Kentucky DUI Defense Lawyer

What should you do when you've been stopped by the police for suspicion of driving under the influence

In Kentucky, Police stop vehicles for many reasons, not just for suspicion of DUI. But if you had been drinking or under the influence of a drug, then you need to do several things to increase your chance of being found innocent.

First, call a criminal defense attorney if possible. Some officers will cooperate with you and allow you to speak with an attorney if you inform the officer that you need to understand your rights.

Listen to the instructions from the officer and do not be rowdy, disruptive, aggressive or physical towards the officer. Do not give the officer grounds to arrest you because of your behavior. Be polite and respectful (they will appreciate the respect and may return the favor).

Do as little as possible and do not volunteer information. You will have to provide your name and present your drivers license, registration and proof of insurance. But you can stop there. Note that anything you say before the officer places you in custody can and probably will be used against you. According to the court in Miranda v Arizona, you have the right to ask for an attorney and remain silent when in police custody. Miranda applies ONLY if the officer asks you questions when in police custody. Note that not all traffic stops rise to the level of being in police custody: in these cases, the police may ask you questions without having to invoke your Miranda rights and then can use your statements as evidence against you. If the officer follows procedure, they will probably write down everything you say for the prosecutor to use. Therefore, be safe and invoke your right to remain silent: you do not have to answer questions such as how much you had to drink or if you had been smoking marijuana. You do not need to confess to the officer that you believe you are intoxicated or impaired.

Furthermore, the officer may demand that you take several “field sobriety” tests if the officer suspects you of driving under the influence. The officer intends to collect evidence against you using the field sobriety tests. The field sobriety tests commonly administered in Kentucky include the walk and turn test, the one leg stand, the horizontal gauze Nystagmus test, and a portable breath test. However, in Kentucky, these tests are voluntary: you can refuse to take these tests. A word of caution: be polite and respectful to the officer should you decide to refuse these tests.

In Kentucky an officer can arrest you based solely on his opinion as to whether you drove the vehicle under the influence. Should the officer decide to arrest you, they will transport you to a detention facility. There exists a good chance that the officer will record your voice during transit. Be aware of this fact and do not answer any questions in the police cruiser. You need to remain calm and quiet even if you believe the officer wrongly arrested you.

Once at the detention facility, the officer will again request that you submit to a test of your blood, breath or urine. All drivers operating a vehicle in Kentucky impliedly consent to submit to these tests. The officer should thereafter read you an implied consent form, which essentially states that that you have 20 minutes or less to contact an attorney for legal advice and that he will permit you to obtain an independent blood test (at your expense) if and only if you cooperate and submit to the requested blood, breath or urine tests. Should you decide to refuse to take the test, Kentucky law will presume guilt and increase the penalties levied against you should you later decide to plead guilty or if a jury finds you guilty. Remember, do not volunteer any information to anybody except for your attorney. Some Kentucky jailers record all conversations inside the detention centers and on the telephone. Any statements you make against your interest may be used against you at a trial of the matter.

Post by Lexington Criminal Defense Attorney Stephen J. Isaacs, Isaacs Law Office.

The United States Court in Miranda v. Arizona, 384 U.S. 436 (1966) held that statements made by a defendant during interrogation and while in police custody are admissible at trial only if the police had previously informed the defendant of his right to counsel with an attorney before and during questioning and of the right against self-incrimination before questioning by the police. The prosecutor could thereafter use at trial any voluntary statements made by the defendant. The Miranda court based its decision on the Fifth Amendment right to counsel and the right to remain silent.

University of Kentucky Former Coach Billy C. Gillispie Charged With DUI

On August 27, 2009 at 2:24 a.m., Lawrenceburg Kentucky police stopped a vehicle driven by the former University of Kentucky basketball coach Billy C. Gillispie and charged him with DUI, first offense.

According to police records, the Lawrencebug Police Department (LPD) received a report of a possible intoxicated driver driving a white four door car with Texas plates heading northbound on U.S. 127 near the bypass near the Bluegrass parkway. The LPD dispatcher sent officers to intercept the vehicle.

Upon observing a white Mercedes vehicle on the opposite side of the highway meeting the subject vehicle description, Officer Corley reported that he clocked the vehicle on radar at 63 mph in a 45 mph speed zone. Officer Corley turned around to pursue the vehicle and reported that he observed the white 2009 Mercedes C300 with Texas plates swerving across the fog and center lines, and alternating speed between 50 to 55 mph. After conducting a traffic stop, Officer Corley reported that the driver, Billy C. Gillispie, had a strong fruity smell coming from his person, had red glassy eyes, and slow slurred speech. Officer Corley reported that Mr. Billy C. Gillispie declined to take the field sobriety tests and portable breath test. Mr. Gillispie was thereafter arrested for DUI and transported to the Lawrenceburg Kentucky detention center. The records also indicate that Mr. Gillispie also refused tests of his breath and blood at the detention center.

