foreign [Music] welcome to audit the audit where we sort out the who and what and the right and wrong of police interactions this episode covers preliminary alcohol screening field sobriety tests and driving while intoxicated and is brought To Us by the city of Newton be sure to check out the description below and give them the credit that they deserve shortly after midnight on August 28 2022 officer Nathan Winters and Lieutenant Christopher wing of the Newton Police Department pulled over 19 year old college football player Taven galanakis in Newton Iowa for driving with his high beam headlights on the interaction that followed was captured on officer Winter's body camera sir good her race came up brights on okay well that's not legal oh is it no yeah I took one car when Carson's body turn them off but like when you didn't with me you were like yeah you're a while back it has to be within 500 feet oh my bad I'm sorry and you're not supposed to have your brights on in the city limits you got your license registration Insurance yeah I got you is this your car yeah okay where are you headed back home hold on one second where are you coming from ourselves okay anything to drink over there need one of these right here yeah I mean that's a good start that's the registration okay I'll take this first one here all right you got your insurance yeah yeah I got you would be that white card uh it could be that's one that expired in 21. I got the email version all right that'll work I'm gonna have you hop out with me okay cool we're gonna go back here okay cool you don't have anything on you no bombs guns drugs no bombs or no drugs okay let's go back here I'm gonna have you have a seat in my passenger seat okay awesome where are you coming from back by uh his name is crayon it's Frank's house okay what are you doing at Creighton's house we're just hanging out just get back to college okay get a William Penn okay you play football up there yes sir how much have you had to drink tonight none I had nothing to drink okay why would you uh why would your eyes be watery and bloodshot do you want to blow me real quick no I don't want to blow you pause I got contacts I've had nothing to drink okay so your movements in the car with you fumbling over the registration kind of say otherwise and so does the odor of alcohol coming from your person great let's let's do a testing we'll get to the test I can't wait can I record it so officer Winters think I'm drinking tonight we're about to do a test and he's gonna find out I had nothing to drink he's gonna look stupid all right so let's go up on the sidewalk here and I'll talk with you up there okay cool Mr galanakis asks to take a breathalyzer test but officer Winters asks him to step outside the vehicle to complete field sobriety testing first in general there are two types of breathalyzers that police officers use to test potentially intoxicated drivers these include roadside preliminary breath tests or pbts using preliminary alcohol screening or past devices and the chemical breath tests administered using larger and more accurate breathalyzer machines at police stations often after a DUI arrest is made according to section 321j.5 of the Iowa Code when a peace officer has reasonable grounds to believe that a motor vehicle operator has operated a motor vehicle while intoxicated the officer May request that the operator provide a sample of the operator's breath for a preliminary screening test however under Iowa law drivers are not required to submit to pbts and an individual May refuse to blow even if the officer has reasonable grounds to believe that they are driving under the influence in contrast section 321j.6 of the Iowa Code which is known as the state's implied consent law states that a person who operates a motor vehicle under circumstances which give reasonable grounds to believe that the person has been operating a motor vehicle while intoxicated quote is deemed to have given consent to the withdrawal of specimens of the person's blood breath or urine and to a chemical test or tests of the specimens for the purpose of determining the alcohol concentration or presence of a controlled substance or other drugs in certain situations and under section 321j.9 of the Iowa Code drivers who refuse Chemical Testing when the implied consent statute applies can have their driver's licenses revoked for a year or more an individual is considered to have consented to Chemical Testing for the purposes of this statute if they have been lawfully arrested for DUI refused to take a PBT failed a PBT or if quote the preliminary breath screening test was administered and it indicated an alcohol concentration less than the level prohibited and the peace officer has reasonable grounds to believe that the person was under the influence of a controlled substance a drug other than alcohol or a combination of alcohol and another drug we will discuss whether officer Winters had reasonable grounds to believe that Mr gallanakis was driving Under the Influence later in this episode but for now it should be noted that although it may seem like officer Winter's unnecessarily delayed the traffic stop by refusing to administer a breathalyzer when Mr gallanakis requested one it is likely that he did so in order to ensure that the testing produced accurate results while police station breathalyzers typically have safeguards to prevent false positives interference from residual mouth Alcohol and Other breath contaminants can artificially inflate