The Visalia Times-Delta has reported that California lawyer Michelle Winspur was arrested for appearing in court on behalf of clients under the influence of alcohol. A member of the court’s staff noticed that she was manifestly under the influence. As a result, field sobriety tests were administered and failed and then a breathalyzer was administered. The results were nearly twice the legal limit to drive, which unfortunately for Winspur, she was seen doing on her way to court. As a result she was also arrested for DUI. To make matters worse, Winspur was previously alleged to have tried a two day family court trial while intoxicated such that the Court was forced to declare a mistrial. She then allegedly appeared in Court in October and December of this year clearly under the influence. She was unable to appear for her arraignment as she had checked herself into rehab. Hopefully she will get any issues that she is suffering from under control, but her clients need not worry any more as California has placed her law license on inactive status and disciplinary proceedings that could result in disbarment are pending against her.

 In a majority of the DUI arrests in Pennsylvania, the driver is asked by an officer to perform a series of physical tests called field sobriety tests (“FSTs”). Theoretically, FSTs are supposed to be a reliable and consistent method to determine if an individual is under the influence as evidence to build probable cause to support a DUI arrest. However, in practice, FSTs are anything but reliable and consistent. Recent studies are bringing these tests, based on 1950-1960’s psychological theory, into question.

 The tests themselves can include whatever the examining police officer requests, such as reciting the alphabet, finger-to-nose test, or answering informational quizzes. However, of all the tests employed, only three FSTs have been studied and approved by the National Highway Traffic Safety Administration (“NHTSA”) as having any scientific validity in determining whether a driver is impaired: the (1) One-Leg-Stand; (2) Walk-and-Turn; and (3) Horizontal Gaze Nystagmus test (“HGN”). For a detailed account on these tests, see our informational page, “Field Sobriety Testing and Chemical Testing”.

 Even in regards to the three approved tests, reliability has been sharply debated. For example, the NHTSA cautions that in order for any of these three FSTs to have any scientific validity in identifying intoxicated drivers that they must be uniformly administered and objectively evaluated. With nearly a million law enforcement personnel across the United States, uniformly administering and objectively evaluating any subjective test is a challenge in itself.

 More importantly, NHTSA acknowledged that even when the three approved FSTs are uniformly administered and objectively evaluated there is a margin of error in falsely identifying sober drivers as impaired drivers. For example, both the One-Leg-Stand and the Walk-and-Turn tests result in a false indication of impairment under the objective scoring system approximately 35% of the time. Even the more scientifically based HGN test produces a false indication of impairment 23% of the time. Therefore, even when the officer does everything by the book, he has a greater than 3/10 chance of arresting a sober driver.

 Sobriety test skeptics like former Clemson psychology professor, Dr. Spurgeon Cole, suggest that the margin of error is even more significant. Dr. Cole, an expert in the study of measurements, has been studying FSTs since the ‘80s and has consistently argued that they are neither reliable nor valid. In fact, his research indicates that the tests only give officers a 26% better chance of detecting an actually intoxicated individual than if they randomly guessed. His rationale is based on the theory that FSTs have no norms or average score. Therefore, because we have no idea what the average person could do and nothing to compare results against, FSTs are designed to fail.

 To demonstrate his hypothesis, Dr. Cole conducted a study in which 21 sober individuals were asked to perform several FSTs and several “normal-abilities” tests that are well known to individuals (like stating one’s address or walking in a normal manner). These tests were taped and officers were asked to view the tapes, divided between FSTs and “normal abilities” and determine if these individuals were intoxicated. The result, 46% of the officers’ decisions were that an individual was intoxicated from viewing the FSTs. On the other hand, only 15% of the decisions from the “normal-abilities” tests yielded a judgment that the individual was intoxicated. Furthermore, of the 21 individuals performing the test, only three were rated as “unimpaired” by all officers on both the FSTs and “normal-abilities” test.

