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Legal Perspective: DUI lawyer analyzes Jon Jones’ tests, mistakes, and possible defense

In a special guest column, criminal and traffic defense lawyer Casey J. Bach gives a full breakdown of the legal aspects of Jon Jones’ DUI arrest video.

Anyone who has seen the footage of Jon Jones’ latest arrest in New Mexico doesn’t need a judge or jury to tell them that Jones’ actions have led him into another sadly familiar legal situation. While speculation about possible consequences has run rampant, it may be helpful to review the legal framework of the charges that Jones is facing, the tests that the police administered, specific mistakes that Jones made, and possible legal defenses.

Initiating a DUI Investigation

Police cannot just pull over and investigate drivers arbitrarily; they need to be able to articulate a “reasonable suspicion” to explain what caused them to apprehend a driver. In most DUI traffic stops, the officer observes unusual driving behavior (such as swerving or weaving in a lane, or driving without headlights at night) to support a reasonable suspicion that the driver is impaired.

In this case, no officers actually witnessed Jones driving his vehicle, but they had cause to apprehend him based on the fact that they heard a gunshot coming from the area where Jones was located. Jones was apparently the only person in the area, so it would be hard to argue that the police didn’t have cause to question him based on the gunshot.

The officers reportedly found Jones in the driver’s seat of a running vehicle. Unfortunately for Jones, simply operating a motor vehicle is sufficient to be found guilty of DUI. In other words, sitting in the driver’s seat of a running vehicle is “driving” for the purpose of “driving under the influence.” This has caused trouble for countless people who decide that they are too drunk to drive and need to sleep it off in their vehicle. It’s always smarter to make sure the vehicle is turned off and that anyone who has been drinking is not in the driver’s seat when “sleeping one off.”

Jones digs himself into a deeper hole by confessing that he had previously been driving the vehicle. Police are literally professionals at investigating crimes and getting information out of people, and it can feel awkward to decline to answer their questions, but it’s virtually never a good idea to answer questions and talk to police. Jones would have been better off if he had replied “Am I free to go sir? Respectfully, I don’t wish to discuss my night.” He may still have been arrested at the end of the traffic stop, but without Jones’ own admissions of guilt his attorney may have had more room to argue legal defenses.

Field Sobriety Tests

The police know they are in “DUI territory” once they have seen Jones operate a vehicle (even without his confession to driving) and have noticed clues that he is intoxicated, such as an open container of liquor being out in plain sight where the police can see it, the smell alcohol on Jones’ breath/face, and the fact that he was struggling with basic tasks such as presenting his vehicle documents. However, they still need more evidence of a crime to support “probable cause” to actually make an arrest.

The National Highway Traffic Safety Administration (NHTSA) has developed standardized field sobriety tests (FSTs) for officers to administer in DUI investigations. The first standardized test is the Horizontal Gaze Nystagmus (HGN) test. This test tasks the driver with following a moving object with his eyes and eyes only. If the officer observes that the subject’s eyes can’t smoothly track the object and instead sort of lag and follow unevenly, and if the officer observes the eyeballs involuntarily twitching, NHTSA research asserts that there is an 88% chance that the subject has a blood alcohol content (BAC) that is greater than the legal limit of 0.08%. Other problems such as medical impairments could serve as alternative reasons for failing the HGN test, but Jones tells the officer that he is not suffering from any medical impairments. Without being able to see Jones’ eyes in the video, it’s impossible to say how he performed on the test.

There are two other NHTSA standardized FSTs, both of which are designed to test how the driver performs when asked to divide his attention between physical and mental tasks. Both tests ask the driver to simultaneously complete a simple physical task and a simple mental task; these tasks would be easy for a healthy, sober, young person, but become difficult for people who are under the influence.

The first test is the Walk and Turn test (WAT). The WAT tasks the driver with taking nine heel-to-toe steps along an imaginary straight line, making a turn consisting of several small steps, and then taking nine heel-to-toe steps back. When administering the WAT, the police are not just looking to see if the driver looks generally drunk, but are looking for NHTSA-specified mistakes or clues. Many drivers don’t realize that the test begins during the instruction phase, and that failure to keep balance (or failure to stay in heel-to-toe posture) while listening to the instructions counts as a clue. The other standardized clues are whether the subject starts too soon, stops while walking, does not touch heel-to-toe, steps off the line, uses his arms to balance, makes an improper turn, or takes an incorrect number of steps. If the officer observes at least two of those standardized clues, NHTSA asserts that there is a 79% chance that the subject’s BAC is greater than 0.08%. Note that each clue can only be counted once per test – i.e., if a subject “stops while walking” two or more times, that only counts as one clue.

In borderline WAT cases, defense attorneys may argue that the officer was being too strict in assessing clues. Review of the arrest video might be ambiguous, giving the lawyer room to argue for example that the officer wrongfully counted the “does not touch heel-to-toe” clue when in fact the driver’s feet were reasonably close heel-to-toe. Unfortunately for Jones, he very clearly exhibits multiple WAT clues in his arrest video. Jones initially does a decent job of taking nine heel-to-toe steps along the line without falling off balance, and even starts to perform a proper turn, but then hesitates and decides for himself to start over. Jones explains that he needs to start over because he “wasn’t concentrating” and has ADD. To the officers, Jones’ inability to perform and remember the basic test has already indicated that he cannot divide his attention and is likely impaired, though it may be interesting to see if Jones’ lawyer can concoct a real legal argument that his failure was due to ADD. This would probably be a stronger argument if Jones did a better job on the tests and failed in a more borderline manner.

