You’re out a little late and you’ve had a few drinks. You’re stopped by a police officer and told to get out of the car to do “Field Sobriety Tests” (FST’s.) Don’t panic, but take it seriously.
However, as an Oakland DUI lawyer can explain, it’s likely the officer’s already done one test. They’ve asked you to follow an object with your eyes, a test called “horizontal gaze nystagmus.” 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 “nystagmus.” The test is imprecise, and, as with all FST’s, it’s just one factor among many to determine whether someone is impaired.
There’s 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 it’s hard for the DA to win a borderline case unless the person’s driving was pretty bad.
After you’re 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 —pure alcohol—has no smell. However, when it’s mixed with the other things in alcoholic drinks, the smell can linger on your breath for a long time. The officer can’t tell how much you’ve had to drink or when you drank from your breath. But the officer is putting together a picture.
Once you’re out of the car, the physical tests begin. People often ask, “do I have to do those tests?” 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 you’re 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 “The Man With Two Brains,” where the roadside tests get harder and harder as the officer tries to come up with something he’ll surely not be able to do. It may seem that way to you, but it’s a little more scientific than that. The National Highway Traffic Safety Administration (NHTSA) has approved a three-test “battery” of “Standardized Field Sobriety Tests.” They are called “standardized” 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 – the walk and turn, the modified position of attention, and nystagmus – which they believe are the best indicators of whether a person has achieved a .10% blood alcohol concentration (B.A.C.). Still, the tests can’t be used to say what your B.A.C. actually is, only that they are “consistent” 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?
The tests are broken down into elements: The Walk and Turn: Nine steps forward, ten steps back, heel to toe, pivot “like a basketball player.” The Modified Position of Attention: Hands at your side, eyes closed, don’t sway, estimate 30 seconds. Any little mistake will be recorded, so good lawyers don’t let that bother them. They concentrate on the big picture. How did this person really seem overall? Most important—how were they driving?
They claim to take into account if you are dealing with a physical injury, the kind of surface you’re on, whether you are sick with the flu or a cold. The most important thing is that they are called “divided attention tasks” which is supposed to simulate the same challenges of driving—doing 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 FST’s.
The last sobriety test is probably the most important. They have a hand-held breath test machine called a “Preliminary Alcohol Screening” device (P.A.S.) It is not the “official” 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 FST’s is for the officer to decide whether to arrest you. The real bottom line is that if they think you’ve been drinking much at all, they’re going to arrest you and get an “official” breath or blood test.
The Nieves Law Firm is dedicated to providing aggressive criminal defense representation to working professionals who have found themselves in trouble with the law. We show up to win, and we’re not afraid to fight aggressively to accomplish our client’s goals.
We understand that being accused of a crime can be a scary and confusing experience. That’s why we take the stress off our clients by handling the full scope of their legal situation from the initial consultation to the final outcome. Our bilingual attorneys and staff are here to ensure that our clients feel heard and understood every step of the way.
As one of the largest criminal defense teams in Oakland and the Greater Bay Area, we have the resources and experience to handle even the most complex cases. Our experienced team examines various aspects of your case and, perhaps most importantly, we genuinely care about our clients and their future. We take the time to learn about their goals and priorities so that we can achieve an outcome that allows them to move past their mistakes and focus on the future they want. When you work with us, you become part of our team.
Our skilled criminal defense attorneys have experience handling a wide range of criminal cases. With a deep understanding of the legal system and a track record of successful cases, our lawyers are committed to achieving the best possible outcome in your case.
When facing a criminal charge, having dedicated and experienced attorneys on your side is critical. At The Nieves Law Firm, we understand the gravity of your situation, and our criminal defense attorneys provide unwavering support and legal guidance.
From the moment you reach out to us, we prioritize your well-being and legal interests. Our criminal lawyers are with you every step of the way, from arrest to hearings and beyond, to ensure that your rights are protected. Whether you’re facing charges related to DUI, drug offenses, assault, sex crimes or any other allegation, we have the knowledge and courtroom experience to fight vigorously on your behalf.
We believe in the power of collaboration and will actively involve you in the decision-making process, ensuring you are well-informed and empowered to make the best choices for your defense. Our goal is not only to navigate the legal complexities but also to provide you with the peace of mind and reassurance you deserve during this challenging time.
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Case Dismissed after Completion of Drug Court
All Charges Dismissed and Property Ordered to be Returned to Client
Deferred Entry of Judgment
Case Dismissed without Trial
Motion to Vacate Granted
Restraining Order Denied and Sealed
Both Cases Dismissed Prior to Trial
No Charges Filed
No Criminal Charges Filed & Detention
No Jail Time & No Sex Offender Registration
Pled to 1 Petty Misdemeanor and Not Required to Register as Sex Offender
The Nieves Law firm was a great choice in helping me through my restraining order case, the whole team there does a great job at walking you through the steps of the legal process. Jose is a great lawyer and is good at what he does, in court he really shines and is able to debate the case very well and professionally. I would definitely pick them again if I had to!
Thank you to my attorney Grace for all your help with my case. It took awhile but the outcome has made me so happy that I am able to move forward with my life and forget the past. Everyone at this law firm from the beginning to the end have been so helpful and supportive. I highly recommend The Nieves Law Firm!
The Nieves Law Firm is absolutely amazing. The best customer services experience I have had, great communication, astonishing experience, and overall a team of professionals that dedicate themselves to ensuring the best result. I am really happy to have worked with this team. Jimarielle was very helpful and provided me the comfort and understanding in every way possible. Highly recommend.
Thank you to the whole Nieves legal team, especially to my attorney, Mari Bowie, for being so supportive, helpful, and professional to me and my family in these hard times in my life. I highly recommend them to anyone looking for a law firm that actually looks at you as a human-being first and cares about your well-being. I appreciate all the support they’ve given and will go to them again if I ever need to down the road.
The Nieves Law Firm has an outstanding team of attorneys who are supportive and provide exceptional Client service. The founding attorney Jo-Anna, firmly stands on her mission and is backed by a team with expertise. You can trust you’ll be in good hands and that their team will give their absolute best to help you. If you’re looking for a criminal defense attorney look no further they are knowledgeable and honestly the best to work with!