 This data is indicative that judgments of impairment are influenced by the type of test performed. An individual was more likely to be judged as impaired on the basis of FST performance than on performance of the “normal-abilities” tests. Even without alcohol, the number of errors made by individuals who performed the FSTs was sufficient for officers to judge that the individuals had too much to drink. Lastly, Dr. Cole argues that these findings are consistent with other studies reporting sizable percentages of individuals judged to be impaired when they were not (Burns & Moskowitz, 1977; Tharp, et al. 1981).

 While the training of officers, standardization of test instructions, administration and scoring may improve the accuracy of FSTs generally, the major obstacle appears to be the test itself. All three of the approved FSTs require unfamiliar and unpracticed motor skills that may put an individual at a disadvantage when performing them. In turn, the officers performing the subjective evaluation are very familiar with the tests and are quick to recognize signs of “impairment.”

 Studies like that of Dr. Cole certainly bring the validity of FSTs into question. Nevertheless, they are still used by law enforcement daily. If these subjective tests are in fact unreliable, why do officers administer them? To get you to incriminate yourself. If the officer decides you performed poorly, he can then ask you to take a portable breath test (PBT). If you agree and blow a BAC of .08 or more, you have provided reasonable suspicion to be taken into custody. Once arrested, you are required by law to give an official blood, breath or urine sample, under penalty of a one-year license suspension if you refuse. Therefore, what should you do if you are suspected of DUI?

 First, submission to FSTs is voluntary and not required by law. The officer may request them, but failure to perform them correctly, judged subjectively by the officer, may be used as additional evidence to build probable cause to support a DUI arrest. A police officer may interpret a refusal to perform FSTs as suspicious and therefore probative of intoxication, but a person who is intoxicated should not submit to FSTs in hopes of passing them.

 However, even if you submitted to FSTs, there are a number of ways that they can be attacked. The NHTSA outlines procedures in administering the approved FSTs. If there is a deviation from NHTSA protocol in administering or scoring the test, the validity and reliability can be attacked. The subjective nature makes interpretation of FSTs highly variable. Furthermore, there are many factors unrelated to intoxication that could negatively affect an individual’s performance. Many people are clumsy, may be very tired, or may have had a past medical condition, which would affect their ability to pass the test. People are also usually nervous when they are asked to take field sobriety tests, which can affect their performance. In addition, conditions beside the road where the test is administered can affect a person’s performance. Weather conditions, other cars driving past, poor lighting, and uneven ground can all affect performance.

 To account for these variables, officers must follow NHTSA protocol. Violations of protocol lend to an unreliable and possibly invalid FST. For example, the officer may not have explained the test properly. The officer may have chosen a poor site to have the test performed. The officer may prematurely terminate the test. The officer may have judged the test unreasonably. The officer may have made a determination that is scientifically or medically unreliable. The officer may not have accounted for individual circumstances on the part of the participant. The challenges to FSTs are widely varied.

 There are also legal ways to fight the admissibility of the HGN test. In this test, the officer will have a suspect follow a stimulus, such as a lighted pen, with his or her eyes and look for a nystagmus, or involuntary jerking, which alcohol is known to cause. The HGN is not admissible in Pennsylvania courts although police are permitted to use the test to establish probable cause to arrest.

 It is important to carefully examine FST evidence. In many—if not most—instances, police officers do not administer the test in full compliance with NHTSA guidelines. Cross-examining officers with their own training manuals frequently exposes their lack of knowledge and skill in conducting these tests. At trial, all of these factors must be fully explored so that a judge and/or jury understand the fallibility of FSTs.

 Most importantly, contact Fairlie & Lippy, P.C. if you have any questions. Remember, a consultation with our Pennsylvania DUI attorneys is always free of charge. As PA DUI lawyers, we have extensive experience in evaluating FSTs conducted in Montgomery County, Bucks County and surrounding communities.  

