Category Archives: Field Sobriety Tests
Three weeks ago, I posted about the Minnesota Court of Appeals decision which held that a motorist suspected of drunk driving could not be criminally prosecuted for refusing to submit to a blood test. See Is It a Crime to Refuse to Give Blood in a DUI Case? Two days later, I reported that the Hawaii Supreme Court decided that a DUI suspect’s consent to a breath test was invalid — and the test inadmissible — because it was coerced by the threat of criminal prosecution for refusing. See State Supreme Court: Punishing Refusal to Submit to Blood Test Voids Consent.
Doesn’t this amount to charging the driver with a crime for asserting their Constitutional rights?
Last week, the United States Supreme Court agreed to review three cases from two states involving this increasingly controversial approach to drunk driving of prosecuting DUI suspects for refusing to take chemical tests.
Supreme Court to Rule on Drunk-Driving Breath Tests
Washington, DC. Dec. 11 — Can states charge motorists with a crime for refusing to take a breath test on suspicion of drunk driving when police lack a warrant? The Supreme Court will decide.
The justices agreed Friday to hear cases out of Minnesota and North Dakota in which drivers were charged with a crime after they refused to take "deep-lung" breath tests. Thirteen states make it a crime to refuse blood alcohol tests: Alaska, Florida, Hawaii, Indiana, Kansas, Louisiana, Minnesota, Nebraska, North Dakota, Rhode Island, Tennessee, Vermont and Virginia.
In addition, California, Mississippi, Missouri and Montana have considered such laws, according to lawyers for the challengers in the Minnesota case.
"Nationwide, it is certain that tens, and perhaps hundreds, of thousands of people are subjected to criminal penalties under these statutes every year — and if the arguments presented here are correct, the federal constitutional rights of all of these people are being infringed," their brief to the high court said…
The court ruled in 2013 that police could not conduct blood tests for drunk driving without a warrant. Based on that, the challengers in the Minnesota and North Dakota cases said, refusing such tests should not constitute a separate crime.
Can a DUI suspect be charged with a crime for asserting his constitutional right under the Fourth Amendment — that is, his right not to have his body searched for blood or breath without a warrant?
The following is an excerpt from an editorial appeared in this morning’s Los Angeles Times:
Sobriety Tests and the Law
…Last week the U.S. Supreme Court agreed to decide three cases in which motorists suspected of driving drunk are contending that their constitutional rights were violated….May a state criminally prosecute a motorist for refusing to submit to a blood, breath or urine test in the absence of a warrant?…
It seems clear that it’s wrong to criminalize the refusal to submit to a test for which police haven’t obtained a warrant. Not only do such laws punish suspects for asserting their rights under the Fourth Amendment; they also effectively provide an end run around the court’s 2013 decision….
It will be interesting to see if the Supreme Court finds yet one more "DUI Exception to the Constitution".
One of the biggest areas of confusion when it comes to a California DUI is the chemical test. More specifically, one of the most asked questions regarding the chemical test is whether a person should submit to a breath or a blood test.
Before I get into whether a breath test or a blood test is better, let me start off by saying that, yes, California law requires that someone who has been arrested for a California DUI submit to a chemical test. Any test requested by an officer prior to arrest, including field sobriety tests and a pre-arrest breathalyzer (called a “PAS” test), is optional. And I would never suggest submitting to them. Why give the officers any more reason to arrest you when you don’t have to?
Once a person is lawfully arrested for a California DUI, however, they must submit to a chemical test under California’s “Implied Consent” law which can either be a breath or a blood test.
Ok, so now on to the question of whether a person should submit to a breath test or a blood test after they’ve been lawfully arrested. Unfortunately, like many questions dealing with the law, the answer is: it depends.
The blood test is far more accurate than the breath test and much less likely than a breathalyzer to produce a false reading. Also, when law enforcement draws blood from a DUI suspect, they are required by law to preserve a sample of the blood for the defense. This means that the defense attorney can request that a portion of the blood be sent to an independent analyst for re-testing. This is called a “blood split” and is used to contradict the results of the state blood test results or possibly to show contamination of the blood sample.
If a person knows that they are under the legal limit and a blood test is likely to show that they are under the legal limit, a blood test might be the better option because it is more accurate. On the other hand, for the same reason, the blood test may not be the best option for someone who will likely test over the legal limit.
The breath test is far less reliable than the blood test and can be inaccurate for a number of reasons. Without addressing all of the problems with breathalyzers here, I’ll just point you to Lawrence Taylor’s post:
In fact, it is not uncommon for a breathalyzer to provide a false positive result for someone who is actually under the legal limit.
