Gun Show Loophole?

I do not intend for this piece to be a pathway into a debate on gun control or any of the applicable laws pertaining firearms sales. I am simply attempting to clarify the actual legal framework involved in a firearms sale. This piece is in response to a political commercial currently running on several of the cable news channels.

The commercial shows snippets of a terrorist asserting that people can simply walk into a gun show and buy fully automatic weapons without any sort of background check. The commercial is sponsored by a group of mayors, and it urges people to contact their congressmen concerning closing the so called gun show loophole.

The simple truth is that those claims are absolutely and totally false. Licensed firearms dealers must follow the exact same rules for selling a firearm at a gun show as they must follow when selling a firearm from their place of business. This is required by federal law, and such sales are regulated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives more commonly known as the ATF. Additionally, state laws regulating the sale of firearms must be followed at a gun show just as they are at a retail firearms shop.

Furthermore, fully automatic and select-fire firearms are Class III items, and as such, they are even more stringently regulated by the federal government and other applicable state laws. In order to purchase a Class III item, a person must be approved by the ATF prior to buying the item, and each item purchased requires specific approval. Part of that approval process includes either the signature of the chief law enforcement officer of the locality where the purchaser resides or the establishment of a legal trust. The process is very time consuming, and each item also incurs an additional $200.00 federal tax. The purchase process of a Class III item is measured in months and not minutes.  Private parties may not sell Class III items directly to another party. The transaction must go through a dealer approved by the federal government to handle Class III items.

The notion that someone can walk into a gun show and simply buy a fully automatic weapon is ludicrous to the point that the person espousing such is either ignorant on the law and is merely parroting remarks made by others, or the person is knowingly and intentionally perpetuating a lie.

Sales between private parties at gun shows are governed by the same state laws and applicable federal laws that apply to a private party transaction elsewhere in the respective state.

The gun show loophole does not exist.

Again, this piece was not intended as a pathway to a debate on gun control. Its intent is to provide accurate information.  This piece is not an argument in favor of or against control measures.

A Weekend of Wheelguns

I attended the academy starting in January of 1999, and at that time only two agencies in our region were sending cadets to the academy with revolvers. As of now, I do not know of any agencies outside of some correctional institutions that still issue revolvers as primary duty weapons. Outside of small, pocket sized revolvers, it isn’t common to run across a citizen choosing a revolver as their personal carry firearm either, and I must confess that I am firmly in the Glock camp as my choice for duty and personal carry; however, when I wear my class A uniform, I have taken to carrying a revolver because they are simply put: classy. It is just hard to argue against or not appreciate the elegance of a vintage Smith & Wesson revolver.

I feel that I must make the point that the revolver is still a viable personal carry or home defense weapon; however, the firearms industry has so strongly shifted towards polymer frames that revolvers and even metal frames pistols to a certain degree have decreased in market presence while increasing in price thus pushing them further out of the current mainstream, the venerable 1911 excepted of course. Furthermore, Smith & Wesson’s caving to the lawyers and the California legislature by manufacturing new revolvers with built-in key locks has led to the drying up of the once plentiful trade-in supply of affordable revolvers.

Take heart wheelgun aficionados, the revolver has not completely faded from the shooting world as evidenced by this past weekend’s Wheelgun Championship in Gainesville, GA, at the Cherokee Gun Club. As I mentioned in a previous piece, late last year I began shooting competitively on a regular basis, and I could not pass up the chance to shoot major match geared towards the venerable revolver, especially with it being in such close proximity.

The Wheelgun Championship is a sanctioned match of the International Defensive Pistol Association (IDPA). IDPA matches are broken down into five divisions based upon the type of pistol the shooter is using, two of which are revolver divisions, and the divisions are further broken down into classifications based upon the shooter’s skill set as determined by performance on a standard classifier course of fire and performance at sanctioned matches. Shooters compete against shooters within their own division and class. Shooters may earn a classification “bump” through various performance formulas. This was the first sanctioned match in which I have competed.

