Drunk Driving FAQs

The Breathalyzer

Q:  Should I take the breathalyzer?

A:  There is virtually never a good reason to submit to a breathalyzer at the side of the road

First, remember that each drink you consume will increase your blood alcohol content by approximately .025. 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. The legal limit in California is .08. If you have consumed no more than four drinks over the course of four hours, you might pass the breathalyzer. But why take it? The only reason police give this test is to lock you into a "pattern". After you are arrested, you are required to submit to another blood test, either a blood draw or another breath test. By taking the test at the side of the road, you have locked yourself into a pattern that will be nearly impossible to get out of.

If you refuse to submit to the breathalyzer, the Department of Motor Vehicles penalizes you by automatically suspending your license for 1 year. If you fail the breathalyzer, the Department suspends your license for 180 days. If you "pass" the breathalyzer with a .07 or lower, the Department will not suspend your license.

A breathalyzer reading in excess of .08, in the hands of a capable prosecutor, can be a powerful weapon against you at trial. This reading carries with it a presumption of intoxication. Your right to be presumed innocent is, therefore, compromised. A reading in excess of .12 could be detrimental to your defense. A good criminal defense lawyer might be able to successfully move to have the results suppressed. If suppressed, the jury never learns that you took the breathalyzer. If the court refuses to suppress the breathalyzer reading, it could cripple your defense.

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

Field Sobriety Tests

Q:  Should I do the Field Sobriety Tests?

A:  Unless you haven't had a single drink, this is a very bad idea.

If you have been drinking and the police pull you over, be smart and refuse to incriminate yourself. If you believe that you will slur your words or be unable to speak coherently, say nothing. An officer cannot come into court and tell the jury that you slurred your words if you refuse to say anything.

Exit from your vehicle only if the police ORDER you to exit the vehicle. If the police officer asks you to perform the field sobriety tests, politely refuse. You not only have no obligation to perform field sobriety tests, your refusal to perform these so-called tests is inadmissible against you in courts of the State of California. Furthermore, there is no penalty imposed upon you for refusing to attempt these discredited "tests." The "tests" are most 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 he can inform the jury how badly you failed them. And no matter how well you may believe that you performed on these "tests," the officer will likely testify that you failed the "tests" miserably. Why help the officer build his case against you?

The police refer to these exercises as "tests" to give them an aura of scientific validity. These exercises have no scientific grounding. Most police academies will teach versions of these exercises based on those recommended by National Highway Traffic Safety Administration (NHTSA). These exercises are referred to as "Standardized Field Sobriety Tests." In their application, there is often nothing standardized about the exercises. Every police officer varies in the manner in which he instructs suspects to perform them and how he interprets and/or grades the performances.


Q:  Is it possible to pass the breathalyzer, even if I've had too much to drink?

A:  Passing the breathalyzer after consuming several drinks is unrealistic.

Individuals have attempted creative, if not bizarre, ways to defeat the breathalyzer; many suspects deliberately exhale as little air directly into the mouthpiece as possible, including exhaling to the side of the mouthpiece; one former client began doing situps and pushups and jumping jacks. Police officers administering the breathalyzer are on the watch for such antics and will likely testify to their observations of your attempts as "consciousness of guilt" evidence. Can you imagine an Orange County jury acquitting an individual who was so desperate to fool the breathalyzer, or so intoxicated, that he started doing calisthenics? If you have had anything alcoholic to drink, get behind the wheel and are stopped in Orange, San Diego, Riverside or Los Angeles County and want to give yourself the best possible chance for an acquittal at trial, refuse the breathalyzer.


Q:  What field sobriety "tests" might be asked to perform?

A:  Any number. See below.

I. Heel-to-Toe or Walk-and-Turn "Test"

"Test" Conditions

  • According to NHTSA the "Walk-and-Turn test requires a designated straight line, and should be conducted on a dry, hard, level, non-slippery surface, under relatively safe conditions." That the validity of the test is compromised by the officer's failure to adhere to these simple requirements is often ignored by police officers. Here in Orange County, police officers often force suspects to perform this exercise in the dark on uneven, wet, slippery, slopes littered with debris. If the roadway has no line, officers will instruct suspects to imagine that there is such a line. At trial, these officers will claim that the suspect stepped off the line. It is very rare for an officer to have a suspect perform the exercise elsewhere, even if the recommended conditions exist just across the street.

