it must be indicative of ethanol (alcohol) intoxication.

Another problem experts have identified with the Horizontal Gaze Nystagmus (HGN ) test is both determining the presence of alcohol and the actual alcohol concentration. The HGN, as administered by the NHTSA protocol for the SFSTs has been cited as the only reliable index of blood alcohol when examined for its ability to distinguish BACs under and over .04% within the .00-.08% range. So it is a fallacy to use this test to determine whether someone may has a .08 BAC or above.  Also troubling is the fact that nystagmus can remain for some time even after all alcohol clears from a persons blood (a BAC of 0.00).

Post by Kentucky DUI Lawyer Stephen J. Isaacs, Isaacs Law Office.

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Commercial Drivers and DUI In Kentucky

Kentucky takes a hard line on drivers of commercial vehicles Driving Under the Influence (DUI) of alcohol or other controlled substances.

Essentially, Kentucky does not permit a person to drive a commercial motor vehicle within Kentucky  while having any measurable or detectable amount of alcohol or other controlled substances in his system.  Pursuant to KRS 281.210, the driver of a  commercial motor vehicle inside Kentucky  with any detectable amount of alcohol or controlled substance in his (or her) system or who refuses to
submit to the test required in KRS 281A.220 will  be placed out of service for twenty-four (24) hours.

Additionally, according to KRS 281A.190, Kentucky disqualifies drivers  from driving a commercial motor vehicle for ONE year if convicted of driving a commercial motor vehicle under the influence of alcohol OR for driving said commercial motor vehicle while their blood, breath, or urine alcohol concentration is 0.04 or more OR for leaving the scene of an accident, for using the commercial motor vehicle in the commission of a felony listed in KRS 186.560  OR for refusing to submit to testing pursuant to KRS 281A.220.   Note that the disqualification period increases from ONE year to THREE years if the person transported a hazardous material required to be placarded at the time of the violation.

Furthermore, Kentucky disqualifies for LIFE those persons convicted of two (2) or more violations of any of the afore-listed offenses arising from two (2) or more separate incidents. The disqualification for LIFE also applies to persons using a commercial motor vehicle in the commission of any felony involving the manufacture, distribution, or dispensing of a controlled substance, or possession with intent to manufacture, distribute, or dispense a controlled substance.

Pursuant to Kentucky law, a period of suspension, revocation, or disqualification imposed by Kentucky will  not be reduced. Furthermore, after conviction, Kentucky will report the suspension, revocation, or disqualification to the state issuing the commercial driver’s license.

Post by Kentucky DUI Attorney, Stephen J. Isaacs, Isaacs Law Office.

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Kentucky School Bus Runs Off Road and Turns on Side

News Update:  A Kentucky school bus ran off of the road and turned onto its side yesterday in Fleminsburg Kentucky. The driver and three students were taken to the hospital for observation.   The story did not indicate whether the students were wearing seat belts or why the bus left the road.

Read the Story.

Post by Lexington Kentucky DUI Lawyer, Stephen J. Isaacs, Isaacs Law Office.

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