Sobriety Tests For DUI
Can the police use my statements during a DUI arrest as evidence in court?
As a general rule, anything that you say to the police during the DUI investigation and arrest can later be used against you in court. The exception is if the statements run afoul of your Miranda rights. After the police arrest you - after they put on the handcuffs, put you in the car and take you away - at that point if they are going to continue to interrogate you and continue to ask you questions like what you were doing, how much you drank, or whether you feel drunk, at that point they have to advise you of your Miranda rights. If they do not advise you of your Miranda rights after you were arrested and they continue to interrogate you, then anything that you say in response to the questions can be excluded from evidence and not used against you.
What are three nationally standardized DUI field sobriety test?
The federal government has done a series of studies to determine what are the most reliable of the field sobriety tests. And they have come up with three, and they're called the standardized field sobriety tests. The first standardized field sobriety test is the horizontal gaze nystagmus test. That's where you're asked to follow a stimulus with your eyes, and the officer looks to see if you have a nystagmus, which is an involuntary jerking of the pupil which is associated with impairment. The second standardized field sobriety test is the walk and turn test. That's where you're asked to walk a line, nine steps in each direction. And the third of these standardized field sobriety tests is the one-leg stand test, where you're asked to lift one foot off the ground and hold it there for 30 seconds.
Are DUI field sobriety tests accurate and reliable?
There is a debate about the extent to which field sobriety tests are accurate and reliable. According to the federal studies, the horizontal gaze Nystagmus test where you follow stimulus with your eyes is considered to be 77% accurate. The walk and turn test where you walk nine steps in each direction is considered to be 68% accurate, and the one leg stand test which is where you lift a foot off the ground for 30 seconds is considered to be 65% accurate. The upshot of that is that even if you believe these statistics, if somebody were to be arrested and prosecuted on the basis of these tests, then 20 to 30% of them would be wrongfully arrested and prosecuted. What we do know is there are many factors other than alcohol that can cause somebody to perform poorly on the field sobriety tests. Among those factors would be physical impairment, injuries, being overweight, being elderly, wearing high-heeled shoes, wearing uncomfortable shoes, being nervous, being intimidated, being distracted by traffic that is whizzing by, weather conditions, if it is particularly hot, particularly cold, rainy. Also, if they are asked to do these tests on an uneven surface, any of these factors which are not alcohol related can cause somebody to perform poorly.
What if I have physical limitations and a police officer orders me to perform a field sobriety test?
If you have physical limitations and you are asked to perform the field sobriety tests, you can say no. In fact, even if you don't have the physical limitations, these tests are voluntary and you can refuse to take them. But, in particular, if you have a physical impairment, then you can refuse to take them. If you are not aware that you had a right to refuse a test and in fact took the test, and you do have injuries or some physical limitation, then that can help explain why you performed poorly -- if you did perform poorly -- as opposed to alcohol being the reason for you performing poorly.
What are non-standardized DUI field sobriety tests?
The non-standardized field sobriety tests are ones that are not certified by the federal government. They're other than the three that are certified by the federal government, and the most typical ones that we see are the “Romberg” test, where you're asked to close your eyes, tilt your head backwards, and estimate 30 seconds to yourself; the “finger to nose” test where you're asked to close your eyes and touch your fingertips to the tip of your nose with alternate hands; the “handclap” test where you're asked to clap down your palm to your backhand faster and faster without chopping the side of your hand onto your palm; as well as the “finger count” test where you're asked to go “1,2,3,4… 4,3,2,1… 1,2,3,4… 4,3,2,1” faster and faster. These are not certified by the federal government. So there's a particular controversy about to what extent they are reliable, however they are very commonly given by police officers at the side of the road, and used by prosecutors in judging whether somebody should be prosecuted, and considered by juries at jury trials as to whether somebody should be convicted of DUI.
Do I have the right to refuse a field sobriety test if I am stopped for a DUI?
You do have the right to refuse to take the field sobriety tests if you are pulled over for Driving Under the Influence. They are voluntary, and the police cannot make you do them. However, most people don't realize that. Very few people realize that the field sobriety tests are voluntary, and police rarely will tell you that they're voluntary; they'll simply tell you to do them. I advise people if you have been drinking and you do get pulled over not to take the field sobriety tests, because there's no reason to give the police further ammunition to use against you. Also they're very subjective, and they are poor indicators of impairment.
What are 'Miranda Rights' and how do they pertain to a DUI arrest?
Miranda Rights refer to your right to remain silent, your right to have an attorney present during questioning, and your right to have an attorney provided to you if you can't afford one. The Miranda Rights only have to be read to you after you've been arrested - that means they put the handcuffs on, put you in the car and take you away. If the police continue to interrogate you and continue to ask you questions designed to elicit an incriminating response. People call our office everyday saying, "I got arrested for DUI. They never read me my rights." The reason for that - ninety-nine percent of the time - is that the police questioned the person before the arrest, at the side of the road, before they put the handcuffs on, and before they took him away. There's no requirement that the Miranda Rights be read with regard to pre-arrest questioning, and that's how police get around it. On the other hand, if you were arrested, and after arrest, the police continue to question you without reading you your Miranda Rights, at that point anything that you said would be excluded from evidence and could not be used against you in court.
What is a 'preliminary breath test' or PBT and how is it used during a DUI arrest?
A preliminary breath test, also sometimes referred to as a preliminary alcohol screening test, is a handheld device that police take with them in their cars, and at the side of the road when they are doing a DUI investigation will ask the motorist to blow into, and this handheld device will provide a reading of the person's BAC. The handheld device is much less accurate than the breath test that would be taken at the police station and sometimes it is used in court only to show the presence of alcohol. Other times the reading can be used in court, but it is less accurate than the official breath test that is taken at the police station and it is designed to guide the police in determining whether or not to arrest the person on suspicion of drunk driving and then to ask them to take a further test.
Do I have the right to refuse a preliminary breath test if I am pulled over for DUI?
You do have the right to refuse a preliminary breath test. It is optional and oftentimes the police will fail to inform you that it's optional and simply say: "Here, blow in this", and the person doesn't know any better, and normally the person would refuse if they knew that they could. But they don't know. It is optional and I generally advise people if you have been drinking and you get pulled over, not to take the preliminary breath test, because more often than not it tends to hurt your case, and it is a much less reliable breath test than the one that you would take later at the police station. For those reasons I advise you to exercise your right not to take it.
How accurate is the preliminary breath test during a DUI arrest?
The preliminary breath test is thought to be fairly accurate but does not have the safeguards of the official breath test machine that would be used at the police station. Originally, these devices were only designed to measure the presence of alcohol or to give the police a very rough indicator of where the person's BAC might be. However, in recent years in many states they have become used much more as evidence of the person's particular BAC level in court. The readings on these machines which are recorded in a computerized component are provided in court and often used against the suspect, even though they are known to be much less reliable than the official breath test machines.
