Articles Posted in Sobriety Tests for BAC/ Implied Consent

Orange County, California law enforcement agencies and prosecutors are extremely aggressive when it comes to driving under the influence or DUI. One of the tools officers rely on is the Field Sobriety Test exercise. These tests are used as part of the officer’s investigation as well as the district attorney’s prosecution. However, FST are seriously flawed and unreliable.

An experienced DUI Defense Attorney will look closely at the police report and at the conduct of the investigating officers. Specifically, any misconduct or violation of rights must be taken into consideration. Further, if a field sobriety test was performed, and this is what the arrest was based on, it should be challenged due to the fact that field sobriety tests are subjective, basically the opinion of the officer performing the test. There are many factors, other than alcohol, that can effect the way a person performs on FSTs. Here is a list of such factors:

– weather
– poor lighting
– uneven surface conditions
– the distraction of traffic, lights and spectators
– the type of footwear being worn
– fatigue
– weight, age, physical condition and natural coordination
– nerves
– intimidation
– the officer’s instructions
– illness, and/or
– injury
Any or all of these factors can effect a person’s performance of an FST exercise. However, these tests are still considered reliable. An experienced DUI defense lawyer should still challenge the manner in which the tests were administered, the bias of the DUI officers and the fact there are a number of situations that can explain a person’s poor performance. Officers rarely, if at all, take the time to consider the factors listed above.

Anyone who has been arrested for DUI in Orange County, California, Driving Under the Influence or Drunk Driving, needs an attorney who is skilled and will gather the appropriate evidence, know how to use it intelligently and efficiently, and render the best possible outcome for their client.

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Before even getting pulled over for a DUI, the police officer is already observing your driving. If you are swerving in and out of lanes, speeding or driving too slow, those are obvious signs of intoxication. The officer will then pull you over and observe you and your behaviors. If you smell like alcohol, have bloodshot eyes or slur your speech, those are signs of intoxication as well. If the officer believes you may be intoxicated, he will ask you to get out of the car and participate in field sobriety tests.

Field Sobriety tests are tests given to alleged drunk drivers by officers to test driver sobriety. The National Highway Traffic Safety Administration has standardized three tests that should be given to all drivers suspected of being drunk. First, there is the horizontal gaze nystagmus (HGN). The officer puts a pen or something in front of your face and asks you to follow the object with just your eyes. Intoxicated people have a hard time doing this. Instead of smooth tracing of the eyes, the eyes will jerk and have a difficulty following the object.

Another field sobriety test is the walk and turn test which tests divided attention. In this test, the officer asks you to walk in a straight line with one foot following close behind the other. After taking about nine steps, you are asked to turn around using just one foot and walk the other way. Intoxicated people do not have balance and cannot follow these instructions.

The last standardized field sobriety test is the one leg stand that also tests divided attention. The suspect is asked to stand and one foot and count. An intoxicated person will not have good balance or will not count properly.

Officers may give other tests to test sobriety, most likely if the suspect cannot take the standardized field sobriety tests. Whether you live in Fullerton, Santa Ana or Mission Viejo, if you are pulled over for a DUI, you need an experienced DUI attorney to assist you.

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Should I do the Field Sobriety Tests? The short answer: Unless you haven’t had a single drink, this is probably a very bad idea.

If you have been drinking and the police pull you over, it is my suggestion to be smart and refuse to incriminate yourself. Exit from your vehicle only if the police orders you to get out of your car. And if the police officer asks you to perform the field sobriety tests, politely refuse. By law, you do not have an obligation to perform field sobriety tests, and the refusal to perform these so-called tests is inadmissible against you in California courts.

In addtion, there isn’t a penalty imposed upon you for refusing to attempt these discredited “tests”- sometimes called “Standardized Field Sobriety Tests” or “Roadside Exercises.” The “tests” are very difficult to pass, especially since you are required to perform them under the watchful eye of the officer with the power to arrest you. In many cases, the officer has already made up his mind to arrest you. He wants you to attempt these “tests” so that when you are charged with DUI, he can present more evidence to the jury of your alleged impairment. Almost always, no matter how well you may believe that you performed on these “tests,” the officer will likely testify that you failed the “tests” miserably. So my position is why help the officer build his case against you?

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If I’m pulled over for DUI in Orange County should I submit to the roadside breathalyzer test? The short answer is no, there is virtually never a good reason to submit to a voluntary breathalyzer at the side of the road. Think if it this way, each drink you consume will increase your blood alcohol content by approximately .025 and it takes about one hour for your body to metabolize approximately .025 worth of alcohol. So, if you consume only one average drink per hour for four hours, your blood alcohol should get no higher than approximately .025- which is well below the California legal limit of .08. The Drink Wheel found here explains this concept in more detail.
Of course, if you have consumed no more than four drinks over the course of four hours, you might pass the breathalyzer, but you might not. So why take it?
Giving a voluntary roadside breath sample (which is different than the in-station sample they may ask for later) only lets the police lock you into a pattern or profile and gives them more ways to build reasonable suspicion to arrest you for DUI. There is no penalty for not voluntarily giving a sample. After you are arrested, police are going to ask you to give a breath or blood sample at the police station anyway- but police can only ask for these in-station tests if they have reasonable suspicion that you were DUI.
One way defense attorney’s challenge the in-station breath results to claim that there wasn’t reasonable suspicion that the driver was DUI and that the breath results should be suppressed because the police didn’t have grounds to ask for the test in the first place. If you voluntarily submitted to the roadside tests and your BAC was over a .08, it would be pretty hard to make this argument since the voluntary test tells everyone that you were over the legal limit.
Remember though, the voluntary roadside breathalyzer is different than the in-station test. If you refuse to submit to the in-station breathalyzer, the Department of Motor Vehicles penalizes you by automatically suspending your license for one year. And if you fail the breathalyzer, the Department suspends your license for 180 days. But, if you “pass” the breathalyzer with a .07 or lower, the Department will not suspend your license.

In short, never submit to a breath test at the side of the road.

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