While the general accuracy of breathalyzers cannot be legally challenged as a whole, a skilled California DUI defense attorney can challenge the reliability of the particular breathalyzer that was used in a DUI arrest.
If a person knows that they are likely to be above a 0.08 percent blood alcohol content, the breathalyzer is likely the better option because it is easier to refute the results.
So to answer the question of whether a breath or a blood test is the better chemical test, it really does depend. It depends on whether the person believes they are actually over or under the legal limit. If you believe that you are under the legal limit, the blood test is the better option because the accuracy of the blood test will show that you are, in fact, under the legal limit. On the other hand, if you believe that you are over the legal limit, the breath test is the better option because it is easier to refute the results.
I’ve written repeatedly in the past about the inherent inaccuracy and unreliability of breath testing machines (generically referred to as "breathalyzers"). See, for example, How Breathalyzers Work — and Why They Don’t, What Makes Breathalyzers Inaccurate? and Ohio Rejects Popular Breathalyzer: Accuracy Challenged. And see a treatment of the issue on my law firm’s website, Breathalyzer Accuracy.
Independent of the inherent problems in the machines and the variations of human physiology involved, a further issue has always been the reliability of the governmental crime laboratories responsible for the calibration and maintenance of the machines. See my posts, Lab Fraud Discovered in Breathalyzer Accuracy Checks, How to Prove Breathalyzer Accuracy: Falsify the Records and Houston Grand Jury Subpoenas DAs in Breathalyzer Cover-Up.
As an example, consider the following recent ABC-TV news story:
Forensic Failures at State Crime Labs May Jeopardize Cases
Chicago, IL. Sept. 23 – Some drunk drivers could go free because of law and disorder at Illinois State Police crime labs.
The ABC7 I-Team uncovered a pattern of forensic failures that could put criminal cases in jeopardy and risk thousands of charges and convictions being thrown out.
Unreliability in science is like a bull in a china shop: it can wreck everything. The Illinois state crime lab is under fire by a criminal defendant who may have been wrongly charged- using evidence with inaccurate or unreliable test results – and under fire by defense attorneys and experts alarmed by what they see as shoddy science.
James Kisla struck a pedestrian on Yackly Avenue in Lisle. According to court records, a couple ran across the middle of a street, into traffic, in front of Kisla’s car.
Kisla wasn’t ticketed in the 2011 accident but a sobriety test had him just beyond the legal limit. Then Kisla’s lawyer discovered this – a 2011 internal audit of the Illinois State Police Laboratories and blood alcohol test inaccuracies.
State police officials tell the I-Team their tests results were accurate. But the audit called for corrective action – a revision of the labs’ "scientific method" and ordered "in-service training for the state police toxicology section."
Kisla’s lawyer, Don Ramsell, showed the audit to prosecutors. "The prosecutor decided not to even bring the blood test results into evidence. It only took one day after for the judge to declare Mr. Kisla innocent of all the charges," Ramsell said.
Up to 15 years in jail – but Kisla was cleared because the state police forensic tests were unreliable…
The I-Team found more lab mistakes occurring in the state’s labs. We examined these internal Illinois State Police lab audits and reports going back to 2003 and found numerous blood and urine testing errors. "Test samples (were) switched," there were "mislabeled specimens", a "mix up of results," "improper calibrations" of tests, "improper methods (were) used," and "samples wrongly destroyed."
But Ramsell says the biggest problem is none of the state’s lab results for blood and alcohol tests can be considered reliable. That is because their lab technicians have never performed "method validations" on their testing procedures – a fundamental check and balance in the science world.
"Not only is it completely unacceptable but it’s shocking that no one from the state police ever reported that to anybody," Ramsell said…
Yet the readings from these unreliable machines are automatically assumed by law to be reliable and admissible in evidence — unless the defendant can somehow prove they aren’t. And once admitted in evidence, the jury in most states is given jury instruction stating that if the reading is over .08%, the defendant is rebuttably presumed by law to be guilty. See my post, Whatever Happened to the Presumption of Innocence?.
I have never seen a police report say that a California DUI suspect “passed” the field sobriety tests performed after a DUI stop. Does that mean that all of those suspects were intoxicated? No.
This necessarily means that people can fail field sobriety tests while sober. But how?
