Providing Information at a Tennessee DUI Roadblock or Sobriety Checkpoint

Image courtesy of Naypong at FreeDigitalPhotos.net

At a typical sobriety checkpoint trying to identify drivers under the influence of alcohol and/or drugs, motorists are forced to stop their vehicle, roll down their window, and usually provide certain documentation to an officer.  The documentation generally includes a valid driver’s license, proof of registration and proof of financial responsibility (liability insurance). While the driver is gathering these documents, the officer may also ask questions about what the driver may or may not have been doing before reaching the checkpoint. The purpose of these questions is to assist the officer in identifying those driving while intoxicated (DWI).

Florida lawyer Warren Redlich disagrees with motorists being forced to roll down their window and verbally communicate with an officer at a sobriety checkpoint. In order to avoid

forced communication with an officer at a checkpoint, Mr. Redlich has developed state specific signs or placards intended to replace the responsibility of the motorist to roll the window down and answer questions. Some of the words in bold on these signs include “I remain silent,” “No Searches,” and “I want my lawyer.” Mr. Redlich’s opinion is that a motorist should not be forced to answer questions at a checkpoint.

Instead, Mr. Redlich believes it is sufficient to simply place the previously mentioned sign against the car window where it can easily be read. Anticipating being asked for one’s driver’s license, registration and insurance proof, Mr. Redlich suggests placing these items in a plastic bag and hang it from the driver’s window.

Peter Gerstenzang, a lawyer practicing in New York, thinks that using these signs “…[I]s really dumb.” See: http://news10.com/2015/02/11/fla-lawyer-dwi-checkpoint-signs-spark-controversy/. He suggests if the motorist has nothing to hide then the motorist has no reason to use the sign at a sobriety checkpoint.

Steven Oberman, a lawyer practicing in Tennessee, echoes the thoughts of his colleague, Mr. Gerstenzang. If a motorist finds him/herself at a checkpoint (a common occurrence throughout Tennessee), the motorist should simply provide any requested documentation.

If the officer asks about conduct that may incriminate the driver or if the motorist is uncomfortable answering a question, he/she should politely decline to answer the question. The motorist should advise the officer that they feel they are being accused of a crime they didn’t commit and advise the officer that they prefer that any personal questions only be answered in the presence of their lawyer. The motorist should then ask if they are free to leave (this may later assist the motorist in defending any charge that may be brought against the motorist).

Following the advice of Mr. Redlich would, in the opinion of this author, only make it more likely that the investigating officer would find a reason to arrest the driver for DUI, a related driving offense, or perhaps even for “Obstruction of Law Enforcement” as prohibited by Tennessee Code Annotated § 39-16-602. As with other matters of importance, it is suggested to use your common sense rather than trying to take the advice of someone unfamiliar with the facts of your specific situation. It is always best to rely on the legal advice of a lawyer licensed in your state and familiar with the laws applicable to your case.

About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,000 DUI defendants.  Among the many honors bestowed upon him, Steve served as Dean of the National College for DUI Defense, Inc. and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee.  Steve was the first lawyer in Tennessee to be certified as a DUI Defense Specialist by the Tennessee Commission on Continuing Legal Education and Specialization and the NCDD.

He is the author of DUI: The Crimes & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 7th edition (Wolters Kluwer/Aspen).  Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions.  He is a popular international speaker, having spoken at legal seminars in 23 states, the District of Columbia and three foreign countries.

You may contact Steve through his website at www.tndui.com or by telephone at (865) 249-7200.

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More Georgians refusing sobriety tests

By Jessica Towne

The number of people refusing the sobriety test in Georgia doubled, from 5,608 in 2008 to 11,480 in 2013.

