Month: February 2017

You are driving, and you see the flash of police lights behind you. You pull over to the side of the road. The stop can end in three ways: with a warning, with a ticket, or with an arrest.
Often, those who are arrested after a traffic stop are done so because the officer alleges that he has probable cause to believe that they were driving under the influence (DUI/DWI). Officers initially suspect that someone is driving under the influence due to an odor of alcohol, red face, bloodshot eyes, watery eyes, an admission that the driver has been drinking, or some other indication that the driver has consumed alcohol.

The officers usually “verify” or “test” their suspicion by requesting that the driver participates in standardized field sobriety testing. Often, the results of these field sobriety tests grant the officers the necessary “probable cause” for the DUI/DWI arrest.

DUI Field Sobriety Tests

There are usually three field sobriety tests administered by the officer. The first is called the Horizontal Gaze Nystagmus (HGN) test. This test is conducted by the officer holding up a pen in front of the driver’s face and asking the driver to follow it with just his or her eyes. The HGN test examines nystagmus, which is an involuntary jerking of the eye that can be affected by the consumption of alcohol. The second test is called the walk and turn test, which requires the driver to walk heel-to-toe along a straight line for nine steps, pivot, and then walk back. The third test is called the one leg stand test, which requires the driver to stand on one leg with the other leg extended in the air for thirty seconds. Both the walk and turn and the one leg stand test examine the driver’s coordination, balance, and ability to apply multiple directions at once.

If the driver does not consent to breath or urine testing, the field sobriety tests are often the majority of the government’s evidence in a Driving Under the Influence case. But how reliable are the tests in determining whether a person is intoxicated?

Poor Performance Due To Comprehension Problems

The DUI field sobriety tests can actually be affected by many factors other than intoxication. For example, an individual can perform poorly on a field sobriety test simply because they had difficulty comprehending and immediately applying the instructions.

The officers rattle off the instructions in the beginning of the test, often speaking quickly because they are repeating the same words that they have said countless times throughout their career. The individual, who is usually hearing these instructions for the first time, is expected to listen carefully to the officer, understand a series of very specific instructions, and immediately apply multiple instructions without any opportunity to practice to make sure that they understand all of the requirements.

The individual is expected to do all of this while simultaneously undergoing the stress of being pulled over and confronted by an armed, uniformed police officer who may arrest them at any minute.

Anyone who has been in terrifying situations knows that can be difficult to think with a clear head. In a stressed state, it is easy to let your mind skip over a few words uttered by the officer or forget to apply some of the instructions while performing the test. In a field sobriety test, simply not paying attention to a few words like “walk nine steps” or “count out loud” can be the difference between passing and failing the test – even though the lapse was simply due to the stress and not due to intoxication.

This difficulty comprehending and instantaneously applying the instructions can be difficult for anyone – but can be particularly difficult if someone suffers from a learning disability. The officers, however, do not ask the individual’s level of education or if they suffer from any disabilities prior to administering the test. Therefore, a poor performance of the DUI/DWI field sobriety tests may be simply due to a difficulty comprehending the information, but will be viewed by the officers and the court as evidence of intoxication instead.

Poor Performance Due to Innate Lack of Coordination

Apart from the stress and difficulty inherent in the field sobriety tests, an individual may perform poorly on the tests simply because some people are naturally less coordinated than others. Balance and coordination are not always inherent, as those of us who are chronically clumsy can attest.

In particular, the one leg stand requires the individual to balance on one foot for thirty seconds. While this may be simple for a police officer who has to pass physical examinations, not everyone has the physical strength to accomplish this feat. As anyone who has had to hold their leg up in a Tree pose during a beginners Yoga class can understand, balancing on one leg can be extremely difficult – and not being able to do so can have absolutely nothing to do with the consumption of alcohol.

The Field Sobriety Tests Are Not Reliable

There are countless factors that can lead to a poor performance on a field sobriety test that is not indicative of consumption of alcohol or drugs. Therefore, despite its widespread use, the field sobriety tests are not reliable indicators of intoxication.

