FIELD SOBRIETY TESTS

The best description of the field sobriety tests are that they are designed to be failed.  The tests involve exercises such as touching your nose and standing on one foot.  This may seem easy.  But most of these tests check carefully controlled movements (fine motor skills).  These exercises are very difficult to perform in a high stress situation such as being on the side of the road with a police officer.

Most people are nervous and are unable to perform to their normal abilities.  The officer – who has rehearsed these tests many times – will generally demonstrate to the judge or jury.   It is important to make the judge or jury understand these difficulties as well as other problems like passing traffic and the conditions of the road shoulder.  People often forget that the tests are given on the side of the road (often on an uneven surface) while cars fly by at full speed.

Several factors other than alcohol affect the ability to do these tests.  Most DUI/DWI stops are done late at night when the motorist has been awake for 12 or more hours.  Issues such as eye irritation can prevent an ideal performance.  The type of clothing or footwear can restrict range of motion and cause a failing result.

There is a real issue as to the accuracy of the various field sobriety tests.  Under ideal conditions (i.e. a well lit, level room), a signigant percentage of people will fail the tests.  Given real world conditions, it has been suggested that 40-50% of completely sober people cannot perform the tests to expected standards.

These tests are highly subjective.  There is generally no camera in the patrol car and no record of how well the person actually does.  Only the word (and notes) of the officer is there to attest to the performance.  Also, although these are “standard” tests, what counts as a failing score varies from officer to officer and state to state.

A last word – these “standard” tests are not as standard as you may think.   The tests sometimes vary locally both in the types and the way they are administered.  Most law enforcement agencies will use  NHTSA (the National Highway Traffic and Safety Administration) approved tests. 

It is not too uncommon to have local agencies giving outdated and discredited tests that just can’t pass muster.  The classic examples of this include tests that involve reciting the alphabet backwards or singing the Star Spangled Banner.  A few states during the 80's actually asked people to play hand held video games to test motor skills.   Pac-Man anyone?

BLOOD ALCOHOL TESTS (BAC)

Should I take the test?  This is the question asked most in connection to breath and blood tests.  The answer is not easy.  A refusal to take the test will likely result in the loss of your driver’s licence.  But taking the test may mean a similar penalty and a more likely conviction if you score above the legal limit.

Many attorneys advise that you should only take the tests if you believe you can actually pass – that is score below the limit.  Making such a guess is hard.  Weight, drinking experience, gender, and a variety of other factors directly influence your probable blood alcohol level (BAC).  Two drinks may have little impact on a large man but a young woman or someone with a low body weight could be above the line.

BREATH TEST

The most common blood alcohol test is the breath test.  With this type of machine, the subject blows into a tube and the device produces a reading showing alcohol content in the person’s blood.  There are several varieties of machines.  By far the most popular is the Intoxilizer 5000 (although the manufacturer’s latest model is the Intoxalizer 8000).

The accuracy of these machines is questionable.  The state of Florida recently threw out a conviction based on a breath machine because the manufacturer failed to demonstrate its reliability.  Most states have a specialized law that makes the reading admissible regardless of actual reliability.

There are several ways to attack the BAC read.  The manuals for all these machines have a strict criteria that must be followed before a person should take the test.  Small factors such as oral piercings (tongue rings, etc.) and fillings can sometimes affect the reading.  The machines are required to be calibrated (tested and adjusted) frequently and sometimes are not.  That the right protocol was followed is a showing the prosecutor must make or the BAC reading should be thrown out.

BLOOD TESTS

Many states require that blood tests must be given when requested or following serious accidents.  These tests involve the drawing of a small amount of blood (hopefully) by a nurse or medically trained officer.  Blood tests tend to be more accurate than breath and have the advantage of being subject to some verification: the test does not use the entire sample so you can have a lab of your choosing check the results.

Some states – only a few – require blood tests upon request.  If you think you can pass, these are more accurate and are generally recommended over the breath test in which the test results cannot be double checked.

BLOOD ALCOHOL TESTS (BAC)  – SPECIAL CONSIDERATIONS

The general advice, as offered on the companion BAC page, is to refuse the blood or field sobriety test unless you are sure to pass.  But there are sometimes penalties for a refusal such as an extended time your licence may be suspended.

Most times this is outweighed by the fact that many states (such as Louisiana)  have enhanced (greater) penalties for higher blood alcohol reads.  This means if you score over a secondary limit – often around 0.150 – there may be mandatory jail time.

Another very good reason to refuse the breath test has to do with an extended drivers licence suspension.  Some states will push out the “mandatory” suspension period for a longer time if your reading is over a set amount (often 0.20).

Occasionally, certain “tough on crime” judges will impose a special penalty if you do not blow such as the threat of jail time.  But, when in doubt, you are better off in most circumstances if you only take the tests when you know that you can pass.