Field Sobriety Testing in Oakland DUI Cases
Youāre out a little late and youāve had a few drinks. Youāre stopped by a police officer and told to get out of the car to do āField Sobriety Testsā (FSTās.) Donāt panic, but take it seriously.
However, as an Oakland DUI lawyer can explain, itās likely the officerās already done one test. Theyāve asked you to follow an object with your eyes, a test called āhorizontal gaze nystagmus.ā This test can indicate the presence of alcohol. Your eyes can lag behind a moving object, then jerk quickly to catch up. That jerking is called ānystagmus.ā The test is imprecise, and, as with all FSTās, itās just one factor among many to determine whether someone is impaired.
When The Field Sobriety Test Starts
Thereās even more to the situation before you get out of the car. In fact, many people think the most important evidence has already been taken. How was your driving? Old school lawyers know that itās hard for the DA to win a borderline case unless the personās driving was pretty bad.
After youāre stopped, the officer is noticing many things. How alert do you seem to be? How are you moving? Are you taking a long time to find your license and registration? How does your breath smell? Actually, ethanol āpure alcoholāhas no smell. However, when itās mixed with the other things in alcoholic drinks, the smell can linger on your breath for a long time. The officer canāt tell how much youāve had to drink or when you drank from your breath. But the officer is putting together a picture.
Types of Tests
Once youāre out of the car, the physical tests begin. People often ask, ādo I have to do those tests?ā Legally, you do not. There is no legal penalty for not doing them. However, if you refuse to do them, they can say you knew you were intoxicated and were afraid the tests would show it. Meanwhile, the officer is noticing how youāre standing, speaking, reacting to instructions. All of those things will be noted in the report. If you have any problems with the tests, the officer almost surely arrest you to get a blood or breath test.
Some people think of the Steve Martin movie āThe Man With Two Brains,ā where the roadside tests get harder and harder as the officer tries to come up with something heāll surely not be able to do. It may seem that way to you, but itās a little more scientific than that. The National Highway Traffic Safety Administration (NHTSA) has approved a three-test ābatteryā of āStandardized Field Sobriety Tests.ā They are called āstandardizedā because they are based on research in which people were given known quantities of alcohol, and were given the same set of tests in the same ways. From these studies, NHTSA approved what they believe to be three tests ā the walk and turn, the modified position of attention, and nystagmus ā which they believe are the best indicators of whether a person has achieved a .10% blood alcohol concentration (B.A.C.). Still, the tests canāt be used to say what your B.A.C. actually is, only that they are āconsistentā with being under the influence.
The field sobriety tests are subjective. Part of your performance, which nobody tells you, is how you follow the directions. Did you have to ask questions? Did you need them to be demonstrated more than once? How did you behave during the explanation?
Elements of Sobriety Testing
The tests are broken down into elements: The Walk and Turn: Nine steps forward, ten steps back, heel to toe, pivot ālike a basketball player.ā The Modified Position of Attention: Hands at your side, eyes closed, donāt sway, estimate 30 seconds. Any little mistake will be recorded, so good lawyers donāt let that bother them. They concentrate on the big picture. How did this person really seem overall? Most importantāhow were they driving?
They claim to take into account if you are dealing with a physical injury, the kind of surface youāre on, whether you are sick with the flu or a cold. The most important thing is that they are called ādivided attention tasksā which is supposed to simulate the same challenges of drivingādoing more than one thing at a time. When you drive, you have to watch the road, mind your speed, pay attention to other drivers, sense the terrain conditions, anticipate things, signal your intentions, all at the same time. The theory is that alcohol in sufficient quantities impairs that divided ability, and can be shown by failing the FSTās.
Breath Testing
The last sobriety test is probably the most important. They have a hand-held breath test machine called a āPreliminary Alcohol Screeningā device (P.A.S.) It is not the āofficialā test, which will be done at the station, but it does allow them to see and state a number. You are not required to take it, and there is a debate on whether you should. Remember, the point of all of the FSTās is for the officer to decide whether to arrest you. The real bottom line is that if they think youāve been drinking much at all, theyāre going to arrest you and get an āofficialā breath or blood test.