Here is an example of a man speaking with authority on a subject he knows nothing about.
Persons taking BT Tests do not blow to meet an officer's qualifications. They blow to meet the machine's standards for an acceptable sample for testing.
The officers tell you to blow as long as the machine beeps. The machine beeps until it has a sufficient sample for testing. If you haven't provided a sufficient sample in the time allotted, the machine stops the test and issues a notice of insufficient sample then cleans itself and asks again for a breath sample. After your second insufficient sample, the machine issues you a notice of refusal.
You are not given the choice of taking a BT Test or a blood test. You are offered a BT Test and if you refuse or fail to provide a sufficient sample you are issued a refusal. You do not then get to have a blood test. Blood tests are offered to suspects who are at the hospital and are not in position to take a BT Test. This isn't a matter of officer discretion. It is a matter of law. After the machine issued an insufficient sample notice, Dennard would not have been offered a blood test. By law he would have been issued a refusal.
Reading between the lines, Dennard effed with the machine by failing to provide a sufficient sample for testing (which Grandma Moses the COPD victim can easily do). No BAC reading was produced, either one showing him to be over or under the legal limit. Only a reading of insufficient sample would be produced. The administering officers have nothing to do with it. The machine runs the test and produces the result.
The only way a BAC reading would accompany an insufficient sample reading would be if Dennard did provide at least one sufficient sample then failed to provide another invalidating the test leading to a refusal.
When a person takes a BT test, they blow into the machine, the machine tests the sample, cleans itself then tests itself for accuracy against a calibrated sample, then cleans itself again, then the person provides a second sample for testing. If the accuracy test is off, the test is invalidated. If the two provided samples are too far off from each other, the test is invalidated.
Rappaport refers to a police report where it says a field sobriety test was administered but no results were indicated. His source says that the test was not indicative of someone under the influence. I also saw where a reporter said that "only one FST was administered".
A NHTSA "Field Sobriety Test" consists of three standardized parts. If you agree to take the test it is one test made up of three parts. The Horizontal Gaze Nystagmus test (HGN), the One-Legged Stand, and the Nine-Step Walk and Turn. If all three parts of the test are not administered there is a reason that must be documented. The most common reasons are that the subject refused, the subject was too drunk and asking him to take the tests was too dangerous, or the location was not suitable for the testing. Some officers do stray from the standard without good reason and if that happened in this case the officer would have to explain why to the jury's satisfaction at trial.
Interpreting FSTs are best left to training professionals. Random sources don't cut it. These tests are designed as divided attention tests which when properly administered detects impairment at low BAC levels of .06 to .08. You don't have to be falling down to fail these tests. A skilled tester can and will detect impairment at a much lower threshold. Almost everyone will fail the HGN when they are at a .08 to 10 BAC. There's no way to fake it. If the officer involved is not skilled and administered the test poorly that is again an issue for the jury.
http://www.nhtsa.gov/people/injury/a...appendix_a.htm
I'd like to see the report Rapp mentioned. Is it really the report? Is it a probable cause summery and not the actually involved officer's detailed narrative? Who is his source and is he an expert in the area of standardized field sobriety testing?
It's nice that Rappaport is carrying the water for Dennard here (I appreciate his efforts because I don't want to see the kid go anywhere) but the guy has no idea what he is talking about. Most street lawyers are more savvy.
It's possible the cop involved had a hard-on for Dennard and it colored his investigation and his decision making process but I'd like to see the real incident report before concluding that Dennard was railroaded.
