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FIELD SOBRIETY TEST IN DUI CASES CALIFORNIA

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Field Sobriety Tests (FSTs)

Field sobriety tests (FST) are a series of tests that police use to determine if a driver is impaired and can not safely operate a vehicle. Field sobriety tests are tests used by law enforcement to determine if a driver is impaired regardless of the blood alcohol level or when the blood alcohol level is not known. It is important to understand that these tests are very subjective and sometimes can be difficult for a sober person to “pass” (a subjective determination by the officer). In fact, the accuracy of field sobriety tests has been repeatedly challenged in scientific studies. Contrary to popular belief, the FSTs are not mandatory: and a driver can decline to submit to the tests with no clear adverse legal consequences.

BLOOD SPLITS

If prior to the test of your breath or blood, you submitted to the Field Sobriety Tests (as most persons who are investigated for DUIs), and you did well on the FSTs, it shows that you are not impaired at the time of test, regardless of the subsequent blood alcohol measurements.  So, even when blood results come back with a high level of alcohol, your Los Angeles DUI attorney can argue that the good FTSs show that you were not impaired and that the breath or blood test is inaccurate (especially when the results of the blood test are high).  In a case like this, a DUI defense attorney in Los Angeles can get your Los Angeles DUI dismissed.   The disconnect between the results of the Field Sobriety Test and the blood alcohol results can also be confirmed by retesting the blood sample.  This is known as a “blood split”.  “Blood Split” is a procedure to “split” part of the blood that the police received in a DUI investigation and retest it.  Blood Split should not be done in all Los Angeles DUI cases.  Most Los Angeles DUI defendants do not benefit from blood split because if the result of the “blood split” comes back confirming the blood alcohol level, the prosecutor will use it against the defendant.   The benefit of a blood split comes when the presence of alcohol-producing bacteria is detected in the blood sample.  The results of such a blood split test can be shown to the prosecutor to get a dismissal of your DUI case.   Another benefit of a blood split comes from testing the number of preservatives in the blood sample.  A low level of preservative would indicate a high chance of blood contamination or spoilage and cast doubt on the reliability of the blood alcohol content level.  Also, if the police testing of blood at the cut-off level, such as .20 or .08, and you are attempting to get a better deal from the prosecutor, a retest of the results below .08 or .20 would help get that better deal in your DUI case.   Short of these situations, a blood split should be used sparingly.  At trial, a good Los Angeles DUI defense attorney, if no blood split is done, would ask the prosecutor’s expert if his lab tested for the amount of preservative in the tube.  They never do.  This is one of the arguments that the blood results are unreliable.

Three “Standardized” DUI Field Sobriety Tests.

Standardized field sobriety tests are called that because their effectiveness was tested in a lab. They are:

• THE HORIZONTAL GAZE NYSTAGMUS TEST
• THE WALK & TURN TEST
• THE ONE-LEG STAND TEST

Using Field Sobriety Test To Win DUI Case

Most prosecutors love DUI field sobriety tests because FSTs almost show some level of impairment.  Most people make mistakes on at least some of the FSTs and they are always used as evidence of a DUI against drivers by the prosecutors and the courts.  Los Angeles DUI lawyers can use DUI field sobriety tests to win Los Angeles DUI cases.  When a driver does well on some of the field sobriety tests, the DUI case becomes defensible.  For example, Los Angeles DUI Attorney can win Los Angeles DUI when there is a good performance on at least one field sobriety test even if the blood or breath test shows a high blood alcohol content.

California Supreme Court in Coffey v. Shiomoto decided that DMV can consider a field sobriety test (FST) to contradict an argument that the defendant at the time of driving was below .08% BAC.   This is not earth-shattering news because Los Angeles DUI prosecutors often use circumstantial evidence of intoxication not only to prove the “impairment” count (CVC 23152(a)) but also the “per se” count (CVC 23152(b)) (see Burg v. Municipal Court 35 Cal. 3d 257).  Courts of Appeals also allow consideration of circumstantial evidence of impairment to prove blood alcohol level.

“Evidence regarding how a defendant drove, performed field sobriety test, and behaved is admissible and relevant as tending to establish that he did or did not have a .10 BAC while driving” (McKinney v. DMV (1992) 5 Cal. App.4th 519 and Jackson v. DMV 22 Cal App. 4th 741; People v. Randolph 213 Cal. App 3d Supp. 1, 7).  However, now, thanks to the case of Coffey Los Angeles DUI attorneys can use the DUI field sobriety test to win DUI cases because of Coffey holding.

In Coffey, the Supreme Court allowed the evidence of intoxication to rebut the expert’s testimony.  There, Ashley Coffey drove erratically, appeared intoxicated, and provided the implausible story of having just turned 21 while coming from a bar without consuming any alcohol.  When police investigated her, she also did not perform well on several DUI field sobriety tests.  Rebutting the DUI driver’s expert testimony using the DUI field sobriety test seemed very appropriate in that case.  Ashley Coffey lost her DMV case but the court reached a conclusion that is very helpful for Los Angeles DUI defense lawyers because it allows using the testimony of a qualified expert to rebut statutory presumption.