The Georgia Health News service recently published an article that manged to turn this fact into the basis for calling for more DUI convictions. You see, the State of Georgia collects lots of tax money to fund various projects when someone is convicted of DUI. And MADD wants us to believe that DUI convictions are down because drivers are taking advantage of the legal system, when in fact, some drivers are exercising their constitutional and statutorily granted rights. MADD and Georgia prosecutors  think the conviction rate is down because more drivers are exercising their right to refuse a breath or blood test.

Perhaps more drivers are aware that they don't have to take field sobriety tests alongside the road when they're asked to step out of their cars those tests are voluntary. Most times, the evidence a driver "volunteers" is what gets one arrested, breath test or no breath test. 

I think the rest of the statistics in that article leave a lot of unanswered questions:

How many people were arrested for DUI in 2008, and how many in 2013?Of those arrested, how many were found to be unlawfully stopped?Of those arrested, how many were found to be unlawfully arrested?Of those arrested, how many were found not guilty after trial?

I understand that drunk drivers account for some accidents resulting in injuries and deaths on Georgia highways. But most DUI arrests do not involve crashes.  MADD and the other agencies that lobby legislative bodies should answer these questions before they decide that more and more of us ought to be convicted of DUI. Have they even considered that perhaps drivers are getting the message?  Maybe we simply don't drink and drive as much we used to. Did that statistical analysis consider that we instead call cabs, we designate drivers who stay sober, we use Uber and Lyft, and we don't let our friends drink and drive?

Statisticians, I'm all ears. 

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Reciting the Alphabet Backwards as a Field Sobriety Test

People ask me about field sobriety tests all of the time and one of the most common questions I get is, “Will the officer really make me recite the alphabet backwards?” The answer is that they can, but they probably won’t.

The field sobriety tests that are usually used by law enforcement during a DUI stop are endorsed by the National Traffic Safety Administration (NHTSA). These tests are standardized and include the horizontal gaze nystagmus test, the walk-and-turn test, and the stand on one leg test. Any other field sobriety test, including the backwards alphabet recital, is not supported by research and does not meet the requirements for standardization.

But just because the backwards alphabet recital test is not endorsed by the NHTSA, doesn’t mean that law enforcement can’t use it.

If the alphabet is used at all as a field sobriety test, the DUI suspect is usually asked to recite it forward without singing. A DUI suspect may also be asked to recite the alphabet forward, sometimes with their eyes closed. The officer will then look for the presence of impairment indicators. These indicators include the following: Whether the DUI suspect improperly states the alphabet, whether the DUI suspect sways, opens their eyes, or needs to use his or her arms for balance.

Since the alphabet test is not endorsed by the NHTSA, there are no set guidelines for which an officer can administer it. Some officers may have a DUI suspect begin reciting the alphabet beginning on an arbitrary letter such as “J.” Other officers may have the DUI suspect stop at an arbitrary letter. And some may have the DUI suspect say the alphabet backwards!

In my practice, I have yet to see an officer request any of my clients to recite the alphabet either backwards or forward. And it’s a good thing too. I would’ve fought tooth and nail to get it thrown out as a completely unreliable indicator of intoxication.

As many of the people whom I’ve spoken with about field sobriety tests are quick to point out, most of us couldn’t even recite the alphabet backwards even if we’re sober.

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Can you Turn Away from a Sobriety Checkpoint?

Sobriety checkpoints have been held to be an exception to the rule that law enforcement officers need probable cause to stop and, even if brief, detain a motorist in order for the detention to be constitutional.

Normally, police obtain that probable cause through witnessing a traffic violation, witnessing driving which would indicate drunk driving, or receiving an anonymous tip that a person may be driving drunk. Only then can law enforcement stop and detain a person.

Although officers at sobriety checkpoints do not have the probable cause usually required to stop a motorist, both the United States Supreme Court and the California Supreme Court have held that checkpoints are constitutional.

In Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop.