Instructions:

  • suspect assume heel-to-toe position
  • place left foot on line
  • right foot in front left
  • arms at side
  • remain position until told begin
  • 9 steps
  • heel-to-toe
  • on line
  • keep arms by side
  • watch feet all times
  • count steps out loud
  • once start don't stop
  • remember 11 different

Officer Watches for "distinct clues":

  • maintains balance during instructions
  • starts before told
  • stops to steady himself
  • failure to touch heel-to-toe (space _ inch or more)
  • steps off line
  • uses arms to balance himself
  • takes incorrect # steps

Grading Criteria:

    The NHTSA instructs police officers to "classify the suspect as impaired" if he exhibits two or more distinct clues on this test or if he fails to complete it. Even if the "test" conditions are ideal, the officer's instructions perfect, and his grading accurate and fair, he will only be "able to correctly classify about 68% of [his] suspects." That, of course, means that even the most competent officers routinely flunk 32% of the sober people who submit to the exercise. When we consider that most of these officers vary their instructions and disregard defective conditions, these officers will almost never accurately classify the unfortunate motorists they stop.

II. One Leg Stand "Test"

"Test" Conditions

The NHTSA requires officers to give this "test" on a hard, dry, level, non-slippery surface." The officer should insure that there is adequate lighting for the motorist. As the NHTSA concedes, "in total darkness, One Leg Stand is difficult even for sober people." The NHTSA fails to address how the flashing blue lights of the cruiser, the headlights of passing cars and trucks, or the officer's flashlight might also prove unfairly disorienting to a motorist. As with the heel-to-toe above, the police give little thought to where they have the motorist perform this exercise.

Instructions:

  • not begin test until told to
  • listen to instructions
  • stand with feet together
  • keep arms at side
  • lift one foot 6"
  • knee straight
  • count to 1 - 15
  • out loud
  • "one-one thousand, two-one thousand" (divides attention between balancing and counting)

Officer Watches for "distinct clues":

  • sway
  • use of arms for balance
  • hops
  • keep arms by side
  • look at foot
  • keep foot 6" off ground
  • count out loud
  • count correctly

Grading Criteria:

    The NHTSA instructs police officers to "classify the suspect as impaired" if he exhibits two or more distinct clues on this test or if he fails to complete it. The NHTSA concedes that even if the "test" conditions are ideal, the officer's instructions perfect, and his grading accurate and fair, the "test" is a "reliable" indicator of intoxication "only 65% of the time." As with the heel-to-toe above, even the most competent officers routinely flunk 35% of the sober people who submit to the exercise. When we consider that most of these officers vary their instructions and disregard defective conditions, these officers will almost never accurately classify the unfortunate motorists they stop. As the NHTSA recognizes, "Some people have difficulty with One Leg Stand even when sober."

III. Alphabet Test

Although the majority of field sobriety test manuals do not include the alphabet "test" among the recommended field sobriety exercises to be administered, police officers routinely instruct motorists to recite the alphabet in a non-rhythmic manner to gauge their sobriety. By requiring the motorist to recite, rather than sing, the alphabet, the officer hopes to trip up a motorist with a "simple" test that a jury will likely conclude should have been easily completed by a sober motorist. Of course, sober, but nervous, motorists routinely fail to correctly recite the alphabet. The stress of performing this "easy" task in the dark, along the roadside in front of an intimidating officer or two can be most difficult. In my opinion, requiring a motorist unnerved by the prospect of imminent arrest to recite the alphabet in a non-rhythmic manner reveals little to nothing about an individual's sobriety.

IV. Horizontal Gaze Nystagmus

Definition of Nystagmus

"Nystagmus (ni stag_ m_s), n. a congenital or acquired persistent, rapid, involuntary, and oscillatory movement of the eyeball, usually from side to side." WEBSTER'S ENCLYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE, p. 1333 (1996). According to the NHTSA, "nystagmus is natural, normal phenomenon." It notes that alcohol and drugs do not cause nystagmus, but may "exaggerate" the phenomenon.