Gillispie was arraigned later the same day. He entered a not guilty plea and was released on personal recognizance.

Billy C. Gillispie is known as the former coach of the University of Kentucky basketball team for the prior two basketball seasons. He is reportedly in town for negotiations to settle a lawsuit he brought against the University of Kentucky for breach of contract due to his dismissal by the University of Kentucky after two years into a seven year contract. The University of Kentucky alleges that no formal contract existed.

Post by Fayette County Kentucky Attorney Stephen J. Isaacs, Isaacs Law Office.

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Diabetic Victims of DUI Arrests

As a Kentucky DUI attorney, I have observed diabetics arrested and victimized by the zealous efforts by poorly trained law enforcement officers seeking to obtain a DUI convictions. The truth is that some diabetic individuals arrested for DUI are innocent of the DUI charges and need medical attention.

For example, in one case reviewed for this article, the subject arrested by police for DUI suffered from diabetic symptoms, and the officer did nothing to help the detainee. In that case, the officer stated on the police report that the subject had the odor of alcohol, that they failed all of the standard field sobriety tests (SFSTs), and that the Portable Breath Test (PBT) device measured alcohol on the subjects breath. Yet the subject's blood test for alcohol registered ZERO. In that case the prosecutor refused to drop the charges, further victimizing the detainee.

In reality, this author has the opinion that many Kentucky police officers are not given enough training to determine if a person should be arrested for DUI or if they are in need of medical attention. I wrote about the problem of poor officer training in my post Standard Field Sobriety Tests Do Not Accurately Measure Driver Impairment.  In that post, I presented a research study on the inaccuracy of the Standard Field Sobriety Tests conducted in 1991 at Clemson University which showed that SFST's yield false results.  In that study, 21 sober individuals with a blood alcohol content of zero (0.00) were videotaped performing six common Standard Field Sobriety Tests. The videotapes were then shown to 14 officers who were asked to determine if each of the individuals had too much to drink and drive. The officers were not informed that the individuals on the videotapes were sober.  The officers found that 46 percent of the time the individuals were too intoxicated to drive.  Since this study did not occur in Kentucky, it therefore can be argued that this may not be limited to Kentucky police officers.

This author therefore recommends that Kentucky police officers who can be expected to arrest individuals for DUI be given additional training to aid in the detection of persons suffering from medical conditions, including diabetes.

Post by Lexington Kentucky 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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Officer's Subjective Opinion Can Support Kentucky DUI Conviction

Even with the suppression of Standard Field Sobriety Test (SFST) evidence in a DUI case, a person can still be found guilty of DUI in Kentucky based on an officer’s subjective opinion that a person was driving under the influence (DUI).

Frequently an officer will testify that the motorist arrested for DUI was, in his opinion, operating the vehicle under the influence because of they observed the motorist with slurred speech, red  bloodshot eyes, and having an odor of alcohol.  In today’s world, this describes many sober but overworked people, including people with diabetes, colds, flu, dentures, and more.  So the ultimate issue at trial in Kentucky could ultimately center on an officer’s subjective opinion, whether right or wrong (For example, how would an officer know whether the person he just met and arrested for suspicion of  DUI normally had red bloodshot eyes and slurred speech. ).

In a recent unpublished opinion, the Kentucky appellate court upheld a DUI conviction on similar facts.  The opinion did not list all of the facts in this case. The officer performed a valid traffic stop on a vehicle having headlights illuminated but not the taillights. The officer testified that the driver exhibited slurred speech, had red bloodshot eyes, and admitted to consuming two beers. The court apparently allowed testimony that a portable breath test (PBT) administered at the scene revealed the presence of alcohol (Note that PBT evidence is normally not admissible in Kentucky courts per statute, but the opinion was silent on the issue of admissibility.)  There was no testimony that the officer complied with national standards in administering the standard field sobriety tests (SFSTs).   The opinion indicated that the officer administered two of the three standard field sobriety tests: the opinion was silent on the third required field sobriety test.  The tests were not suppressed by the trial court.   The defendant appealed his conviction arguing that the appellate court should overturn his conviction because the officer conducted the One Leg Stand (OLS) test on uneven pavement which also contained loose gravel, which tends to invalidate this test according to National Highway Safety Traffic Administration (NHTSA) standards.