Three years before the decision in Michigan Department of State Police v. Sitz, the California Supreme Court in 1987 decided the case of Ingersoll v. Palmer and set forth guidelines to ensure the constitutionality of checkpoints in California. Those guidelines are as follows:

1.       The decision to conduct checkpoint must be at the supervisory level.

2.       There must be limits on the discretion of field officers.

3.       Checkpoints must be maintained safely for both the officers and the motorists.

4.       Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.

5.       The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.

6.       The checkpoint must show indicia of official nature of the roadblock.

7.       Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.

8.       Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.

Without this last consideration, motorists would not know that there was an upcoming checkpoint to turn away from. However, because checkpoints are highly visible, motorists have the ability to turn away before reaching the checkpoint.

There are no laws that require you to drive through a checkpoint. Therefore it is perfectly legal to turn away from a checkpoint. But if you do turn away from a checkpoint, be sure that you do not break any traffic laws in the process like, say, an illegal U-turn.

Remember that an officer needs probable cause to stop and detain a motorist. By committing a traffic violation in their presence, they’ll have the probable cause to stop a motorist, not for suspicion of driving under the influence, but for the violation itself. However, once the officer has the motorist pulled over for whatever violation, you can bet that the officer  will “observe the objective symptoms of intoxication” whether they’re present or not.

This entry was posted on Monday, February 2nd, 2015 at 11:11 pm and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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How to Get Through a Sobriety Checkpoint?

So you’re driving along the highway one evening, minding your own business, and suddenly looming up in front of you is a DUI sobriety checkpoint…

No problem!  You just pull a small printed sign out of your glove compartment and hold it up to the unopened car window for the cop to read.  He reads it through the glass with his flashlight, a quizzical look on his face…and then reluctantly waves you through the checkpoint.

Fantasy?  Watch this YouTube video of a DUI sobriety checkpoint in Florida, in which the driver held such a note up to the window for the cop to read.  The note stated (with Florida state statutes cited):  

I REMAIN SILENT

NO SEARCHES

I WANT MY LAWYER

Please put any tickets under windshield washer.

I am not required to sign – 318.4(2).

I am not required to hand you my license – 322.15.

Thus I am not opening my window.

I will comply with clearly stated lawful orders.

It worked, and the driver got through the checkpoint without opening his window — and possibly having the cop claim that his speech was slurred or that he had alcohol on his breath.  But a word of warning: it may not work for you in your state.  Your laws may be different….and cops generally don’t take well to having their authority challenged.

This entry was posted on Wednesday, January 7th, 2015 at 9:21 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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Field sobriety tests could impact you this weekend

A few weeks ago, we talked about the implied consent law here in Minnesota. Basically what this law means is that if you are legally arrested for driving under the influence, you must give a blood, breath or urine test. You do not have a right to refuse this. We bring this up because with the Labor Day weekend upon us, there will be plenty of people who are dealing with law enforcement over the weekend, and they need to know their rights.

Since Aug. 13, the police have been performing a massive crack down of drunk driving. You have probably seen ads or announcements for the "Drive Sober or Get Pulled Over" campaign during this time, and even leading up to this period of enforcement.

But this weekend, things will get serious as the Labor Day weekend is considered one of the most dangerous driving weekends of the year. Many people are traveling for vacation, and many people are enjoying a few drinks during this time. You shouldn't combine those two activities, but if you do, you still have rights.

Beyond the implied consent law, remember that you may be asked to perform a field sobriety test, may it be at a checkpoint or after a traffic stop. These field sobriety tests have come under scrutiny recently, as they involve the suspected person performing tasks that no person would ever perform, whether they are sober or not. Therefore, they are unlikely to fulfill or complete these tasks simply because they are foreign to them -- not necessarily because they are intoxicated.

Source: TSM, "Drive Sober or Get Pulled Over, Drunk Driving National Enforcement Crackdown, August 13 - September 1, 2014," Accessed Aug. 29, 2014

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Field sobriety tests aren't necessarily foolproof

When you are pulled over by the police and they believe that you have been driving while intoxicated, they will go through a number of steps to determine your inebriation. There's your standard field sobriety test, which involves an officer asking you to do a number of tasks. There is a breath test, which can be done by Breathalyzer. A blood or urine test may be required later.