• Burns, M., & Moskowitz, H. (1977) Psychophysical tests for DWI arrest. Final Report, DOT-HS-802-424, NHTSA.
• Cole, S., & Nowaczyk, R. (1994) Field Sobriety Tests: Are They Designed for Failure? Perceptual and Motor Skills, Department of Psychology, Clemson University
• Rubenzer, S. (2007) The Standardized Field Sobriety Tests: A Review of Scientific and Legal Issues. American Psychology-Law Society.
• Tharp, V., Burns, M., & Moskowitz, H. (1981) Development and field test of psychophysical tests for DWI arrests. Final Report, DOT-HS-805-864, NHTSA.
• Stuster, J., & Burns, M. (1998). Validation of the Standardized Field Sobriety Test battery at BACs below .10 percent. Washington DC: U.S. Department of Transportation, National Highway Traffic Safety Administration (DOT-HS-808-839).

Accidental Shootings Can Be Prevented.

America has a long and fabled history of gun ownership.  Our Constitution protects our right to keep and bear arms for personal protection, hunting and even sport.  Whatever your opinion about the politics of gun control, one thing is certain – Pennsylvanians take full advantage of our right to own and possess firearms.  No one knows exactly how many guns are owned by private citizens in this country, but estimates put the number in excess of 200 million.  What we do know is that every year thousands of Americans are injured by gunshots.

A recent study by the Centers for Disease Control found that 31,224 people died as a result of firearm incidents in the U.S. in the year 2007 alone.  17,000 of these deaths were ruled suicide.   Hundreds of thousands of other Americans suffered non-fatal gunshot injuries, a large percentage of which were due to accidents.  Pennsylvania is no different.  Sadly, we all know stories of people who have been tragically injured or killed when a gun was accidentally fired.  Sometimes these are hunting accidents that happen even with experienced and careful hunters.  Often, however, people are injured simply because a gun gets into the hands of a person or child who lacks the sufficient training or judgment to handle a gun properly.

If you or your loved one has been injured by a gunshot, you should speak with an attorney from Fairlie & Lippy who has experience in handling gunshot cases.  You may be entitled to recover money damages from the shooter, the property owner, the gun owner, or even the store that originally sold the gun.  Some common causes of gunshot accidents include:

• Improper handling or storage of the gun
• Failing to use a gun lock or gun safe
• Failing to restrict access to a loaded gun
• Handling a gun under the influence of drugs or alcohol
• Improper training
• Firing a gun while unaware of the surrounding areas
• Improper gun maintenance
• Straw man purchases, where a person legally authorized to buy firearms does so with the intent to distribute them to persons not authorized to carry guns

Modern ammunition is designed to shoot a bullet from a firearm and penetrate the target.  If the target is a human body, the damage from the bullet can obviously be tremendous.  Gunshots can cause injuries to the tissue, muscles, nerves, bones and organs.  Gunshots are now the second leading cause of spinal cord injuries.  A gunshot can obviously cause not only a tremendous amount of physical and psychological damage, but also large economic damages.

Pennsylvania authorities should be contacted for intentional, or even reckless, acts that cause injuries.  Criminal charges will then be handled through the police and state attorneys’ offices.  However, civil damages are available even for intentional injuries.  The key consideration is, once you have a judgment against the wrongdoer, will you be able to recover any actual money.  In most cases, the only damages you can recover in a civil suit is money damages, which are always a poor substitute for your health and well-being.  Further, many people and businesses are “judgment proof,” meaning that a judgment against them may in practice be useful.  Lawyers and collection agencies specialize in judgment recovery, but this process always takes time and money, and sometimes there is simply little or no money to be had.

What if you’re injured by an accident?  Accidental shootings can sometimes be covered by insurance.  Insurance policies such as general liability or homeowners policies can apply depending upon the facts of the case.  For instance, a homeowner’s policy may provide coverage in a situation where a person got hold of a gun and accidentally fired it, injuring someone.  Other accidents involving the factors listed above can trigger insurance coverage as well.

Pennsylvania courts recently held that a gun shop can be liable for an accidental shooting involving a “straw buyer.”  The case involved two Philadelphia children who found a handgun stashed under a parked car.  One of the children, treating the gun as a toy, pointed it at his 7 year-old friend, pulled the trigger and shot the boy in the head, killing him. 