Although I have an affinity for wheelguns, I have very little true experience in actually shooting them, much less in a competitive environment or under stress. In fact, my classification going into this match was two levels below the level at which I compete with my Glock. For this match, I used traditional basket weave leather duty gear rather than the more customary kydex rigs seen at such events. After all, if you are going old school, you need to fully commit. I also shot a stock Smith & Wesson 586 revolver. Some of the shooters had more invested in the gunsmithing on their revolvers than I have invested in my entire setup.

At this point, I need to give a plug to Tom McElwayne of the Shooter’s Den in Watkinsville for putting together the ammunition that I used in the match. Tom being the perfectionist that he is went to great lengths to make sure I had quality ammo to use in the match.

As for the match itself, it was a long, long match consisting of 18 stages and over 175 rounds fired. The various stages contained shots at short, intermediate, and longer distance, and it had some stages that required multiple reloads. It was a good test of a shooter’s overall skill with a revolver.

I am happy to report that I won my classification in the Stock Service Revolver division. I also beat half of the field in the next higher classification and earned a match performance “bump”. I was the third most accurate shooter among the revolver shooters as well, which is what lead to the win as my times were on par with the other shooters. More importantly, I had a great time and met a lot of good people.

My Response to Competitive Shooters

Late in 2010, I began began to shoot competitively on a regular basis. I am typically shooting two matches per month and sometimes three. A frequent theme that I hear professed or see posted online by competitive shooters is snide references to their perceived lack of accuracy on the part of peace officers when involved in deadly force situations. These statements both amuse and miff me at the same time. This piece is my response to those who have such a mindset as I would like to put some perspective into play.

Truth be told, the percentage of peace officers that are “gun people” is rather low. By “gun people”, I mean those people who actively participate in voluntary training and become true students of the art of shooting. Unfortunately, on a profession-wide basis, the standards for qualification are too low, and too many peace officers are satisfied with turning in a passing score on the range only to not come back to the range until the next mandatory qualification day. Simply put, too many peace officers view qualifying and training (note I make a distinction as they aren’t the same thing) as a necessary evil. Where the competitive shooters make a mistake of logic is that they tend to look at peace officers as a single entity while discounting that the percentage of competitive shooters compared to the proverbial average gun owner is actually quite low as well.

The typical pistol match involves either a set course of fire that is known to the shooters, or the shooters are briefed and get a walkthrough of the stages prior to their run. Competitors know when they go to a match that they will be involved in a shooting activity. Competitors get to pick their firearm and ammunition and all of their equipment within the rules of their respective sport, and said ammunition usually consists of low recoiling loads, and the firearms are often modified. Shooting “non-threat” targets results in a time or points penalty, and the targets don’t shoot back. Contrast all of that with the fact that peace officers are usually get a standard issue firearm with modifications prohibited by the ever present liability fears. The ammunition issued to the peace officer is defense loads designed to stop threats and not simply punch holes in paper, and while we all accept the fact that any call may be the call that erupts into a gunfight, I have yet to read an after action report from a shooting in which a range officer asked the peace officer if they understood the course of fire, if they were ready, and then activated a buzzer to signal that the shooting could commence. Oh yeah, the bad guys do shoot back, and shooting those innocent bystanders and hostages brings a whole host of consequences.

I propose the following: I’ll post a sign up sheet for all of my competitive shooting friends, and sometime between now and in the next 20 years I’ll set up a surprise scenario and spring it on you with no advanced notice or walkthrough. We’ll figure up your score and establish a true baseline for comparing the combat accuracy of peace officers and competitive shooters. It’s only fair, right?

Notes on Speed Detection

Governor Lester Maddox was a professed segregationist who sold his Pickrick Cafeteria rather than serve black customers, but even he drew the line at speed traps. The town of Ludowici, Georgia, had become so notorious for operating a speed trap that Governor Maddox had billboards erected to the north and south of the town warning passing motorists to be wary of speed traps and clip joints, and he assigned state troopers to guard the signs. This was even covered by Time magazine.