But all of these tests have faults, may it be by the way the test is performed by an officer, or by the way the evidence is handled thereafter. Let's start with the first test, your standard field sobriety test.

The officer could ask you to perform a number of actions here, such as saying the alphabet backwards, walking in a straight line toe-to-toe, and touching your nose when your arms are initially extended outwards from your body. All of these actions are difficult for a sober person to pull off without the stress of a police officer watching them, let alone a possibly intoxicated person during a traffic stop. These tests have been ridiculed by many as not providing any proof of a person's sobriety or intoxication.

The breath test is a big one in the state of Minnesota. Under implied consent, you have to take a breath, blood or urine test to establish your blood alcohol level, though you can refuse an initial field sobriety test. However, the breath test could be improperly administered by the police, invalidating that evidence.

Under the same premise, the evidence garnered from a blood test could be mishandled or tainted. The test itself could even be botched by a lab technician.

Source: FindLaw, "Sobriety Tests," Accessed Oct. 23, 2014

Tags: Field Sobriety Tests

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The Walk and Turn Field Sobriety Test

Every day, law enforcement officers must decide whether to arrest a suspect for DUI.  They have to determine whether the person’s ability to drive is impaired below normal or whether their blood alcohol content exceeds the legal limit of .08%.  One of the tools they use is the Standardized Field Sobriety Test (SFST) battery recognized by the International Association of Chiefs of Police and the National Highway Traffic Safety Administration (NHTSA). This battery consists of 3 tests: the Horizontal Gaze Nystagmus, the Walk and Turn and the One Leg Stand tests.

In this week’s podcast  Steve Oberman provides a summary of the standardized Walk and Turn test. If you have not done so already, you should first listen to the previous podcast entitled “The History of Field Sobriety Tests,” which can be found by clicking here.

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Additional information about the Walk and Turn test, as well as the remaining standardized field sobriety tests, can be found on the Oberman & Rice websites at http://www.tndui.com/ and http://www.duiknoxville.com/.  You may also contact Steve or Sara for more information by calling (865) 249-7200.

Driving Under the Influence, DUI, DUI Field Sobriety Tests, field sobriety test, FST, Knoxville DUI, Knoxville DUI Lawyer, SFST, Tennessee DUI Attorney, Walk and Turn Test

This entry was posted on Sunday, May 8th, 2011, 5:41 pm and is filed under Podcasts. You can follow any responses to this entry through RSS 2.0. You can leave a response, or trackback from your own site.

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Why I Would Not Take Field Sobriety Tests

tag:blogger.com,1999:blog-1587559881278326369.comments2014-12-02T03:13:46.253-08:00DGDAttorneyhttp://www.blogger.com/profile/07241517680791263522noreply@blogger.comBlogger0125

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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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Field Sobriety and Breath Test Results Challenged in Appeal by Pennsylvania DUI Defendant

An appeal in the Pennsylvania Superior Court claimed that a field sobriety test conducted on a snow-covered road, along with breath testing conducted without the 20-minute observation period required by Pennsylvania law, were insufficient to support a conviction for driving under the influence (DUI). The defendant/appellant in Commonwealth v. Favinger challenged the sufficiency of the evidence against him and the legality of the traffic stop that led to his arrest. The Superior Court ultimately affirmed the verdict and sentence, but its opinion offers a useful overview of the different ways that prosecutors may establish that a defendant was impaired by alcohol in a DUI case.

A state trooper pulled the defendant over at about 3:20 a.m. on January 29, 2011. The trooper testified that the defendant continued to travel about half a mile after the trooper activated his emergency lights, finally stopping in a driveway. He claimed that he detected the odor of alcohol, and that the defendant’s eyes were “bloodshot and glassy.” The defendant agreed to field sobriety testing, which the trooper claimed he failed. Breath testing conducted after the defendant’s arrest showed blood alcohol content (BAC) of 0.128 percent. The defendant was later convicted of DUI–general impairment and DUI–high rate of alcohol.

