Why you should always refuse the Breathalyzer and the Standardized Field Sobriety Tests

Don't do it! As a defense attorney and DUI practitioner, I get asked a lot of questions by my clients, friends, and fellow attorneys. But no question is more common than, "should I refuse the breathalyzer and/or the field sobriety tests (FSTs)?"

Like most legal questions, this one is not easy to answer, either. Any attorney worth his salt will tell you to refuse both. But, States have a mechanism in place to "encourage" you to agree to blow into the machine, which we will discuss.

This blog post is devoted to explaining why it is beneficial for you and your case to politely refuse the police officer's request to blow into the machine (both portable and the one at the station) as well as to refuse the standardized FSTs.

In an ideal world, you would refuse both the breathalyzer and FSTs, and the government would have no case against you (except for the officer's testimony). However, last time I checked, we do not live in a Utopia. Therefore, we must deal with the facts.

If you have consumed alcohol, the officer will be alerted to your red, watery, and bloodshot eyes, smell of alcohol, and slurred speech. This gives him reasonable suspicion that a crime has been committed which opens the door to further investigation, but not probable cause to arrest...
This is where the police officer will request that you complete FSTs, and/or administer his Portable Breathalyzer Test (PBT). He has authority to give you the breath test per KRS 189A.103(3). You are to refuse both! I cannot emphasize this enough.But, what if you don't know this important piece of advice, and submit to them (like many people do on a day-to-day basis)? 

Let's see what happens.

Well, first, if you have indeed recently been drinking, and are possibly close to or over that magic 0.08 figure, and you blow into the PBT, you've just given the police officer the probable cause he needs to arrest you! He doesn't need anything else -- even if you refuse the FSTs, he now has the lawful right to arrest you right on the spot.

Furthermore, the FSTs, even though the National Highway Traffic and Safety Administration (NHTSA) claims that they are tests of "divided attention" (just like when you're driving you have to be able to steer, and change gears if its a manual, while paying attention to your surroundings), ask yourself the following question: how many years have you been driving? Now compare that experience to how many times you've done FSTs. Chances are you've never done them. Ever. How is that fair? Well, according to our government, it is. And if you refuse to complete them, the police officer cannot use it against you in court (but he will do everything in his power to find cause to arrest you -- because, if you were sober, why would you refuse such "simple" tests?)

The tests are designed to fail you. That is the reality of it. Don't let anyone fool you otherwise.

Now you're at the station. Let's say you've submitted to the PBT, and blew over a 0.08, but refused the FSTs. You are now confronted with the Intoxilyzer machine. Kentucky, like most jurisdictions, has an implied consent statute in place. That means that by virtue of the Commonwealth issuing you an operator's license and permitting you to drive your vehicle of choice on Kentucky's roads you have "impliedly consented" to a test of your blood, breath, or urine (KRS 189A.103(1)). Note: this statute applies even if you are dead or unconscious (KRS 189A.103(2)).

Now, you have two options: One, submit to the test and risk the result, or two, refuse to blow. If you submit to the Intoxilyzer, and blow over a 0.08 you've just given the Commonwealth two avenues of prosecution against you:

1) KRS 189A.010(1)(a) - the per se DUI (Intoxilyzer result over 0.08); and
2) KRS 189A.010(1)(b) - the opinion DUI (police officer's testimony).

Had you refused the machine altogether, the Commonwealth can only pursue you for the opinion DUI.

But there's a small catch. 

Did I say small catch?

Some would say it's a pretty big one.

Per KRS 189A.105(2)(a)(1), if you refuse to submit to the blood, breath, or urine tests, the effects are as follows:

1) the refusal may be used against you in court as evidence of violating KRS 189A.010 (the DUI statute); 
2) your driver's license will be suspended until the resolution of your case; 
3) if you refuse the tests and are subsequently convicted of DUI, you will be subjected to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if you submit to the tests (which is 4 days instead of 2 for a first offense); and 
4) you will be unable to obtain a hardship license after the 30 day mandatory suspension period elapses (for first offense DUI).

Pretty harsh, huh?

As you can see, the Commonwealth has done everything in its power to scare you into taking a blood, breath, or urine tests. Nevertheless, despite these seemingly harsh consequences of refusal, it is still beneficial for you to refuse! It is harder to disprove a negative when the prosecution has the number that works against you, because people like to believe technology works properly. It is much easier to discredit a police officer on cross examination than to prove the a machine was faulty.

But aren't you forgetting something? What about the PBT, Mr. DUI Guy?

I'm glad you asked.

The PBT is inadmissible in Court. Per KRS 189A.104, no other breathalyzer machine except the one that is "installed, tested, and maintained by the Commonwealth ... at a police station or detention facility" is admissible in a court proceeding. So the PBT result must be excluded. A 2008 Kentucky Court of Appeals case explicitly stated that, "the pass/fail result of a PBT is admissible for the limited purpose of establishing probable cause for an arrest at a hearing on a motion to suppress." Greene v. Commonwealth, 244 S.W.3d 128 (Ky. Ct. App. 2008) (emphasis added). The prosecution cannot introduce the PBT result to the jury, and it is reversible error to do so.