a roadside PBT reading resulting in a test result that is higher than the driver's actual blood alcohol concentration for this reason office officers are trained to observe drivers for 15 to 20 minutes before using a past device to confirm that they do not consume any alcohol or other products that contain alcohol such as cough syrup mouthwash or breath spray and ensure that the PBT results are not contaminated this 15-minute rule is likely the reason that officer Winters did not immediately give Mr gallanakis a PBT when he asked to take one and instead requested that he performed field sobriety tests if you have contacts in you said not right now you take them out yes yeah I'm loaded to dogs might as get dried up in watery so I took him out are you supposed to have them in when you drive no okay I'm gonna have you stand with your heels and Toes together with your arms down your side I'm going to check your eyes cool okay what I want you to do is follow my finger with your eyes and your eyes only and do not move your head okay can you see my finger clearly yes sir I mean what we got I know this test is about two minutes long are you comfortable in Walking in the shoes you got on yeah okay all right so I want you to put your left foot on the line take your right foot put it in front of your left foot with the heel your right foot touching the toe your left foot just like this okay so from this position you're going to take nine Heel To Toe steps turn and take nine heal the toe steps around two three just like I did count your steps out loud and once you've started walking do not stop until you've completed the test okay you may begin let's do the breath now two for two well sir I don't believe you are two for two how many steps did I say to take eight or nine I said nine why'd you take 14 and then fifteen I thought you're gonna tell me where to turn I said to count your steps out loud um so the next test when I say begin I want to see how many false accusations you got zero it's about to be your first what I want you to do when I say begin is raise either your left or your right foot whichever one you want and raise it approximately six inches off the ground and keep it parallel to the ground okay why are you shaking so much it's freezing man look at you you got all these clothes on him I got it shorts on this ring and you false accusing me so of course I'm gonna be a little nervous I wear short ones 30 below congratulations if you don't have any questions you may begin it's ridiculous okay you can relax I got one more test for you give me a little blow I will no zero I will here in a minute a couple more tests here let's blow real quick stop doing all these damn tests let's blow let's get to business has it been 15 minutes yeah I used to love noon cups I used to love them never give me no problems until now my beams were on because I have a tail light out not my tail light one of the bulbs up front yeah that's why I pulled them up okay I didn't know it was illegal let's go to the front of the car here officer Winters leads Mr gallanakis through a series of field sobriety tests some of which have been validated by the national highway traffic safety administration or nhtsa and some which have not as the court of appeals of Iowa explained in the 2002 case of State versus Marx quote when an officer has reasonable cause to believe a driver is operating while intoxicated a suspect may be briefly detained asked to perform field sobriety tests and comply with other investigatory requests without violating the suspect's Fourth Amendment rights however it is important to note that as with preliminary breath tests Iowa drivers are not required to submit to field sobriety testing and an individual May refuse to participate when administering the tests on Mr galanakis Officer winners began by performing the so-called horizontal gaze nystagmus or HD en test which is one of the three standardized field sobriety tests developed by the nhtsa during an hgn test the officer requests the subject to follow the motion of a small stimulus such as the tip of a pen or pen light using only their eyes and observe their eyes for signs of an involuntary jerking known as nystagmus which becomes more prominent as an individual's BAC increases after the hgn test officer winners had Mr gallanakis performed the two other standardized field sobriety tests the walk and turn test and the one leg stand test these two tests are known as divided attention tests because they require the subject to concentrate on mental tasks and physical tasks at the same time the walk and turn test requires the subject to walk Heel To Toe for nine steps turn around and take nine Heel To Toe steps back to their starting location while counting their steps out loud and looking at their feet according to the nhtsa officers should look for eight Clues when conducting this assessment and note if the subject cannot keep balance while listening to the instructions starts too soon stops while walking does not touch Heel To Toe steps off the line uses arms to balance makes an improper turn or takes an incorrect number of steps on the other hand the one leg stand test requires the subject to stand on one leg for 30 seconds while counting out loud the nhtsa instructs officers to look for four Clues during this test swaying while balancing using arms to balance hopping and putting the foot down after completing the standardized field sobriety tests officer winners had Mr gallanakis perform two additional