Jon “Bones” Jones did it again.  Arguably the best Mixed Martial Artist of our time, was recently arrested for his 2nd DUI on March 26th, 2020.   While this arrest was in Albuquerque, New Mexico, I am going to break this down as if this was in Florida.   Follow along here.

Does an Officer Have to Do a DUI Investigation?

This officer says he “has to do a DUI” investigation.   No officer “has to” do a DUI investigation.  In fact, in Florida the officer offers the offender field sobriety exercises (fse’s), and if they refuse, the officer provides what are called “Taylor” warnings.  These warnings are to inform a suspect the officer believes the person is under the influence and they will have to make their decision just based on the information they have.  Also failure to do the requested exercises can be used against you in court.

Do You Have to Answer If You Had Anything to Drink?

Right out of the box, Jon admits he had alcohol earlier in the night.   This is his first mistake.   Do you have to answer if you have been drinking? The short answer is no.  You can invoke your 5th amendment right to remain silent.

Field Sobriety Exercises

Right out of the box, the officers involved in this arrest did not do a good job of capturing these tasks on their Body Worn Camera.  Huge Mistake.   There appears to be two officers, simple positioning of the backup officer could have given a better glimpse of his performance.

First Exercise – HGN

The first field sobriety exercises Jon does is the HGN.  Notice how I say exercise and not test.   Commonplace, people think these are tests, pass/fail.  They are not, they are exercises for which an officer gains clues to the impairment of a driver.   The HGN is the pen light exercise that helps determine if there is nystagmus in an individual’s eyes.  This is probably the most telling exercise an officer can do to determine impairment.

We can’t see here his performance, for the reasons stated abode.  However, I would argue you can’t see him off balance so much. I can tell you in Florida most officers are not qualified to testify to the performance in trial and this “exercise” can often be excluded if the officer is not a “DRE” or drug recognition expert.

Walk and Turn

The officer asked Mr. Jones to step on an “imaginary line” left foot in front of the other.  The Officer’s next big mistake, there are actual lines on the ground.  Why use an imaginary line, where there is a suitable line on the ground?  Rookie mistake.

After the officer explains the exercise, Jon takes what appears to be more than the 9 required steps.   He also is not going heal to toe.   These are two indicators that don’t bode well for him.  He then says he is going to start over because he has ADD (attention deficit disorder) and gets punched in the head regularly.   These two facts if true (we know one is) could have an effect of whether or not he would be impaired because he couldn’t concentrate, or he has a neurological problem that might prevent him from doing these exercises.

The second time he performs them he looks good but forgets to turn around and do 9 more steps back.

One Leg Stand

Once again, he explains to the officer his short term memory is really bad.   If proven this could dissuade a jury from holding against him the lack of following directions.  His actual performance is not up to par.  He raises his hands for balance, hops and doesn’t keep his foot 6” of the ground.   One can easily argue this test is difficult if you were sober.

The Alternative Exercises

The alternative exercises provided (numeric and alphabet) are used to give an officer an indicator if someone is physically unable to do a physical exercise.   This would address physical injury.  I don’t know if someone had a neurological condition or ADD as suggested that these would aide this officer in determining impairment.

Conclusion

I have not read the probable cause affidavit; I don’t know if he gave a breath sample.  I am not going to make a judgment of whether he was impaired.  I can tell you that there is a lot to work with from a DUI defense attorney’s standpoint.  

I hope you can see that not all DUI cases are a black and white issue; drunk or not Drunk. That is why if you are arrested for DUI, you need an experienced DUI attorney who can properly evaluate the field sobriety exercises and make the right arguments for you.

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