The Appellate court refused to overturn the conviction. The court considered the evidence provided and decided that even if the field sobriety tests (SFSTs) were so flawed as to require their exclusion, a jury would not have reached a different result. The court held that the evidence was enough to support a DUI conviction in this case. In short, the court upheld the DUI conviction based on an officer’s subjective opinion that a driver exhibited slurred speech, had red bloodshot eyes, had the odor of alcohol, that the PBT revealed the presence of breath alcohol, and that the driver admitted to having two beers.

Of significance, the opinion was silent regarding any scientific objective evidence contradicting the officer’s opinion at trial. Scientific studies have been performed indicating the high error rate of officers assessing a person’s sobriety. This has been the primary basis for NHTSA developing Field Sobriety Tests to be administered in a standardized manner to eliminate “false positives.” For example, in a 1994 study using 21 sober (non-drinking) subjects using trained police officers to evaluate SFST’s using videotapes of the individuals performing SFST’s, forty-six (46) percent of the officer’s decisions were that the individuals had “too much to drink.” (Cole S, Nowaczyk, RH, Filed sobriety tests: Are they designed for failure? Perception and Motor Skills 1994; 79:99-104.)  In other words, nearly half of the officers stated that 21 non-drinking sober individuals had failed the SFSTs and were intoxicated!

So, was the jury and the Appellate Court right in this case?  You be the judge.  Use the comments section to express your opinion.

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

Standard Field Sobriety Tests Do Not Accurately Measure Driver Impairment.

Standard Field Sobriety Tests (SFSTs) do not accurately determine impairment for probable cause to support an arrest for Driving Under the Influence (DUI).

The SFSTs originally researched by the National Highway Traffic Safety Administration (NHTSA) fail to provide a standardized means of objectivity and unscientifically assessing impairment. The SFSTs were originally developed to assist the officer screen a driver for probable cause to arrest the indivudual for drunk driving. Yet frequently the officer gives the SFSTs after deciding that the driver is guilty of DUI.

The effectiveness of the SFSTs has been called into question since they were developed by NHTSA and are therefore "self-serving". In a 1977 study, researchers learned that 47 percent of the subjects that would have been arrested based upon test performance actually had blood-alcohol concentrations less than the legal limit of 0.10 (the legal limit was reduced to 0.08 in 2000). In 1981, the same researchers conducted further "standardized" testing and learned that the the false results dropped to 32 percent: in other words, in this test nearly one out of every three individuals who failed the test were not legally intoxicated. 

Subsequent independent scientific researchers have found these Standard Field Sobriety Tests  flawed.  Many of these same researchers in 1987 observed that the SFSTs determined balance, steadiness, and reaction time but  concluded that a connection between these factors and driving ability was not apparent because neither a steady stance nor simple movement time is essential to the safe operation of a motor vehicle. The researchers did concede that the Standard Field Sobriety Tests may show the presence of alcohol, but that they did not necessarily measure driving ability.

Research on the validity and accuracy of the Standard Field Sobriety Tests conducted in 1991 at Clemston University further showed the SFST's yield false results.  In this study, 21 sober individuals with a blood alcohol content of .00 were videotaped performing six common Field Sobriety Tests. The videotapes were then shown to 14 officers who were asked to determine if the individuals had too much to drink and drive. The officers were not informed that the individuals on the videotapes were sober.  The officers found that 46 percent of the time the individuals were too intoxicated to drive.

Generally officers do not give the Standard Field Sobriety Tests uniformly, and as noted, there is no scientific basis for assuming they are valid. Many officers either administer the wrong tests or improperly instruct the suspect driver on how to perform the tests. A DUI defense attorney can obtain a pretrial suppression ruling to exclude the SFSTs and their alleged indication of impairment due to lack of scientific foundation and improper instructions.