field sobriety tests before completing his assessment now though Mr galanakis took too many steps during the walk and turn test and failed to count his steps out loud nhtsa guidelines state that an individual should be classified as over the legal limit if they fail two or more clues for this test and failing to count out loud is not an identified clue likewise while he did not count out loud during the one like stand test failure to count out loud is not a clue for that assessment either all right what I want you to do is make a Tight Seal around this and blow outwards like you're blowing up a balloon okay cool all right you ready yep okay you can relax um so I'm going to read to Miranda okay when's it right now you have the right to remain silent anything you say Canon will be used against you in a court of law you have the right to an attorney if you cannot affordable one we'll be appointed you before any question okay is there when's the last time you smoke weed I do not remember that tonight oh okay well I would I think it's tonight a blue zeros so now you're trying to think I smoked weed is he allowed to do that drugs man speak them on drugs that's ridiculous I'm being honest you throw some weed at your friend's house no if you hit a pin nope why does your field sobriety so far why are you so lethargic and slow moving and speaking with a slurred speech and your eyes are water and your eyes are bloodshot no other watery practice we're in rain right now I play college football I told you that we get tested every Friday I think you're under the info you think I'm impaired yes well I'm not do you want to do a drug recognition evaluation or a drug influence evaluation that's it uh there's an officer who checks your blood pressure does a whole bunch of tests yeah let's do it okay here's my situation I stopped this guy for having his gripes on he fumbles around with his registration three four five times he bombs sobriety I asked him I said I ready Miranda PBT triple zeros I said when's the last time you smoked weed and he hesitated for a long period of time and said I honestly can't remember he says he'll do an evaluation but he's kind of a smart all right that's what we'll do then okay but I obviously have enough for to charge him with the sobriety so um I spoke with the drug recognition expert and he said that he's willing to do an uh drug influence evaluation on you we would have to go up to the PD right now yep I don't want to do that right now you don't want to do it right now why not because you had me on this damn rain we would go to the PD where it's well I'm gonna do that I don't want to do that now I want to go home okay you wasting my time right now you're being placed under arrest or operating while I'm talking okay yeah blue zero you can be on under the influence of a narcotic nothing else on here man I see the drugs okay let's go back here nope you're over 18. officer Winters places Mr gallanakis under arrest for operating a vehicle while intoxicated and when Mr gallanakis reminds him that he blew a 0.0 on the breathalyzer officer Winters argues that he could be under the influence of a narcotic according to section 321 j.2 of the Iowa Code an individual commits the offense of operating while intoxicated if the person operates a motor vehicle wall under the influence of an alcoholic beverage or other drug or a combination of such substance while having an alcohol concentration of .08 or more or while any amount of a controlled substance is present in the person as measured in the person's blood or urine therefore a driver can be arrested for driving under the influence of alcohol or drugs even if their blood alcohol concentration is less than 0.08 in the 2004 case of State versus Truesdale the Supreme Court of Iowa explained that for the purposes of this statute quote a person is under the influence when the consumption of alcohol affects the person's reasoning or mental ability impairs a person's judge visibly excites a person's emotions or causes a person to lose control of bodily actions throughout the encounter officer Winters cited several factors to support his suspicion that Mr galanakis was under the influence including allegations that he fumbled with paperwork when he was first pulled over smelled like alcohol slurred his speech had bloodshot eyes and performed poorly during field sobriety testing although these factors could certainly support a finding of probable cause for an arrest in this instance it is likely that a judge's decision would turn on their assessment of Officer winters's credibility and whether or not they believed his allegations about Mr gallanakis's appearance and behavior notably the fact that officer Winters originally claimed to smell an odor of alcohol emanating for Mr galanakis's person is strongly undermined by the fact that he later blew a 0.0 and although it is possible that officer Winters could have smelled alcohol that came into contact with his clothing at his friend's house in my opinion this allegation significantly undermines officer Winter's credibility Additionally the body camera footage does not appear to show Mr gallanakis slurring his speech having bloodshot eyes or demonstrating any physical impairment when searching for his registration and insurance documents and while officer Winters may have been able to see things better in person the body camera footage at the very least calls his characterizations into question so you don't want to do the drug recognition