If you refuse to do the FSTs and PBT roadside, your chances of getting arrested may not change. Even if you do get arrested, and continue to refuse to cooperate with any of the officer's requests to complete a breath, blood, or urine test as well as the FSTs, your Kentucky operator's license will be suspended while your case is pending (KRS 189A.107(1)). However! You've just significantly increased your chances of beating your DUI because the Commonwealth cannot pursue your case under the "per se" part of the DUI statute, namely the 0.08, and must rely on the opinion DUI -- which is based 100% on the police officer's testimony as to his observations and impressions of you, which is easier for an experienced DUI practitioner to attack and discredit on cross examination.

Thanks for reading, old friend.

Hope to see you again soon.

If you require assistance with a DUI, expungement, traffic ticket, or other criminal charges, please contact me or call me at (270) 945-2778.

The DUI Guy

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What Makes "Standardized Field Sobriety Tests" Standardized?

Throughout the course of this series we've discussed the differences between the FSTs (field sobriety tests) and SFSTs (standardized field sobriety tests). The three SFSTs are the horizontal gaze nystagmus, the walk and turn, and the one leg stand tests. The SFSTs have a level of validity other FSTs do not. "Standardized test" is defined by Wikipedia as "a test that is administered and scored in a consistent, or 'standard', manner." Clearly the goal is consistent and standard administration and evaluation in order to avoid bias and subjective determinations of impairment. The Standardized Field Sobriety Tests, touted by the National Highway Safety and Transportation Administration (NHTSA) and the International Association of the Chiefs of Police (IACP), are good but have their flaws. In this segment, we will look at the studies that make the SFSTs "standardized."

The cornerstone of the standardization is an objective, scientific level of credibility. In order to come into evidence, to be considered in a court of law, it must meet the Kelly-Frye Standard. The Kelly-Frye standard is from Frye v. United States (1923) 293 F.1013, and was adopted by the California Supreme Court in People v. Kelly (1976) 17 Cal.3d 24. The Kelly-Frye standard states that test results entered into evidence must be generally accepted within the relevant portions of the scientific community, and exclude from evidence any test results from scientifically unproven methods. Standardization, and the repeatable results that come with peer reviewed studies, is therefore very important for the credibility, acceptability, and getting the SFST results into evidence.

The SFSTs have peer reviewed studies- as a matter of fact they have three. The three studies are from 1995, 1997 and 1998. The 1995 test was completed out of Colorado, the 1997 test out of Florida, and the 1998 out of our own San Diego. Each one of the studies have a question to answer. Anyone familiar with scientific studies (or politics) also know that studies tend to answer said question in the direction the creator wishes it to. These studies are no different.

In 1995 the Colorado study was intended to answer the question, do experienced officers utilizing the walk and turn, horizontal gaze nystagmus, and one leg stand, in a laboratory and field setting, make correct arrest decisions? The study found that officers using the full battery of three tests made the correct arrest decision 93% of the time.

In 1997, the Florida study was to answer the question, are SFSTs valid and reliable indices for the presence of alcohol when used under present day traffic and law enforcement conditions? The Florida study, not surprisingly, found that the SFST full battery test is the only scientifically validated and reliable method for discriminating between impaired and unimpaired drivers. None of the other field sobriety tests (the handpat, fingercount, romberg, etc.) worked on the same level as the SFSTs. The correct arrest decision was made 95% of the time when all three tests were utilized.

Lastly, the 1998 San Diego study was to exam the new, nationwide blood alcohol content of .08% BAC - dropped from .10%. The question being, could the SFSTs discriminate at BACs less than .10%? The study found the three SFSTs could differentiate, and officers made the correct arrest decision 91% of the time. Interestingly, the study also found that three tests could differentiate to .04% and above.

The San Diego study was the first one to be exclusively a field study- not involving any laboratory testing. However, one of the problems with the study is that it involved experienced officers. It is not known what are the average years of service of the officers that took part in the study, nor what percentage of an average police force have the same level of experience as the officers that took part in the study. A more realistic look at the SFSTs would have examined all officer's arrest decisions, as opposed to just "experienced officers."

An examination of the studies shows that there is an internal bias, and there is room for subjective evaluation. Those will be discussed with each individual SFST, and each test will have their separate blog entry. It is important to note that NHTSA either fully or partially paid for all of the studies.

As a SFST instructor, I know the benefits and detriments of each one of these tests intimately. If done properly, they can be very accurate. However, it is the administration of these tests that are their great downfall in the average DUI arrest scenario. Invariably, officers deliver an abbreviated, or inaccurate SFST battery that leads to biased results. And it is only an experienced, properly trained attorney that can tell the difference. Please contact me here if you wish to have your DUI case evaluated.

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