There are numerous types of nystagmus:

  • Vestibular: can be caused by movement or action to the vestibular system. Types of vestibular nystagmus include rotational, post rotational, caloric, and positional alcohol.
  • Nystagmus can also be caused by neural activity. Webster's defines "neural" as "of or pertaining to a nerve or the nervous system." Id., p. 1291. Neural activity can produce optokinetic nystagmus, where the eyes jerk after having fixated on an object that suddenly leaves the field of vision or after fixated on sharply contrasting moving images. According to NHTSA, the most common type of nystagmus is "physiological nystagmus." It is brought on by neither drugs nor alcohol. It is believed that to some degree, all individuals have physiological nystagmus.

The "Test"

With the use of a pencil or penlight, an officer - with no medical or ophthalmology training whatsoever - attempts to gauge the jerk or bounce of a motorist's eyes as he (the officer) moves the pencil or penlight left to right or vice versa.

Officer Watches for "Specific" Jerking

  • eyes do not smoothly pursue the pencil;
  • once eyes have followed the pencil as far to the side as possible ("maximum deviation") and remain in that position for four seconds, they "jerk";
  • eyes "jerk" before they have moved 45 degrees to side

Cross-Examination of Officer who Attempts to Portray Himself as an Expert

  • no degree in ophthalmology, optometry or physiology
  • no medical courses on physiology of eyes
  • no license to diagnose eye dysfunction
  • never qualified as expert on eye musculature
  • never qualified as expert on physiology of the eye
  • taught at police academy to give nystagmus test
  • never trained by ophthalmologists, optometrists or medical physician
  • never trained by toxicologists or pharmacologists to understand how alcohol affects nystagmus

Cross-Examination of Officer on Other Causes of Nystagmus

  • caffeine
  • nicotine
  • aspirin
  • antihistamines
  • cold and flu
  • fatigue

The NHTSA states that the following illegal drugs also cause nystagmus:

  • PCP
  • inhalants
  • barbiturates
  • other depressants

Admissibility

At any trial in which a defense attorney anticipates that the prosecutor will attempt to introduce evidence that the defendant failed the Horizontal Gaze Nystagmus test, he should file a motion in limine seeking a pre-trial evidentiary ruling on the admissibility of the test. In California, the results of the HGN will normally be ruled inadmissible. In State vs. Sands, 424 Mass. 184 (1997), the Supreme Judicial Court held that to introduce evidence that a motorist failed the HGN test, the State had to demonstrate that: (1) the "theory" behind the HGN test was scientifically sound; and, (2) that the officer who administered the test was competent to both administer the test and to interpret the results. Because the State is unable to demonstrate that the HGN is more than junk science, the results of the test are routinely ruled inadmissible.

V. Finger-to-Nose "Test"

The Finger-to-Nose "Test" is another divided attention "test" ostensibly designed to help the officer gauge the sobriety of a motorist. Officers in California do not administer this exercise to motorists as often as they administer the Heel-to-Toe and One-Leg-Stand test. It is an exercise that is so difficult to perform correctly, that many - if not most - sober drivers would probably fail the test. The exercise requires the motorist to remember and perform nine distinct tasks almost simultaneously.

Instructions:

  • stand straight
  • extend arms parallel to ground (shoulder height)
  • hands in fists
  • extend index finger (not middle finger)
  • close eyes
  • tilt head back
  • touch tip nose
  • with correct hand
  • then return hand to outward position

Officer Watches for the Following:

  • closed eyes
  • standing straight
  • swaying
  • properly extending arms
  • hands in fist
  • extending index finger
  • tilting head back
  • touch tip nose (not side or upper lip)
  • with index finger of correct hand
  • and returning that hand to original position

Officers usually testify that the motorist used the incorrect hand (i.e., motorist used left when instructed to use right), swayed, and touched side of nose or upper lip. Given the difficulty of the test, and the fact that the jurors are unfamiliar with eachother, it may be a good idea to suggest that they try the "test" before their fellow jurors during deliberations.