evaluation we can do it so once when when we use weed last it's obviously so long I can't remember a double trouble it's been a really long time why wouldn't you tell me that in the in the in the field because I stopped in adding it doesn't look good for me and why is your field sobriety so bad it wasn't too bad I was doing good all right I'm gonna read the implied consent advisory to you just follow along with me as I already tell you after the arrest the officers transported Mr gallanakis to the Newton Police Station where he was held in a detention room on officer Winter's request Mr gallanakis agreed to submit to a drug recognition test and a urine test and officer shinkel a drug recognition expert with the Newton Police Department conducted a second round of field sobriety tests and several physical tests including a blood pressure test based on the results of these tests officer shinkel concluded shortly after 2 A.M that Mr gallanakis was not intoxicated and that he was not showing any signs of drug or alcohol use that Mr gallanakis was released without any charges being filed after the encounter Mr gallanakis repeatedly posted about his experience on social media and later shared an edited compilation of the body camera footage Newton Mayor Mike Hansen issued a statement explaining that he the city administrator the police chief Command Staff and and City attorney reviewed the incident and determined the stop quote was handled according to police departmental policy and according to the law instead the mayor's statement placed the blame on Mr gallanakis for failing to operate his vehicle in accordance with the law and for failing to listen to the officer's requests on January 5th 2023 Mr gallanakis filed a lawsuit against the city and the officers involved alleging false arrests civil rights violations and negligent supervision and training the lawsuit was removed to federal court on February 2nd and on February 9th officer winners and Lieutenant Wing filed counter claims against Mr gallanakis for making and Publishing written and oral defamatory statements making false complaints and intentionally inflicting emotional distress Mr gallanakis has filed a motion to dismiss the counter claims and as of the date of writing this episode both the counter claims and the underlying lawsuit are still pending overall officer winners and Lieutenant Wing get an F because although they mostly maintained a professional demeanor throughout the encounter and demonstrated a reasonable understanding of DUI testing procedures they ultimately arrested a driver who was not impaired based on dubious evidence after he blew a 0.0 although I cannot know for certain what was going on in officer Winter's head during this encounter it seems apparent that officer Winters decided very early in the interaction that he believed Mr galanakis was intoxicated and then attempted to bend the facts to bolster his suspicion for instance officer Winter's characterized Mr gallanakis's Difficulty in finding his registration documents as fumbling and would appeared to be his normal speech patterns as slurring his desire to demonstrate that Mr gallanakis was intoxicated even caused him to quickly pivot his allegations to drug impairment after Mr galanakis blew a 0.0 despite the fact that he earlier claimed to smell alcohol on Mr gallanakis likewise although I'm not an expert at field sobriety testing Mr gallanakis's failure to follow instructions seemed more indicative of him misunderstanding what he was was supposed to do rather than being too impaired to properly perform the tests and he did not appear to struggle with the physical aspects of the testing while it is possible that officer Winters was malicious in his behavior it seems more likely that officer Winters was not aware that he was misconstruing evidence based on his belief that Mr gallanakis was intoxicated and considered himself to be acting to protect the community from an intoxicated driver this encounter demonstrates the importance of officers conducting neutral and unbiased investigations that make conclusions based on the facts uncovered rather than trying to make the facts fit a predetermined judgment Mr galanakis gets a B for maintaining a calm demeanor throughout the encounter sharing his experience with the public after his arrest and taking Swift and appropriate legal action against the officers involved while he did insult and antagonize the officers at several points he mostly remained respectful and always stayed within his first amendment rights to express dissent to the officer's actions that being said Mr gallanakis's interests would likely have been better served by refusing to submit to field sobriety testing or a PBT as is his legal right to do so while I understand Mr gallanakis's instinct to want to prove his innocence the more information an individual provides the more likely they are to incriminate themselves in the eyes of an investigating officer particularly through highly subjective assessments such as field sobriety tests although it is still possible that officer winners would have arrested him for DUI Mr galanakis would have had a much stronger argument that the arrest was not supported by probable cause if he had refused to participate in testing let us know if there is an interaction or legal topic you would like us to discuss in the comments below thank you for watching and don't forget to check out my second channel for even more police interaction content [Music] thank you [Music]