Attorney General Sally Yates was unceremoniously fired by the Trump administration after she ordered Department of Justice lawyers not to defend the executive order that banned citizens from seven Muslim-majority countries and refugees from around the world from entering the United States. Along with banning citizens from the seven countries, the executive order also specifically established preferential treatment for citizens of those affected nations who identify with the “minority religions.” The order stranded travelers around the world and incited thousands to take to the streets in protest around the country.

Why did AG Sally Yates Refuse to Defend the Order?

Attorney General Sally Yates worked in the Department of Justice for twenty-seven years for both Republican and Democratic administrations, and had a reputation of being “above politics.” She was actually asked to stay on during the transition by Trump’s administration.

Following the release of the executive order on January 27, Yates refused to defend the order because her analysis concluded that the executive order was unconstitutional:
“My responsibility is to ensure that the position of the Department of Justice is not only legally defensible but is informed by our best view of what the law is after consideration of all the facts…At the present, I am not convinced that the defense of the executive order is consistent with these responsibilities, nor am I convinced that the executive order is lawful.”
This refusal was in line with her unwavering affirmation during her Senate Confirmation hearing in 2015 when (ironically) Trump’s AG designee Jeff Sessions asked her if she would stand up to the President if she believed that his actions were unlawful.

Many agree with Yates’ legal analysis of the executive order, and legal challenges have been filed in numerous states including Virginia, New York, Massachusetts, Washington, and California.

What Does The First Amendment Protect?

The First Amendment requires that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

In the United States Supreme Court case of Lynch v. Donnelly, Justice O’Connor explained “that the government must not make a person’s religious beliefs relevant to his or her standing in the political community by conveying a message ‘that religion or a particular religious belief is favored or preferred.’” The Court stated in Larsen v. Valente that the “history and logic of the Establishment Clause [mean] that no State can ‘pass laws which aid one religion’ or that ‘prefer one religion over another.’” In sum, the First Amendment requires the government to exercise authority in a religiously neutral way.

Therefore, a key purpose of the First Amendment freedom of religion is to prevent the government from making those who are not part of a favored religion feel unwelcome. It is almost undeniable that the executive order and the rhetoric surround it has done just that.

How Does The First Amendment Protection Apply To The Executive Order?

While the ban is facially neutral in that it doesn’t mention “Muslim” or “Islam” specifically, there are a number of specific pieces of evidence that prove that the order is unconstitutional because the intent of the order was to specifically ban Muslims, in violation of the First Amendment.

First, and most obvious, the ban only targets majority-Muslim states but specifically provides for preferential treatment for those who practice “minority religions.” This was confirmed by Trump in an interview with the Christian Broadcasting Network on the day the order was issued, when he specially stated that they will be giving Christians preferential treatment under the order. This by itself is a constitutional violation, as it is firmly established that it is unconstitutional to discriminate among religious groups and assign preference to one religion over another.

Second, Rudy Giuliani actually told Fox News the day after the executive order was signed that Trump had previously told him that he wanted to implement a “Muslim ban” and requested that he find a way to “do it legally.”

Third, on the Trump campaign had issued a press release in December 2015 that stated that: “Donald Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” This rhetoric and promise of a “Muslim Ban” a year ago speaks directly to his intent in passing this order within his first week in office.

Fourth, Trump has made numerous statements regarding the need for Muslims to be required to legally register, NBC News in November 2015, specifically has commented on the problem that he sees of “Muslims coming into the country” (March 2016), and admitted that he was revamping the proposal designed to target Muslims (NBC in July 2016).

This evidence of Trump’s invidious intent supports the finding that the executive order violated the protections guaranteed by the First Amendment. He has stated numerous times on the record that he is planning to ban Muslims, and he explicitly stated that the order would be giving preference to a specific religion.

This executive order is an affront to the United States Constitution and the values for which we hold dear, and is an attack specifically on those who the United States has always protected, as inscribed on the Statute of Liberty: “your tired, your poor, your huddled masses yearning to breathe free.”

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