You would think that speed enforcement would be an easy feat to accomplish. It seems pretty simple to assign a peace officer to go sit along a stretch of roadway with a speed detection device with that officer stopping and citing motorist that come along in excess of the speed limit. Well, as with most things government related, common sense and actual reality rarely meet, and this is no exception. There is one law that deals with the actual offense of speeding (40-6-181 O.C.G.A.). However, there are 17 separate state laws that deal with the operation of speed detection devices. If you are a student of history, you know that Lester Maddox was Governor of Georgia from 1967 through 1971. Most of these 17 code sections date back to 1968.

Among some of the requirements in the aforementioned state laws are the requirement for warning signs, visibility of the officer’s vehicle to approaching motorist, rules about where such devices may be used, testing devices for accuracy, etc, but perhaps the one that astounds the general public the most is a requirement that a county, city, or college/university agency have a permit from the state to operate speed detection devices. This permit does not give blanket authority to conduct speed detection throughout the agency’s jurisdiction. Specific streets must be listed on the permit along with their approved speed limit. If the speed limit is changed on a road, the permit for that stretch of road is rendered null and void until the process to have it changed on the speed permit is completed or the speed limit is put back to the limit listed on the permit. The speed permit comes up for renewal every three years, and making changes or additions to it is a very, very tedious process. Operating a speed detection device without the appropriate permit is a misdemeanor offense. The permit requirement does not apply to the Georgia State Patrol.

The requirements for operating speed detection equipment are found in 40-14-1 through 40-14-17 O.C.G.A. You can find the code sections online by clicking here.

I took a class a few years ago taught by a retired precinct commander from the Phoenix (AZ) Police Department. He told a story about taking over a precinct that had experienced numerous murders in the months preceding his getting the assignment. Keep in mind that Phoenix is broken up into eight precincts; so, this was multiple murders in just one precinct of the city in a short amount of time. The Commander told us that he met with community organizations upon taking over the precinct. The number one concern expressed to him was not the high murder rate. Each and every one of the community organizations wanted to know what he was going to do about speeding in their neighborhood.

The point of that story was to point out that speeding is a universal concern. We get more complaints about speeding than anything else, and I expect that a poll of agencies across the country would report likewise. The problem is, provided we have jumped all of the state’s hurdles to get a permit and your neighborhood is on the permit, that we really only have one tool to deal with speeders, and that is to write citations. If we come to an area to enforce the speed limits, we are going to catch people speeding, and this includes your spouse, your children, your neighbors, and maybe even you.

We would rather that people voluntary comply with the speed limits because when all you have is a hammer, everything starts to look like a nail. On the weekend of the first UGA game this year, three of our deputies set up a big, flashing sign warning that speed limits were being strictly enforced. Those three deputies then wrote 80 citations in six and a half hours with none of the citations being for less than 15 miles per hour over the limit including one written for 99 miles per hour in a 55 mile per hour zone.

The 2-3-4 Rule

Below is the 2-3-4 rule. The “2” is for the two types of legal authority possessed by a peace officer. In order to detain a citizen either of the authorities must be in play. The “3” is for the three tiers of police-citizen encounters as outlined by the courts, and the “4” list the four ways in which a peace officer may legally enter a dwelling.

Two Types of Legal Authority (LA)

  • Reasonable Articulable Suspicion (RAS):  A set of facts and circumstances that would lead a reasonable and prudent peace officer based on his or her knowledge, training, and experience to believe that criminal activity is afoot.  Case Reference: Ornelas v. US, 517 US 691, 95-5259 (1996)
  • Probable Cause (PC):  A set of facts and circumstances that would lead a reasonable and prudent person when using all of their senses to believe that a crime has been or is about to be committed by the suspected person.  IMPORTANT NOTE per Wagner v. State, 206 Ga.App. 180, 424 S.E.2d 861 (1992): The mere fact that someone calls the police does not constitute probable cause.

