Category Archives: Field Sobriety Tests

State Supreme Court: “No Reliable Scientific Test for Marijuana Impairment”

It is, of course, illegal to drive a vehicle while impaired by the effects of marijuana.  The continuing problem, however, is:  How do you prove that a driver is, in fact, under the influence of marijuana?

Law enforcement currently relies primarily upon the opinions of police officers as to whether a suspect is unable to safely operate a vehicle due to marijuana impairment.  The primary tool used to arrive at this opinion is the same as for alcohol impairment: field sobriety tests.  These highly subjective roadside "tests", administered and interpreted by a police officer with little training, is coming under increasing scrutiny — as reflected in yesterday’s decision by the Massachusetts Supreme Court:
 

Court: Roadside Drunken Driving Tests Not Valid for Pot

Boston, MA.  Sept 19 – The highest court in Massachusetts has ruled that field sobriety tests typically used in drunken driving cases cannot be used as conclusive evidence that a motorist was operating under the influence of marijuana.

The Supreme Judicial Court on Tuesday said police officers could testify only to their observations about how a person performed during a roadside test.

But they would not be allowed to testify as to whether a person passed or failed such a test or offer their own opinions about whether a driver was too high to drive.

The justices said there is currently no reliable scientific test for marijuana impairment.

Adult use of recreational marijuana is now legal in Massachusetts, though the court noted it’s still illegal to drive while high on pot.


Absent evidence of impairment based upon field sobriety tests, the only other evidence (independent of a police officer’s subjective opinion), is a blood test.  This, however, has been proven to be highly unreliable.  See, for example, Can DUI Marijuana Be Detected or Measured?, How Much Marijuana Does It Take to Impair Driving? and New Study: Minimal Impairment from Marijuana.

(Thanks to Joe)

 

Do I have to Take a Breath Test?

You heard me say a couple of weeks ago that breathalyzers are inaccurate and, as a result, lawyers can challenge the results of a particular breathalyzer. Lawyers, however, cannot challenge breathalyzers generally even though they are inaccurate.

This begs the question: Do you have to take a breathalyzer test?

Like many things in law, the answer is that it depends. In California, there are two different “breathalyzer” tests. One test is required by law, while the other is not.

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

The California Vehicle Code is referring to the roadside breathalyzer, called a preliminary alcohol screening test (PAS test), that officers use to obtain the evidence they need to make a DUI arrest. As an officer makes a stop, whether the officer suspects a DUI or not, they don’t have the evidence needed to arrest the driver on suspicion of a DUI. To obtain that evidence, the officer may ask the driver questions, the officer may have the driver perform field sobriety tests, and the officer may ask the driver to submit to a PAS test. In fact, the PAS test is considered a field sobriety test.

Like the field sobriety tests, the PAS test is optional. Also like the field sobriety tests, a driver should not submit to the PAS test.

In fact, the investigating officer must advise the driver that the PAS test is, in fact, optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

If a driver tells the officer they consumed alcohol or the driver performs and fail the field sobriety tests or the driver provides a PAS sample that shows the presence of alcohol, the driver will likely be arrested on suspicion of a California DUI.

Once the driver is arrested, the California Vehicle Code requires that the driver submit to a “chemical test,” which can either be a breathalyzer test or a blood test. This is called California’s “implied consent law.”

California Vehicle Code section 23612(a)(1)(A) states, “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

In other words, if you can legally drive in California, you have impliedly consented to a chemical test if you are lawfully arrested on suspicion of a DUI.

Unlike the PAS test, if you are arrested for a DUI and you do not want to provide a blood sample, the chemical breath test is not optional.  

In fact, refusing the chemical test can lead to increased penalties such as a longer DUI school, a longer license suspension, and even jail time.

To sum up, the pre-arrest PAS test is optional and you should always politely decline this test. A post-arrest chemical breath test is required provided the suspect opts not to provide a blood sample.

Failing the Field Sobriety Tests without Being Drunk

Field sobriety tests and DUI stops go hand in hand. In fact, field sobriety tests are the things that my clients most closely associate with a DUI stop. Yet, very few people know that they are optional. Because most people mistakenly believe that they are mandatory, they take them and “fail” even though they may not even be under the influence.

So how does a person fail the field sobriety tests while without even being under the influence?

Law enforcement agencies in California and throughout the country use a number of field sobriety tests to gauge a person’s coordination, balance, and simple motor skills. The National Highway Traffic Safety Administration has approved three field sobriety tests as “standardized.” These test include the Horizontal Gaze Nystagmus (HGN) Test, the Walk-and-Turn Test, and the One-Leg Stand Test. However, police officers also use non-approved field sobriety tests to gather the probable cause necessary to make a DUI arrest. Those tests include the Rhomberg Balance Test, the Finger-to-Nose Test, and the Finger Tap Test.

Although field sobriety tests are intended to gauge a person’s coordination, balance, and simple motor skills after having consumed alcohol, standardized or not, field sobriety test can be unreliable for a number of reasons.

Tiredness:

We all know that driving tired is dangerous. However, while it may be dangerous, it is not illegal. When a person is tired, they exhibit many of the same symptoms of intoxication. Poor coordination, lack of balance, and trouble with motor skills are symptoms of both tiredness and intoxication. Whether the symptoms come from tiredness or intoxication, they can cause a person to fail field sobriety tests. What’s worse is that when a person is tired, they also display other symptoms of intoxication that officers often look for during a DUI stop; bloodshot water eyes and slurred speech.