The defendant raised six issues on appeal relating to three broad issues: (1) whether the breath test evidence was sufficient to support the conviction, (2) whether the field sobriety testing evidence was sufficient, and (3) whether the traffic stop was valid and supported by probable cause. In its opinion, the Superior Court cited a 2013 case, Commonwealth v. Teems, which identified the standards for proving guilt under the Pennsylvania DUI statute. Teems specifically states that BAC evidence is not required. The state may present evidence of the defendant’s behavior, including general demeanor and appearance, behavior towards law enforcement officers, and performance on field sobriety testing, in order to prove that a defendant is “incapable of safely driving” a motor vehicle.

On the issue of breath testing, the defendant claimed that the officer administering the test did not observe him for “at least 20 consecutive minutes,” as required by state regulations, prior to the test. The court noted evidence showing that the arresting officer also administered the breath test, and that he began the 20-minute observation period at about 3:50 a.m. He administered a breath test at 4:11 a.m. that did not produce an adequate breath sample. Two additional tests, performed about five minutes later, showed BAC of 0.128 and 0.131 percent.

The court also rejected the defendant’s argument that the presence of snow on the roadway during the field sobriety test, which caused the defendant to slip and fall, made the test results unreliable. The arresting officer’s testimony, and the jury’s conclusions based on that evidence, were adequate to support the guilty verdict. The court reached the same conclusion regarding the trooper’s testimony regarding probable cause to initiate a traffic stop, which claimed that the defendant’s vehicle veered out of its lane of traffic in violation of state law.

If you have been arrested or charged with DUI, you should consult with a knowledgeable and experienced DUI attorney, who can advise you of your rights and help you plan the best possible defense. We have dedicated 100% of our law practice at Levow & Associates to DUI defense. Please contact us today online or at (877) 975-3399 to schedule a free and confidential consultation to see how we can help you.

More Blog Posts:

Pennsylvania DUI Defendant Argues on Appeal that Verdict Went against Weight of Evidence, Gets New Trial, Pennsylvania DUI Lawyers Blog, May 13, 2014

Court Sides with Police Testimony over Video Evidence in DUI Case, Pennsylvania DUI Lawyers Blog, May 1, 2014

Pennsylvania Superior Court Affirms DUI Conviction, Demonstrating the Importance of Preserving Error at Trial, Pennsylvania DUI Lawyers Blog, March 20, 2014

Photo credit: By Niagara (Own work) [CC-BY-SA-3.0 or GFDL], via Wikimedia Commons.

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Field Sobriety Test Studies Found to Be Flawed

Proponents of the so-called “standardized” field sobriety tests (SFSTs) have long pointed to federally-funded field studies which indicate a high correlation between performance on the tests and actual blood alcohol concentrations (BAC). 

Subsequent studies, however, have called those conclusions into question.

Originally, the National Highway Traffic Safety Administration (NHTSA) paid a private group, the Southern California Research Institute, to conduct studies to find which among the various field sobriety tests used by police were most effective and to develop a standardized 3-test battery.  SCRI subsequently reported to NHTSA that a battery of walk-and-turn, one-leg-stand and nystagmus provided a strong correlation with breath test results.

Confronted with questions about those conclusions, NHTSA later commissioned the same researcher who had conducted the original studies, Marcelline Burns, to  corroborate the accuracy of her own tests of the SFSTs – rather than commission an independent source. 

Burns accompanied a small number of San Diego officers conducting actual DUI investigations in the field.  After administering the SFSTs, the officers were asked to guess whether suspects had blood alcohol  concentrations (BAC) over or under .08%.   Burns reported a 91% correlation between SFSTs and BAC over-under estimates, thereby validating the battery of tests she had helped create.