Three Types of Police-Citizen Encounters

  • Verbal/Consensual Encounter (Tier 1):  No legal authority is needed to approach a citizen.  The encounter must be voluntary on the part of the citizen, and the officer must display no show of authority other than to identify him or herself as a peace officer.  An officer may ask for consent to search during a verbal encounter.  Case References: Florida v. Bostic, 501 US 429; US v. Baker, 01-16585 (2002)
  • Investigatory Detention/Brief Stop (Tier 2):  An officer must have RAS to make an investigative stop.  The suspect can only be held for a reasonable amount of time.  Barring any other RAS or PC developed during the stop, the officer must release the suspect once the officer’s initial suspicion has been satisfied and all identification checks have been made.  NOTE:  An officer may handcuff a suspect during a brief stop only when necessary for the officer’s, the public’s, or the suspect’s safety.  The suspect must be advised that they are not under arrest.  An officer may frisk for weapons if the officer has RAS that the suspect is armed and presents a threat.  Case References: Terry v Ohio, 392 US 1 (1968); United Sates v. Arvizu, 534 U.S. 266 (2002)
  • Arrest (Tier 3): An officer must have PC to make an arrest.  The officer should conduct a search incident to arrest.  The officer must take the suspect before a judge and must read the suspect his/her Miranda warning if the suspect is questioned after being taken into custody.

Four Legal Ways to Enter a Dwelling

  • Consent:  Consent can only be obtained from the owner of the property to be searched, someone with valid authority of the property, or someone with valid control over the property (in that order).  Consent can be given verbally or written.  The burden of proving consent is on the peace officer, and consent can be withdrawn at any time (must maintain contact) or may be qualified consent.
  • Warrant/Court Order: An officer can enter a suspect’s home to arrest the suspect if the officer has a warrant for the arrest of the suspect and the officer reasonably believes the suspect to be in the dwelling.  Case Reference: Payton v. New York, 445 U.S. 573 (1980)
  • Exigent Circumstances: An officer may enter a dwelling without a warrant when exigent circumstances exist.  Examples include situations where an officer has to enter in order to prevent death or injury to those inside of the dwelling, to prevent the destruction of evidence, or to prevent the immediate escape of a suspect.
  • Hot Pursuit: The officer must be pursuing the suspect for an arrestable offense.  The suspect must know that he or she is being pursued, and the suspect must be in actual flight.

 

Note:  I first saw this original framework in materials from my agency’s FTO program.  Wally Marchant, then an instructor at the Georgia Public Safety Training Center, is the likely originator of the “2-3-4 Rule”.  I took the original framework and added in the case references and notes to create this format.

Miranda: A Real Fiction

Alphabetically-ordered seating in school generally meant that I had a seat in the back of the room, but that left me free to do as I pleased for the most part; however, the elevated platform used by Mrs. Carol Thomas negated that advantage, and I actually paid attention in her seventh grade civics class. Among the many of her lessons that I remember was the lesson on the Bill of Rights: the first ten amendments to the Constitution enumerating such things as the right to counsel, the right not to be a witness against oneself, the right to due process, and the freedom from unreasonable searches and seizures as well as cruel and unusual punishment. The Bill of Rights was ratified in 1791. They aren’t exactly a secret.

In 1966 the nine wise souls of the Supreme Court of the United States (SCOTUS) voted in a 5-4 decision in the case of Miranda v. Arizona, 384 U.S. 436 (1966), to require peace officers to read what is now commonly known as the Miranda warning to suspects in custody prior to questioning. However, as Messrs Harlan and White pointed out in their dissenting opinions there is no requirement in the text of the Constitution that requires such a warning. The requirement to do so is purely a creation of the court. I repeat, there is nothing in the Constitution that places any requirement whatsoever on the government or its agents to formally advise people of all said rights. The Constitution itself does that, and it did so 175 years prior to the Court’s creation of a real fiction.

Please note that I am by no means arguing against these rights as such a presumption would be false. I’m just pointing out that all the Court did in Miranda was create a procedural step that has spawned four decades worth of court cases. Earlier this year, SCOTUS handed down its decision in Berghuis v. Thompkins (docket 08-1470). In this decision, the Court held that individuals must explicitly invoke their right to silence. Headlines and talking heads have proclaimed this decision as “turning back the clock” on legal protections and as “trimming Miranda rights”. Well, this is just a nit that I have to pick. Miranda didn’t and doesn’t grant or guarantee rights. It’s the United States Constitution that enumerates our rights. Again, the Court with Miranda created nothing but a procedural hoop through which to jump. Even without said warning, the rights are still there and can still be invoked by the individual. If the SCOTUS wiped out Miranda completely, those rights would still exist.