On his second attempt, Jones again freezes when it comes time to execute the turn. He squats down almost as if he is about to do a jumping 180, and instead just decides to abandon the test and walk back in a non-heel-to-toe manner. Of course, it is up to the officer and not the suspect to determine when to conclude a FST, so Jones’ utter failure to properly complete the WAT is strong evidence that there is probable cause to arrest Jones for DUI.

The second standardized divided attention test is the One Leg Stand (or “OLS”), which requires the subject to raise either leg, keep the raised foot approximately six inches off the ground and parallel to the ground, with both legs straight and the subject’s arms at his side. While holding this position, the subject must keep his eyes on his raised foot, and count out loud starting at “one thousand one.” The officer will time the subject and require him to hold the position for 30 seconds. The officer is again looking for standardized clues – whether the subject sways while balancing, uses his arms to balance, hops on his foot, or puts his lifted foot down. If the officer observes at least two of those standardized clues, NHTSA asserts that there is an 83% chance that the subject’s BAC is greater than 0.08%.

Before starting the OLS, Jones says he doesn’t have any questions, but that his short-term memory is really bad. Obviously this excuse isn’t enough to get the officer to stop the arrest procedure, but again it could actually form the basis of an argument that Jones failed these tests due to some combination of ADD and short-term memory loss, and that the officer shouldn’t have considered this evidence as giving rise to probable cause to make a DUI arrest.

That said, Jones does a terrible job on the FST. He immediately sticks his arms out for balance, triggering the first clue for the officer. It doesn’t take long at all before Jones is both swaying heavily and hopping on one foot.

Jones then again confesses to driving his vehicle, and performs a few other tests before being arrested for DUI. While the three aforementioned FSTs are the only standardized FSTs that NHTSA vouches for, in general it doesn’t hurt an officer’s case to collect more footage of the suspect looking generally impaired, in case the defense lawyer tries to argue that the FSTs were not correctly administered or raises another defense. Jones does a very poor job of completing basic tasks, and the footage becomes uncomfortable as Jones tries to deflect blame and attention by bringing up random facts about his family.

With plenty of evidence to support probable cause that Jones was driving under the influence, the officers arrest Jones and take him to the police station, where he will have to submit an official sample to determine his BAC. Ultimately he was found to have a BAC of more than double the legal limit of 0.08%.

Potential Legal Outcomes

It’s difficult to speculate a final outcome for Jones here; there is a wide range of potential plea bargains that the prosecutor may or may not agree to, though Jones’ team loses leverage to negotiate since it seems possible that there is sufficient evidence to convict him if the case goes to trial. A look at the New Mexico criminal code can at least give us a ballpark estimate of what kind of sentence Jones may be facing.

DUI penalties vary state by state, but are generally considered more serious when the driver has a particularly high BAC, and/or when the driver has previous DUIs on his record. This is Jones’ second DUI, and in New Mexico a second DUI is a misdemeanor offense, which means that the maximum penalty is less than one-year incarceration. While many misdemeanor offenses do not result in any jail time, in New Mexico a second DUI with an elevated BAC of twice the legal limit carries a mandatory minimum sentence of eight days incarceration. In addition to jail time, if convicted as charged Jones would be subject to an array of probation programs, drug and alcohol screenings, fines, and other consequences.

Jones is also charged with negligent use of a deadly weapon, a misdemeanor offense with no mandatory minimum sentence. The prosecution need only prove that Jones carried a firearm while intoxicated for him to be found guilty of this offense. Since the police found a firearm in Jones’ vehicle, the key to defending this charge is whether or not the defense team can suppress the evidence that Jones was intoxicated.

One would imagine that Jones’ defense team might be interested in negotiating a plea deal where the DUI charge is amended to a regular DUI rather than an elevated charge for a second offense with high BAC. The thinking would be that Jones is likely to be found guilty regardless, and that it is better to accept other consequences to avoid jail time. Since Jones may only be looking at a short sentence, it is possible that the prosecutor would be willing to enter a plea deal that forgoes the jail time in exchange for a guilty plea that guarantees a conviction and avoids the uncertainty of trial and potential appeals.

Whether Jones is found guilty as charged or enters a plea deal, it seems unlikely that he will escape this incident without a conviction of some kind. In the big picture, what matters isn’t really that Jones may have to serve a short jail sentence, but that he is engaged in an extremely dangerous and destructive pattern of driving under the influence. Not only does each subsequent DUI carry stricter penalties with longer mandatory jail sentences, but Jones also risks harming or even killing himself or someone else when he decides to drive with a BAC that is more than double the legal limit.

Jones’ defense lawyers may be able to help him through the legal ramifications of this incident, but only Jones himself can determine what will happen to him after that.

Casey J. Bach is a criminal and traffic defense lawyer practicing in the Northern Virginia area. If you are dealing with criminal or traffic issues in Northern Virginia, you can reach Casey at the Law Office of Hale Hawbecker by emailing

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