Field sobriety tests are notoriously unreliable. Yet law enforcement agencies continue to employ the Horizontal Gaze Nystagmus (HGN) Test, the Walk-and-Turn Test, and the One-Leg Stand Test to determine intoxication. These are the tests that the National Highway Traffic Safety Administration has designated as standard. Other tests include the Rhomberg Balance Test, the Finger-to-Nose Test, and the Finger Tap Test.
Field sobriety tests are used to gauge a person’s coordination, balance, and simple motor skills after they have consumed alcohol. And while they may, in fact, test coordination, there are a number of reasons why a sober person might fail a field sobriety test.
Needless to say, most people are both stressed and nervous when they are pulled over and asked to step out of their vehicle. The stress and nervousness inevitably make it difficult to concentrate. Yet officers regularly fail a person for having trouble following the field sobriety test instructions.
A person who is intoxicated may likely exhibit trouble with balance. Lack of balance is what officers look for when a suspected drunk driver performs field sobriety tests. However, balance can be affected by many things, one of which is inner ear problems. The inner ear contains a small organ called the labyrinth that helps us 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.
Physical problems and disabilities can also affect a person’s performance on field sobriety tests. Physical problems such as knee pain or lower back pain may make it difficult to, say, walk heel to toe in a straight line or stand on one leg perfectly still for 30 seconds.
For the same reasons, people who are older or who are overweight may also have trouble performing field sobriety tests that require coordination and balance.
While it may be dangerous to drive while tired, it is not illegal like driving under the influence. However, lack of sleep can cause many of the same symptoms as intoxication. When people are tired they can experience poor balance, lack of coordination, and trouble with motor skills. What’s more, when someone is sleep deprived and tired, they exhibit bloodshot, watery eyes. Unfortunately, bloodshot, watery eyes are amongst law enforcement’s favorite indicators of intoxication.
Perhaps one of the most powerful factors affecting a person’s purported performance on field sobriety tests is the officer’s interpretation of that person’s performance. Law enforcement officers have already decided that a person is intoxicated even before the person performs the field sobriety test. As a result, the officers are going to see what they expect (or want) to see.
I could go on with many other reasons why sober drivers fail field sobriety tests, but that would make this post extremely lengthy. Suffice it to say, field sobriety tests are unreliable and sober people do fail them.
Having said that, drivers have a right not to and should not ever agree to perform field sobriety tests because they will fail whether they were intoxicated or not.
People are often confused about whether the law requires them to take a breathalyzer during a California DUI arrest. Unfortunately, the answer is just a little more complicated than just “yes” or “no.”
I often use the term “breathalyzer” in my posts for both a preliminary alcohol screening test and a chemical breath test. They, however, are not the same thing. In fact, the type of test being administered will determine whether a person is required to take the test or not.
For chronological clarity, let’s start with the preliminary alcohol screening (PAS) test.
When an officer stops a driver and begins investigating a possible California DUI, they may conduct several field sobriety tests. These tests include the horizontal gaze nystagmus test, the one-leg stand test, or the walk and turn test. The PAS test is a breathalyzer test which is considered a field sobriety test. Like the other field sobriety tests, the PAS test is optional.
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.”
As a field sobriety test, the PAS test is not required. Law enforcement is required to advise that the PAS test is, in fact, voluntary. 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.”
In other words, the PAS test is only used as a means to determine if there is enough probable cause to arrest a person for a California DUI.
However, once a person is lawfully arrested for a California DUI, California’s Implied Consent Law requires a person to submit to a chemical test which can be either a breath or a blood 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].”
This essentially means that if you are licensed to drive in California, you have impliedly given consent to submit to a chemical test if you have been lawfully arrested for a DUI. The operative words here are “lawful arrest.” The obligation to submit to a chemical test only attaches once a person is lawfully arrested. Before that point, no obligation exists.
So then what does it mean to be lawfully arrested for a California DUI?
An officer can arrest someone if they have probable cause to believe that the person is driving drunk. Probable cause exists when an officer has reasonable and trustworthy facts that would lead a reasonable person to believe that the person has been driving drunk.
Officers obtain probable cause for a DUI arrest through the driver’s statements that they have been drinking, driving patterns consistent with intoxication, observations of signs of intoxication, and failure of field sobriety tests…including the PAS test.
The officers use the PAS test, which is optional, to determine if there is probable cause for a DUI arrest. If there is probable cause for an arrest, and a person is arrested, they must submit to a chemical test which can be either a blood or a breath test.
Bottom line is: Don’t give the officers the probable cause when you don’t have to. Like other field sobriety tests, always respectfully decline the PAS test.