Notes:

-Noted civil rights attorney Thurgood Marshall argued the case on behalf of the government, thus he argued against the Miranda procedure. Marhsall, who later become a SCOTUS Justice, was the lawyer who successfully argued in Brown v. Board of Education, 347 U.S. 483 (1954), against the “separate but equal” policy that allowed racial segregation in schools.

-The defendant in this case, Ernesto Miranda, was convicted of burglary while in high school. He served time on numerous offenses and was later dishonorably discharged from the Army after repeated AWOL and peeping tom offenses for which he also served time in a military stockade. In the case in question, he was arrested, confessed to, was positively identified by the victim, and was later convicted of the rape and robbery of an 18 year old girl (he couldn’t be positively linked to other victims abducted and raped from the same area). A warning very similar to the wording created by Miranda was printed on each page on which he wrote his confession. After SCOTUS overturned his conviction, he was re-tried without his confession being entered into evidence. He was convicted and sentenced to over 20 years in prison but was paroled a few short years later after which he made money by selling autographed Miranda cards. He was killed in a bar fight in 1976.

–Miranda is often misunderstood. A suspect must be both in custody and being asked investigatory questions before it is required. Other than that, a peace officer may ask any question they so choose to anyone not in custody. Also, a peace officer with probable cause may make an arrest and never ask any questions of the suspect thus never crossing the threshold of Miranda being applicable.

On Trainers and Training

While some denotations of the term make it technically correct, I don’t like using the term “civilian” to differentiate between peace officers and citizens; however, for the purposes of this writing it will simplify things; so, I’ll operate in typical government fashion and give myself an exception to my own rules. By civilian training, I mean firearms training for those people that are not actively serving in the military or acting as sworn peace officers, basically the proverbial average citizen. Recently, I had a discussion with a “civilian” firearms instructor whose opinion I highly value. That discussion prompted me to formally address the topic off our conversation with this article, which will focus on the credibility of instructors and the validity of certain training approaches.

I am certified by the Georgia Peace Officer Standards and Training Council (POST) as both a general and firearms instructor thus allowing to me train Georgia’s peace officers in the use of firearms and other general topics to include the use of force, and at the time I write this, I am certified by the National Rifle Association (NRA) to conduct their Basic Pistol, a pure safety and target shooting course, and Personal Protection In The Home (PPITH) courses, both of which are “civilian” firearms classes. The PPITH course does involve some defensive shooting techniques, but it approaches the subject matter from the perspective of a person defending themselves from a home intruder. I offer this information simply to illustrate that I am engaged in firearms training for both peace officers and civilians.

I strongly encourage those seeking firearms training to verify their prospective instructors’ qualifications and claims, especially when it comes to awards and certifications. For instance, there is one instructor in Georgia that claims numerous awards and has them listed on his web page. The fact is that those awards he is claiming simply do not exist; at least they do not exist in the manner in which he is portraying them. It’s also common for instructors to point to the fact that they are competitive shooters. Well, are they winning, and what is the nature and competitiveness of their contest? I shoot competitively, but somehow I don’t think my having won a Diet Coke as a trophy in the Monday night league at the Firing Lane puts me in the same class as Jerry Miculek or Rob Leatham.

There is no accrediting body for firearms instructor certifications, and there isn’t a legal requirement that a person or company offering firearms training actually be certified to do so unless such a requirement is specified as part of a license or permitting process. It is up to the individual seeking instruction to ascertain whether the prospective instructor has the legitimate credentials to be teaching the course(s) in question.

As for instructor certifications, just what do they mean? As for the NRA certifications, they simply mean that the holder is deemed qualified by the NRA to teach NRA developed and backed courses. They do not mean that the NRA deems the holder qualified to teach any other courses. With this is mind, consider a person that is certified as an NRA Basic Pistol instructor and that comes from a background in bullseye style target shooting with no substantial training in defensive shooting disciplines or tactics. Is this person really qualified to teach courses in combat shooting? Compare that to a person whose only formal instructor certification is NRA Basic Pistol but spent years in a SWAT unit or in a combat arms unit of the military. Their teaching a combat shooting course holds a lot more credibility, does it not?

