Law Office of Mark Stevens
5 Manor Parkway
Salem, NH 03079
Telephone: (603) 893-0074
Fax: (603) 893-5022
info@attorneymarkstevens.com 		Admitted in all state and federal courts in New Hampshire and Massachusetts. Representing clients in criminal defense matters, including narcotics charges, drunk driving charges, Driving While Intoxicated (DWI), Operating Under the Influence (OUI), and Driving Under the Influence (DUI). Representation of clients at Department of Motor Vehicles (NH) and Registry of Motor Vehicles (MA) hearings and appeals.

CASE EXAMPLE-MARCH 24, 2008

BOATING WHILE INTOXICATED (“BWI”) VICTORY

DRIVER STOPPED FOR A STERN LIGHT OUT ON HIS BOAT: ENDS UP CHARGED WITH “BWI”-BOATING WHILE INTOXICATED

Sponsored by ByeByeDWI.com

Please note-this is an example of the disposition of a recent New Hampshire Boating While Intoxicated (BWI) case. It is by no means a guarantee of any particular result in any other case. This case highlights the perils of performing “marine field sobriety tests”

Before you read the facts and results here, though, consider the following:

Imagine going to your local registry of motor vehicles and applying for a license to drive.  Imagine paying your fee, passing your eye examination, proving your identity, getting your photo taken, then waiting in line.  When you get to the front of the line, the employee tells you:

          “OK,I need to do one more thing to see if you are OK to drive. Now, hold your hands out.  When I say go, touch the tip of your thumb to the tip of your index finger and say “one”, then quickly touch the tip of your thumb to the tip of your middle finger and say “two”, then quickly touch the tip of your thumb to the tip of your ring finger and say “three”, then quickly touch the tip of your pinkie and say “four”, then quickly touch the tip of your pinkie again and say “one”, then quickly touch the tip of your ring finger again and say “two”, then quickly touch the tip of your middle finger again and say “three”, then touch the tip of your thumb to the tip of your index finger again and say “four”. 

Imagine the registry employee then tells you, “Now you just keep doing what I just explained again and again until I tell you to stop, keep going faster and faster and faster until you make a mistake.”

 

 

First of all, you might well ask, “What does this have to do with how well I can drive?”.  The answer the employee gives you is, “well this is a divided attention test, much like when you are driving”.  Would you buy that? Of course not, because it makes no logical sense.

Secondly, you might want to know how and whether you pass or fail.  Imagine the registry employee tell you, “Oh, well there really is no scoring system.  It’s entirely up to my own subjective opinion whether I give you a license after I watch you do all this stuff. “

Would you say, “Hey sure, that sounds ok to me, more than fair and completely relevant.  I’ll leave it entirely up to your subjective opinion whether I get my license, or keep it or lose it, based on how you think I do with that finger counting exercise you just described!”

Of course you wouldn’t.  But that is one of the things you’ll be asked to do if you elect to run the gauntlet of “marine field sobriety tests” if the officer smells alcohol.  CHOOSE WHETHER TO DO THESE CARFEULLY.

Now on to the facts of this case….

BASIC FACTS: The driver of a boat in this case was stopped for having his “stern light out”.  An officer activated the blue light on his patrol boat and stopped the driver.  Once stopped, the patrolman marched the driver through a gauntlet of “safety inspection” questions and exercises, demanding to see lifejackets, flotation devices, and even asking the driver to honk the horn of the boat.  Even though the boat operator performed these tasks flawlessly,  the patrolman interrogated him about drinking.  The driver chose to answer the questions about drinking and eventually said that he had had two drinks.  The officer reported that the driver’s speech was “slurred” and that his eyes were “bloodshot and glassy”, stock observations that appear in nearly every DWI or BWI report.

            The officer then invited the driver to board the patrol boat for some “marine field sobriety testing”.  (NOTE FOR THE UNWARY: THIS IS THE POINT AT WHICH THE ARREST DECISION HAS PROBABLY ALREADY BEEN MADE.  CHOOSE WHETHER TO PERFORM THESE “TESTS” CAREFULLY.  THERE IS NO SCORING SYSTEM FOR THESE EXERCISES, AND THE DECISION TO ARREST IS ENTIRELY BASED UPON THE OFFICER’S WHIM).  Marine field sobriety tests are an unusual battery of seated dexterity exercises designed to trick the driver.  These are the seafaring version of the sidewalk acrobatics known as “standardized field sobriety testing” done during DWI cases at the roadside.  The most basic difference is that there is NO OBJECTIVE SCORING CRITERIA FOR MARINE FIELD SOBRIETY TESTING. 

In this case the driver supposedly failed the “pen test”, also known as the “Horizontal Gaze Nystagmus” test, which is when the officer waives his pen in front of the driver’s face and decides the driver is impaired by alcohol. While he allegedly “failed” the sideways pen test, he “passed” the pen test that the officer did by waiving the pen up and down.    

The driver went on to fail the “finger count test”  The “finger count test” is like a parlor trick in which the driver has to touch the tips of his fingers while counting out loud, faster and faster until he makes a few mistakes, at which point the officer moves along to the next “test”.  After the finger counting was a “palm pat test”, another weird exercise in which the driver flips his palm over and back while counting rapidly until he makes a mistake and “fails” that too.  The driver also performed a “finger to nose test”, an old law enforcement favorite.  He was asked to “say the alphabet without singing it”.  The driver said the entire alphabet, without missing any letters or mixing any letters up, but he “sang” some of the letters and “slurred L,M,N,O,P”.  The officer also directed the driver to “count backwards” from 25 to 1.  The driver did that test perfectly, even to the officer’s satisfaction.  Despite counting backwards perfectly, the officer arrested the driver anyway. 

(NOTE-THIS IS A GREAT EXAMPLE OF WHY COOPERATION OFTEN DOES NOT BENEFIT YOU; YOU SHOULD CHOOSE WHETHER TO DO FIELD SOBRIETY TESTS CAREFULLY.  THE FACT THAT YOU DO THEM AND PASS THEM DOES NOT MEAN THAT YOU WILL NOT BE ARRESTED)

Back at the station the defendant chose not to blow into the breath testing hose when asked to do so by the officer.  The boat operator hired Attorney Stevens to fight the Boating While Intoxicated (“BWI”) charge.

DEFENSE:          Actual innocence; the fact that the state could not prove impairment beyond a reasonable doubt based on the observations stated above.  After trial, the boat operator was found:  NOT GUILTY!!! 

RESULT:  NOT GUILTY!!!

Attorney Stevens thanks God for this successful defense!!!

TODAY’S SCRIPTURE:

“Because if you acknowledge and confess with your lips that Jesus is Lord and in your heart believe that God raised Him from the dead, you will be saved.”

Romans 10:9.

 

 

 





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