The gun was eventually traced back to a local gun store, which sold the gun to a regular customer.  The customer was what police call a straw man purchaser.  This is a person who has no criminal background or other restriction on buying guns.  However, the straw man has no intention of using the gun, but rather intends to re-sell the gun to persons who cannot legally purchase guns.  In this case, the straw man had purchased so many guns that the gun store should have been suspicious of his motives.  In fact, he testified that the store had to know that he was re-selling the guns.  Police speculate that the straw man sold the gun to a drug dealer, who stashed it under the car.   The gun store settled the case with the family of the boy for an undisclosed amount, a recognition that gun shops cannot willfully ignore the dangers that guns can present to our society if they get into the wrong hands without accepting some responsibility for the injuries they cause.

In a recent Pennsylvania Supreme Court Case, Toney v. Chester County Hospital, an evenly divided Court permitted a claim for emotional distress to remain even where the plaintiff suffered no physical impact.   The Plaintiff, Toney, underwent an ultrasound and was advised that it showed a normal baby.  To the contrary, the baby was born with severe deformities that included all four limbs terminating at the elbow or knee.   A divided Superior Court held that a claim for Negligent Infliction of Emotional Distress (NIED) could be brought under these facts.

 The ancient doctrine that required a physical impact in order for a plaintiff to recover was expanded in 1970, when the Supreme Court implemented the zone of danger theory in Niederman v. Nrodsky, providing NIED compensation to those who are in close proximity to physical danger even if they failed to show physical impact.  In Sinn v. Burd, the court once again expanded the NIED claims and added the bystander liability theory, allowing plaintiffs recovery for emotional distress if they had witnessed a serious accident to a family member from outside the “zone of danger”. 

 In her 2005 Medical Malpractice case, Plaintiff Janelle Antoinette Toney sued Chester County Hospital, the University of Pennsylvania, and Dr. Maheep Goyal, the Penn Radiologist who interpreted Toney’s ultrasound as normal. Toney alleged to have suffered after witnessing the birth of her physically deformed son without having sufficient time to prepare herself for the experience and therefore sought damages for her emotional distress. The defendants filed preliminary objections claiming the Plaintiff did not state a claim for NIED because she did not meet any of the established requirements for NIED – she did not fall under the zone of danger theory or the bystander liability theory.

 The Pennsylvania Supreme Court reversed the trial court’s decision and granted an appeal in order to decide whether a cause of action for NIED can exist where the emotional distress results from a “negligent breach of a contractual or fiduciary duty.”

 Three justices of the Pennsylvania Supreme Court agreed that the mother does have a cause of action for negligent infliction of emotional distress, while another three justices declined to support the mother’s theory of liability, thus leaving the vote split with Justice Orie Melvin declining to participate.  This plurality opinion affirmed the Superior Court’s decision to recognize the extension of NIED, concluding that it was appropriate to expand liability for the infliction of emotional distress to a “limited species of cases.” The Supreme Court reversed the trial court’s order supporting the defendants’ preliminary objections.

The three supporting Justices concluded that recovery for NIED claims should not require a physical impact; rather, judges should decide whether a sufficient duty exists on a case-by-case basis.  Justice Max Baer stated that plaintiffs cannot recover for NIED in “garden variety” breach of contract of fiduciary duty cases, emphasizing the need for the law to dispense with the century-old “physical impact” rule for NIED claims.

 While Toney v. Chester does not stand as a precedential decision, it is the most significant NIED case to reach the state high court since the adoption of the bystander liability and zone of danger  theories.

We’ve hired yet again – this time a lateral with lots of experience handling Personal Injury, including catastrophic injuries, and Civil Litigation cases for a prestigious Philadelphia-based law firm.   Christopher Bradley is a wonderful lawyer and a nice human being.  He can identify with you on a personal level and then take care of business in Court.  He will also be handling a large number of cases involving claims of defective stucco construction against builders such as The David Cutler Group d/b/a The Cutler Group, Inc., Heritage, Philomeno & Salamone, and other builders in Montgomery County, Bucks County, Chester County and Delaware County.  You can read more about Chris’ background at http://fairlielaw.net/attorney-profiles/christopher/