Physical Problems:

Many people experience physical problems or disabilities which may affect how a person performs on field sobriety tests. Problems such as knee or back pain would make it difficult to perform the physical requirements of field sobriety tests.

People who are older or over weight, may have trouble performing the field sobriety tests for the same reasons.

Balance Problems:

Many times people are suspected of driving drunk following a vehicle collision and are often given field sobriety tests shortly after the collision. Poor performance on the field sobriety tests is attributed to intoxication rather than the after-effects of a vehicle collision.

Without even knowing it, many people suffer from inner ear problems. The inner ear contains a small organ called the labyrinth that helps people maintain balance. When the labyrinth is disrupted, so too is that person’s balance. Some of the things that can disrupt the labyrinth include infections and illness, head trauma, age, and tumors, to name a few.

Nervousness:

Have you ever been pulled over? We you nervous? My guess is that you answered yes to both questions. It goes without saying that people are nervous and stressed when they get pulled over. When people are nervous and stressed, they have difficulty concentrating. Unfortunately, concentration is a key component in completing the field sobriety tests. Officers will “fail” a person if they cannot follow instructions in performing the field sobriety tests even though it was due to a lack of concentration, not intoxication.

Officer Interpretation:

Much of the time, officers have already made up their minds that a person is driving under the influence when they make the DUI stop. This pre-conceived notion in conjunction with a psychological phenomenon called the “confirmation bias” causes the officer to interpret field sobriety test performance as “failing” regardless of how the person actually performs.

 

Roadside Oral Swab Tests Coming?

Breathalyzers only test for the presence of alcohol.  And until relatively recently that was sufficient.  But with the increased use of marijuana and drugs — both illegal and prescribed — it was inevitable that new tests would be needed.  And as I wrote in a post here one year ago, the California legislature had been working with a bill to authorize new tests of breath and oral fluids.  See California Proposes New Law to Allow Roadside Marijuana Testing.  That bill apparently was put on the back burner and died.

Now it appears that a new bill is being proposed that would permit law enforcement to take swabs from the mouths of drivers and test them with new devices — all at the scene of the roadside investigation.


Driving While High?  California Lawmakers Want to Use New Test to Check

Sacramento, CA.  April 6 - With medical marijuana in widespread use and a ballot measure planned to legalize recreational pot in California, state officials Tuesday proposed using new technology to catch the increasing number of motorists who are driving while high.

Legislation would allow law enforcement officers to use oral swab tests to strengthen cases when there is probable cause that a driver is impaired and the driver has failed sobriety field tests.

A hand-held electronic device would test for the presence of marijuana, cocaine, amphetamines and pain medications, including opiates, on the swab, according to Republican Sen. Bob Huff of San Dimas, who authored the bill.

“Sadly, we’ve become a nation of self-medicating, careless people,” Huff said. “The public is naïve in understanding how dangerous our roads are made by people who are abusing opiates, meth and cannabis.”


The use of small, handheld breath testing devices have proven to be less than accurate and reliable.  And even laboratory drawing and testing of blood for marijuana and a wide variety of drugs in blood samples is considered inconclusive more often than not.  Somehow, I question whether cops will now be capable of obtaining uncontaminated samples of saliva on the side of a busy and dirty highway and then testing those fluids with a small, "hand-held device" — and getting anything even remotely reliable and accurate.

"Proof beyond a reasonable doubt"….DUI version.  (See my post, Proof Beyond a Reasonable Doubt?)
 

What is the Difference between a PAS Test and a Chemical Test?

Most people are unaware that many California DUI stops include two separate and distinct breath tests. And people are often confused about whether they must provide a breath sample to both or either test. It is admittedly confusing, and most people are surprised when I tell them that one of the breath tests is required and the other is not.

The two tests I am referring to are 1.) the preliminary alcohol screening test (PAS test), and 2.) the chemical breath test. While they are both “breathalyzer” tests, their distinction lies in when the DUI arrest is made.

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

Following a California DUI stop, but before a DUI arrest, an officer may request that the suspected drunk driver perform field sobriety tests which, most people know, includes the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test. What most people don’t know, however, is that the breathalyzer test requested by officers before an arrest is also a field sobriety test. This is the PAS test. And like the other field sobriety tests, the PAS test is optional.

The investigating officer must advise the DUI suspect that the PAS test is, in fact, optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

Field sobriety tests, including the PAS test, are a means to determine if the officer has the required probable cause to arrest the DUI suspect for a California DUI.

If the officer has the requisite probable cause to make an arrest, whether through the field sobriety tests, the PAS test, or any other information, California’s Implied Consent Law kicks in. Herein lies the difference between a PAS test and a chemical test.

California Vehicle Code section 23612(a)(1)(A) sets forth the Implied Consent requirement. “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

In other words, licensed California drivers have impliedly consented to provide a chemical test following a lawful DUI arrest.

The post-arrest chemical test can be either a breath test or a blood test. If a person opts against providing blood, they must provide a breath sample. And for this breath test, they will be taking a breathalyzer very much like the PAS test.

The short version of this article is this: A pre-arrest PAS test is optional and you should always politely decline this test. A post-arrest chemical breath test is required provided the suspect opts not to provide a blood sample and provided that the arrest was lawful.