On May 8, 2015, the West Virginia State Police conducted an OVI checkpoint on Rt 88, just outside of Bethlehem, WV. I first drove through the checkpoint to get a feel for the temperament of the troopers. When I was stopped, I was asked for my drivers license and then my registration. I asked the trooper if this was an OVI Checkpoint or a driver’s license check point and he stated that it was an OVI checkpoint. I told him that he was supposed to be looking for OVIs then. He noticed the U.S. Paratrooper plate on my car and asked where I was Airborne. I told him that I don’t answer questions. He handed my documents back and told me to have a safe evening.
I drove down the road a ways and set up with my camera and sign to warn drivers of the checkpoint and to turn. Most blew by me and ignored the sign. I got a couple thumbs up from some of the drivers. I did this for about half an hour, before packing up and heading back to the checkpoint to get footage of all of the cars they were stopping. I parked the vehicle up the hill from the checkpoint and walked up and began filming.
It didn’t take long for the troopers to realize that they were on camera. I got a lot of stares, but I was left alone by them. A half hour after I began filming, they pulled a red Jeep Cherokee into secondary. As this was going on, a trooper by the name of James Stout approached me. He told me he wasn’t going to hassle me and that he just wanted to see if I had any questions about the checkpoint. I asked him if they had their paperwork in order and he told me the process they had to follow and replied that they had the paperwork. Trooper Stout told me that he likes to be as transparent as possible during these checkpoints and told me that I was free to move around and video as I please. The whole time we talked, I kept my camera trained on the driver being given a field sobriety test. We exchanged names and he was on his way.
The driver was first given the Horizontal Gaze Nystagmus. The next test he was given was the walk and turn. He completed the nine steps and then turned around and did the nine steps back to the start. From where I was standing, I couldn’t get a good read on whether he passed or not. At 7:10 in the video, you can see them giving instructions for the final test, which is the OLS or One Legged Stand. This test was administered on a hill, facing downhill. According to the National Highway Traffic Safety Administration Manual for Standardized Field Sobriety Test:
c. Test conditions for the One-Legged Stand Test
According to the 2000 NHTSA Manual, the surface must be level, dry, and a non-slippery surface. Persons 65 years of age, 50 pounds or more overweight, and those with leg, back and middle ear problems will have difficulty performing the test.
However, earlier editions of the standardized field sobriety testing student manuals from NHTSA contain much stronger language, such as the following:
“Certain individuals are likely to have trouble with this test even when sober. People over 60 often have very poor balance. (Since very few elderly people are stopped at roadside, specific guidelines have not been established for them on this test.)….In administering the test, make sure the suspects eyes are open and there is adequate lighting for him to have some frame of reference… In total darkness, the One-Leg Stand is difficult even for sober people.” NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS.,Improved Sobriety Testing, DOT-HS-806-512, p. 7 (1984).
As the driver was not on a level surface, the test conditions for the OLS were not met. In the video, you can clearly see the driver having an issue with balance right from the start of the test. You can use the vehicle behind him to gauge the incline on which he was being tested. He makes 2 attempts and can not complete the test. He is then taken to the mobile testing unit for Blood, Breath, or Urine testing.
I did not say anything at the time as I was alone and did not want to run the risk of an obstruction charge. Sometimes, you have to pick your battles and that night I was not willing to take on a group of State Troopers on my own. My next step is to go to the WV State Police in Moundsville and get the identity of the person taking the test in the video and see if he in fact did get arrested for DUI. If he did, I will then file a FOIA for the WV OVI Checklist that is filled out by the arresting officer as well as any supporting documents from the arrest. My hope is to contact that driver and make him aware of the test being flawed due to not meeting the required conditions when administered.
Keep in mind that you have the right to refuse to take any field sobriety test. Under “Implied Consent”, you are only required to submit to testing of Blood, Breath, or Urine after they have established probable cause for testing.