Another issue to consider is the entity issuing the instructor credential. What is its credibility? Was the certification issued by a reputable organization, or did a person hoping to make a few bucks form a company and certify them self or employees as instructors? While this may be legitimate provided the instructors have other experience and credentials to stand on, but is it legitimate to simply issue a piece of paper to a person stating that they are certified to teach a “tactical” course? I should add that a company credentialing its own instructors in and of itself isn’t an indicator of chicanery. It could be a matter of insurance requirements or copyrighting. I am simply urging the potential student to verify the actual credentials and experience of the instructor.

Validity of training is another important piece of the puzzle. By validity, I mean more than the simple notion of whether or not the techniques being taught are fundamentally sound. Validity also entails the question of whether or not the techniques being taught are applicable to the world of the average citizen that chooses to carry a firearm. I recently saw a clip from a civilian training class in which students were formed into two and three man fire teams and were moving across the range as if they were clearing a street in Falujah. How is that a realistic scenario for a civilian: three shooting buddies shopping at the Gap forming a fire team and moving down the mall’s promenade to take on an active shooter or armed robbery in progress maybe? I typically refer to such classes as Advanced Tactical Weekend Ninja training. Another instructor group has clip of a student conducting a mock traffic stop. My first problem with this is when is the average civilian going to be legally conducting routine traffic stops much less a high risk felony style stop? The student was completely out of his element and had no fundamental foundation upon which to draw. He lost complete control of the “stop”, yet, the instructors told him how wonderful a job he did with the scenario.

I’m not arguing in the least that civilians shouldn’t be getting top quality and tactically sound training. What I am arguing is that the scenarios should encompass incidents that are likely to be faced by a civilian that also take into account the differing responsibilities and priorities of the civilian and the peace officer. For instance, in an active shooter situation I would expect a peace officer to actively engage the threat. For a civilian, a defensive mindset to include escaping the situation is perfectly acceptable. Taking three civilian students and teaching them a three-man stack and then sending them storming into a building towards the sound of the gunfire has a certain “cool factor” to it, but would I really be doing the students a service by focusing on such tactics when we could be spending time and ammunition on shooting while moving, shooting from cover, and target identification drills?

This piece was aimed at students and instructors alike. I hope that it encourages students to closely scrutinize prospective instructors and the classes they offer prior to putting out money to take such courses. I also hope that it encourages instructors to examine their course content with the validity question in mind. Perhaps it will cause a few of them to also examine their claims as well.

A Word on Judge Jones

Judge Steve C. Jones, a Superior Court judge in Clarke and Oconee Counties, has been nominated for a position on the United States District Court for the Northern District of Georgia. This news is both outstanding and disappointing at the same time. Judge Jones will be a wonderful addition to the federal courts, but sadly, it means that we will lose him locally.

I would like to pass along some information about Judge Jones. A few months ago, he presided over an aggravated stalking case in which the defendant chose to represent himself (he had a legal advisor on hand). Due to the defendant’s lack of familiarity with court room procedure, what normally would have been a two or three day trial turned into a five day trial with three of those days the trial lasting past 8:00PM. Obviously, this was a very taxing experience for the jury.

I have always respected Judge Jones, but in the minutes after the trial concluded my respect for him reached a new level. He printed out a copy of the Sixth Amendment to the United States Constitution and passed it out to the jurors. For those of you that do not remember from your middle school civics class, the Sixth Amendment guarantees the right of a defendant to a trial by an impartial jury.

After giving each juror a chance to read it, he then talked of the other rights guaranteed in the Bill of Rights and said that if the right to a trial by jury can be sacrificed then all of the other rights can be sacrificed as well. It showed that he is a man that respects the Constitution as a guiding principle and not an anachronism. It shows that he believes in the rights of the individual and not simply the textual context of law.