A subsequent scientific article challenged Burns’ corroboration of her own research.  In Hlastala, Polissar and Oberman, “Statistical Evaluation of Standardized Field Sobriety Tests”, 50(3) Journal of Forensic Sciences 1 (May 2005), the raw data used in the validation study were obtained from NHTSA through the Freedom of Information Act.  The methodology used was then reviewed and the data subjected to statistical analysis.

The methodology was found to be seriously flawed in a number of respects.  For one thing, many of the suspects had very high BACs, making estimates of whether a suspect was over .08% obvious regardless of SFST performance.  For another, there was no attempt to isolate the influence of SFST performance from other factors:  officers estimated BACs after the field sobriety tests, but they also took into account earlier observations, such as erratic driving, slurred speech, odor of alcohol, flushed face, admissions as to amount of alcohol consumed, etc.

The most glaring defect in Burns’ corroborative study was that “all police officers  participating in the study were equipped with NHTSA-approved portable breath testing devices”.  In other words, the San Diego officers already had the results of portable breath tests before they were asked to estimate the BACs later obtained at the station!

After reviewing the flawed methodology, the raw data was then statistically analyzed.  The conclusions:

If we consider three ranges of MBAC [measured blood alcohol content], 0.00% to 0.04%, 0.04% to 0.08%, and 0.08% to 0.12%, the officers’ EBAC [estimated blood alcohol content] overestimated the MBAC 76%, 67% and 48% of the time, and underestimated it 14%, 26% and 28% of the time. 

In other words, officers relying upon field sobriety tests were far more likely to overestimate  BACs than underestimate — particularly with those suspects having very low BACs. 

(T)he utility of the SFST depends very much on how intoxicated an individual is.  Accuracy (and specificity) are low when individuals are close to 0.08% MBAC, but if the individuals are quite intoxicated, such as above 0.12%, then accuracy is high.

In borderline cases involving persons at or under the legal limit, then, officers were very poor at estimating blood-alcohol levels based upon SFSTs.  And it is these cases, of course, that are critical.  Suspects with high BACs are relatively easy to single out without the help of field tests; it is for the closer cases, particularly those who are innocent (below .08%), that the SFSTs are designed.  And it is with these very cases that the tests apparently fail. 

Put another way, accuracy in using field sobriety tests is high when they are not needed — and low when they are.

For another independent study conducted by Professor Spurgeon Cole of Clemson University, in which he found field sobriety tests to be worthless, see Are Field Sobriety Tests Designed for Failure?.

This entry was posted on Monday, June 18th, 2012 at 12:29 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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DUI Myth Busters: Field Sobriety Tests are Meaningful

A widely held misconception, amongst both law enforcement and the general public, is that the standardized field sobriety tests are a valid method for determining impairment.  This just simply is not true.

Here are some simple questions that will show you why these field sobriety tests are meaningless:

Have you ever stumbled while walking?
Does that stumbling mean you were drunk?
If you can stumble while walking normally, what about when asked to perform the difficult and awkward task of walking heel-to-toe -the way nobody walks?

What about standing on one leg?
Is this something you practice often?
If you stumbled does that automatically mean you are drunk?

The fact of the matter is that doing poorly on these very difficult field sobriety tests can be attributed to a number of reasons like being:

ElderlyOverweightHaving a history of leg or back injuriesSuffering from an illness or weaknessWearing high heelsDownright clumsyExtremely nervous or scared

Despite these facts, there is too much emphasis put on these field sobriety tests during a DUI trial and because of this, many innocent people have been found guilty of DUI and especially of DUI-drugs (no testing is required at all, only the opinion of the officer is needed).

This is why you should always choose a DUI lawyer who is an expert in Field Sobriety Testing and can defend these issues in court.  This is an important part of properly representing your case and protecting your rights.

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