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

Common Mistakes Police Officers Make In DUI Arrests

Police Officers frequently make mistakes when they investigate and arrest a driver for driving under the influence in Kentucky. Many of these mistakes include, but are not limited to the following:

1. Assuming that "witnessed" driving behavior (i.e.: weaving, cell phone use, distraction) is related to alcohol consumption.
2. Observing driver behavior from a distance and attributing the behavior to the driver and not to the road conditions (i.e.: swerving to avoid potholes or animals in the roadway)
3. Assuming that the odor of alcohol means a person consumed alcohol and is intoxicated, when in fact the odor may be due to other causes (i.e.: mouthwash, denture solutions, alcoholic drink which was spilled on the driver's clothes, etc.)   
4. Failing to investigate a driver’s potential medical problems which could imitate intoxication (such as diabetes, knee / ankle / leg / foot problems, inner ear disturbance, etc.).   
5. Requesting all people submit to Standard Field Sobriety Tests (SFST), regardless of whether the person is physically unable to pass the exercises even while totally sober.   
6. Failing to eliminate distractions and obstacles during the SFST which invalidate the test (i.e.:   loose gravel, unlevel surfaces, wind blowing, darkness, strobe lights, moving traffic, etc.)   
7. Failing to properly instruct the driver during the instructional phase of the SFST's.
8. Failing to properly instruct the driver during the administration of the SFST's.   
9. Failing to properly follow the sequence of the SFST as described in the National Highway Traffic Safety Administration (NHTSA) Manual or the Kentucky Department of Justice Center for Training (KDOJCT) Manual.
10. Administering invalid field sobriety “tests” which are not supported by research studies.
11. Failing to properly administer the Portable Breath Test (PBT), causing a false positive result (i.e.: not following the law and waiting 20 minutes before administering the test) to support a probable cause for arrest. (Note: PBT results are not admissible in Kentucky courts.)
12. Not having the Intoxilizer 5000EN breath test within 2 hours of cessation of the vehicle operation.

The above list of police officer mistakes is only a partial list of mistakes made by officers. It applies to Kentucky DUI / DWI arrests. If any of the above mistakes exist in a Driving Under the Influence matter, then a good defense may exist to the DUI / DWI charges.

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

Police Major Arrested on DUI Charge

Kentucky State Police arrested Henderson, Kentucky, police major Corey Tapp on January 10, 2007 on charges of driving under the influence and  going 24 miles over the speed limit (79 in a 55 mph zone).At the time of her arrest, Officer Tapp was on suspension for another disciplinary matter.

According to the Kentucky State Police citation, Tapp was observed speeding on U.S. 60 in the Spottsville area shortly after midnight. The arrest citation indicated that Tapp smelled of the odor of alcohol, passed one of the field sobriety tests, and failed three other field sobriety tests, including a portable breath test. Tapp's bac as measured on the Intoxilyzer 5000 located at the Henderson Kentucky Detention Center was 0.78. The legal limit in Kentucky is 0.80.

Of note, portable breath tests (PBT) are not admissible in Kentucky Courts.

Read the story.

Post by Kentucky Criminal Defense Lawyer, Stephen J. Isaacs, Isaacs Law Office.

High Heel Defense in DUI Case

Wearing High Heals during a Standard Field Sobriety Test (SFST) can provide a defense to a DUI case. According to the National Highway Traffic Safety Administration (NHTSA) SFST Student Manual and the Kentucky Department of Criminal Justice Training DUI / Standard Field Sobriety Basic Training Manual, "Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes." 

The defense works. In a North Carolina case, a woman wearing 3 1/2 inch stiletto heels failed the walk and turn and one-legged stand field sobriety tests. The attorney argued successfully that it was
“fundamentally unfair” to think that the woman could pass the tests.

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

DUI Blog Review - 2006 - Week 52

The Austin DWI Lawyer featured an article by Attorney Jamie Spenser entitled Watch The Witness, which described how officers use cheat sheets to answer defense lawyer's testimony in the courtroom.

The Underdog Blog featured an article by Attorney Jon Katz discussed the many reasons unrelated to alcohol which can affect a suspect's performance on field sobriety tests.  He discusses the junk science used to support the Field Sobriety Tests (FST's) and the fact that the tests only show the presence of alcohol in one's body and not the level of alcohol present. He further discusses that too many judges rely on the FST's to find probable cause to arrest a suspect, request a breath or blood alcohol test, and to enter a guilty verdict for driving while impaired or driving under the influence of alcohol.

Washington State DUI Blog posted an article about how police in Washington conduct the Finger to Nose field sobriety test. The post notes that most sober individuals cannot perform this test, so it is not a valid indicator of sobriety.  Note, in Kentucky, Field sobriety tests are voluntary.  They are primarily used to gather evidence of impairment.

Guy Sharpe reported on the Georgia DUI Blog a Canadian study which suggests that birth control pills produce an enzyme that most Breathalyzer test machines will interpret as blood alcohol content, leading to the overestimation of true breath alcohol and erroneous test results.

Post by Nicholasville Kentucky, Personal Injury, Criminal Defense, and DUI Attorney, Stephen J. Isaacs.