This is the type of judge that I want to see on the federal bench ruling on Constitutional issues and applying the Constitution to the cases brought before him. May his confirmation be quick, and may his tenure on the federal bench be long!

Yielding to Emergency Vehicles

The tragic death of a not quite two-year-old child on the Georgia 10 Loop has spurred a considerable amount of discussion locally concerning what a driver should do when approached by an emergency vehicle operating in emergency mode.

Georgia law addresses this issue in 40-6-74 O.C.G.A. stating:

“(a) Upon the immediate approach of an authorized emergency vehicle or a vehicle belonging to a federal, state, or local law enforcement agency making use of an audible signal and visual signals meeting the requirements of Code Section 40-6-6, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle or law enforcement vehicle has passed, except when otherwise directed by a police officer.

(b) This Code section shall not operate to relieve the driver of any authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.”

At the time that I write this, the wreck is still under review; so, I will not get into specifics of the investigation, and I do not intend this piece to be a criticism of any of the parties involved. I am simply attempting to address the issue in hopes that it will prevent similar occurrences. The general facts of the case are that an ambulance was en route to a call and was traveling on the Georgia 10 Loop, a four-lane divided highway that forms a perimeter route around Athens and passes through Clarke and Oconee Counties. Upon seeing the ambulance, a driver stopped in the roadway and was struck from behind by a pickup truck. A third vehicle was also struck during the collision. The above facts are sufficient for the purposes of this discussion, and I will not delve into the other issues arising from this tragedy at this time.

Pulling to the right and stopping sounds simple, and under ideal conditions it would be easy to achieve; however, ideal conditions would preclude the need for emergency response in the first place. Traffic congestion may not allow for a driver to move immediately to the right and stop. Other mitigating but certainly not alleviating factors are that vehicle manufacturers are producing vehicles that virtually shut out road noise, and the market is burgeoning with communication and media devices that often get used within vehicles creating more distractions. It is not uncommon at highway speeds for the sound of the siren and the emergency vehicle to “arrive” at virtually the same time thus not allowing for much reaction time on the part of drivers. This is why it is important for the drivers of emergency vehicles to not look upon the lights and sirens as creating a magic bubble that will give them instant right of way and a clear path to their call.

Pulling to the right as soon as practicable and stopping until the emergency vehicle passes is the preferred and expected response. Simply pulling to the right and continuing may prevent the emergency vehicle operator from being able to make a right hand turn. If you stop and allow it pass prior to continuing, it should allow enough time and space for the emergency vehicle to make any necessary maneuvers.

 

 

DUI Info: Part II

In this post, I tried to provide a basic understanding of a DUI incident.  In Part II, I will focus specifically on the voluntary field sobriety evaluations.

Please note that I referred to them as both as voluntary and as evaluations.  By voluntary I mean just that.  A driver has no obligation to perform the evaluations.  Failure to do so is not an indicator of intoxication.  In fact, some people will not be able to do them due to medical screening issues built into the evaluations.  As for the term evaluations, they are commonly termed as “tests”, but this is not accurate as “tests” indicates that they are on a pass/fail basis, which is not correct.  They are an evaluation tool that allows the peace officer to make a determination based on the totality of the circumstances.

The actual correct term for the evaluations is Standardized Field Sobriety Evaluations (SFSE) with emphasis on the “standardized”. The evaluations, at least the standardized version of them, are scientifically proven and accepted. They should be completed in the prescribed order. There are only three SFSEs. They are the Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand. Any evaluation used other than those three are non-standard. A peace officer must successfully complete a training course to be certified to conduct the standardized evaluations.

Nystagmus is an involuntary jittery or twitching eye movement. While some nystagmus may be natural, it is readily induced by alcoholic beverages and some drugs. As it is not a voluntary movement, it is not able to be controlled by the individual; so, it is a very telling evaluation. It does require several medical screenings for the evaluation to be valid. For instance, a person who does not have equal pupil size or their eyes do not track equally is medically screened out from participating in this evaluation. Nystagmus is checked for by passing a stimulus back and forth at a distance of 12 to 18 inches from the eyes. The first several passes are to conduct the medical screenings. The rest are to check for smooth pursuit, nystagmus at maximum deviation, and the onset of nystagmus at prior to a 45 degree angle of the eyes. As for smooth pursuit, the eyes should smoothly follow the stimulus as it moves back and forth and not exhibit jerking movements, which are an indicator of intoxication. As for maximum deviation, an intoxicated person is likely to show sustained and distinct nystagmus as the stimulus is held at the furthest point of the back and forth passing of the stimulus. Finally, the onset of nystagmus prior to the eyes reaching a 45 degree angle when following the stimulus. Vertical nystagmus is also checked, but vertical nystagmus is not an indicator of drugs as is commonly believed. It is an indicator of a high intoxicant level for the particular person.  Training for what to look for in the eyes is conducted through the use of videos of the eyes of people at various intoxication levels.  The use of live drinkers is now discouraged for this training.

The Walk and Turn evaluation is an evaluation of both a person’s ability to follow directions as well as their ability to walk in a straight line and maintain their balance. Obviously, there are medical conditions that could prevent a person from being able to complete this evaluation; so, it is important for the officer to ask good screening questions. The exercise should be demonstrated by the officer prior to the driver participating. Of note here, I have bad ankles due to a chronic medical condition as well as an injured knee. Prior to demonstrating this evaluation, I always informed/inform the driver of this so that they had a better perspective of the evaluation and the physical ability needed to do complete it. This evaluation involves the participant beginning from a prescribed position, taking nine steps touching heel to toe with each step, turning in a prescribed and demonstrated manner, and then taking nine heel to toe steps back to the starting point. The line walked should be straight with the participant’s arms by their side and with their eyes watching their feet as they walk. The officer is looking to see if the driver steps off line, fails to touch heel to toe with each step, and whether or not the driver raises their arms from their side to maintain their balance.

The One Leg Stand evaluation involves the driver raising one foot approximately six inches off of the ground and with the toe pointed. Their arms should be at their side, their support leg should be locked at the knee, and their eyes should be focused on the toe of their extended foot. Like the Walk and Turn, there are medical/physical conditions that could legitimately prevent a person from being able to participate in the evaluation. In this evaluation, the officer watches to see if the driver is able to maintain their balance without hopping or swaying and without touching their foot back to the ground.

The above are the standardized evaluations and they should be completed in the order as described. There is no pass/fail point at which a person is declared intoxicated to the point of being DUI or not. The officer makes a determination based upon everything observed during the contact to include slurred speech, the odor of an alcoholic beverage on the driver’s breath, and their coherence, appearance and demeanor. Again, they are completely voluntary. If a driver chooses not to participate, the peace officer must make a determination at that point whether or not to proceed with an arrest. I do not have statistics to reflect any specific percentage as to how many times I made an arrest after conducting the exercises versus letting a person go. The latter category would be the higher percentage.

There are many non-standard evaluations that can also be used. There is a myth that just will not be put to rest when it comes to one of these. Whether or not a person can say the alphabet backwards is not an indicator of intoxication. I do not know how many times when asking a person if they would participate in voluntary SFSEs tell me that they would do so but they wanted to let me know up front that they could not say the alphabet backwards. I usually try to keep a straight face and say something along the lines of, “Okay, we’ll skip that one then.” I did/do commonly ask people to say (not sing) the alphabet. I never had a person mess up the alphabet that did not provide a considerably high blood alcohol content sample. Of course, in order for this evaluation to have any merit, it must be established that the person in question knows the alphabet. I did have one occasion when a Columbian national stated that he did not know the alphabet in English. I hope that Mrs. Bailey would be proud to know that many years after high school Spanish class that I still remembered the Spanish alphabet and was able to complete the evaluation.

Click here to see a form that we use when conducting SFSEs to help ensure that the evaluations are done correctly.  It accompanies a DUI arrest report.

I hope that the above helped provide you with a clearer picture of field sobriety evaluations.  It is a difficult topic to tackle without getting into the minutia of the details, and some aspects of the topic just do not easily translate into text.