Before this decision, the DMV hearing officers at a hearing often ruled that expert testimony was insufficient to overcome the statutory “3-hour” presumption.  This new opinion permits DMV defense attorney in Los Angeles to rebut the 3-hour presumption.  The presumption is a state law that says that if a driver is tested for alcohol and it shows that he is over 0.08% BAC within 3 hours of driving, he is presumed to be over 0.08% BAC at the time of driving.  The presumption is a very unfair statutory excuse to convict drivers who can easily be under the legal limit at the time of driving.

For example, if you consumed alcohol right before driving and were arrested immediately after that, and then your blood was tested 2 hours later, the alcohol in your blood might be higher at the time of the test than at the time of driving.  Proper scientific analysis will show that the blood alcohol level at the time of driving would be lower than 0.08%.  The legislature decided to ignore science and allow the unfair conviction of drivers based on the pressure from aggressive anti-DUI groups, such as MADD and law enforcement.

California courts are finally permitting DMV to set aside APS suspensions when evidence shows that the driver was not impaired at the time of driving.  Now Los Angeles DUI attorneys can use DUI field sobriety tests to win DUI cases more effectively.

Field Sobriety Test Accuracy In DUI Investigations

Various studies examined police officers’ ability to see if they can truly determine a person to be above the legal limit by looking at how he or she performs on the field sobriety tests (FST).  The results of these studies are not helpful to the police.  Some studies show that police committed mistakes 32 percent of the time (1981 study by Tharp).

Other studies are even worse.  Even the studies that started the use of the Field Sobriety tests showed a lot of false positives.

1977 NHTSA STUDY by BURNS and MOSKOWITZ

In 1977 Marceline Burns and Herbert Moskowitz got a grant from the Federal government NHTSA (National Highway Traffic Safety Administration) to select a few sobriety tests that can be used at the time a driver is stopped on the road.  The study established the current 3 standard field sobriety tests used by many police officers (the one-leg-stand test, the horizontal gaze nystagmus, and the walk-and-turn test).  However, the authors themselves stated that false positives are a concern.  In the 1977 study when the legal limit in California .10%, Burns/Moskowitz’s study had a 47% false-positive rate. The 1977 study recommended 3 other tests that are sometimes used by police to this day (finger-to-nose test, finger count, and paper-pencil test).   The study was done in Los Angeles and Los Angeles police officers were used to look at the randomly selected subjects who would have a blood alcohol level between 0 and .15 BAC. The study used 10 police officers and 238 subjects.   The study was double-blind, which means that neither the officers, subjects, nor researchers knew which subjects consumed alcohol and how much.

The results of the Burns study showed that the Rhomberg balance test was “repetitive” and the finger-to-nose and finger count tests did not improve correlation with blood alcohol level.   Burns and Moskowitz also did a follow-up study in 1981 that confirmed the 1977 study.  In 1995 NHTSA did a revalidation study to see if the 3 standardized tests are still reliable at .08% BAC.  The revalidation study was done by the National Public Service Research Institute in Landover, Maryland.

If we would create a parallel to the clinical context where medicine is tested and diseases are evaluated, such a level of false-positive would deem results unreliable and would discredit such research. This is so because in medical clinical trials, the accepted levels of reliability must often be not less than 15 percent false results.  Also, because the NHTSA study was not standardized, it is unreliable.

The reason one-leg-stand and walk-and-turn tests are used is based on a theory about how our brain operates and that we need to divide our attention between mental and physical tasks. According to this theory, an impaired person can not effectively divide his or her attention between mental and physical tasks and will fail the test.  However, a 1994 Cole study shows:

A study by Cole and Nawaczyk in 1994 (University of Clemson) concluded that

“even without alcohol, the number of errors made by individuals performing the field sobriety test was sufficient for officers to judge that individuals had too much to drink”

So, clearly, because the field sobriety tests are unfamiliar to drivers – they fail whether they are drunk or not.

This is important: the Field Sobriety Tests used by police officers everywhere including during DUI investigations in Los Angeles are designed to fail everyone – sober or not!

So, if someone is prosecuted for a DUI in Los Angeles you need an expert Los Angeles Drunk Driving Attorney who can educate the judge and jury about how unreliable are the field sobriety tests.

WALK AND TURN TEST

The second NHTSA field sobriety test that was approved to be used nationwide is known as the Walk and Turn test

The test is administered by a police officer on a flat even surface.  The subject has to place the right foot in front of the left foot with the heel of the right foot touching the toes of the left foot while keeping the arms at his sides and remaining in this position until the officer completes the instruction.   The officer then instructs the driver to take 9 steps while keeping arms to the side looking at his or her feet and counting the steps out loud.  Once the person finishes the 9 steps, he or she has to leave the front foot in place and using small steps of the other foot turn 180 degrees and place the turning leg in front of the other leg.  Once the turn is completed the person has to walk back the 9 steps.    The test has 8 clues and a person shows impairment if he scores 2 clues.  The clues that the officer will look for are:

1. starting the test prior to the completion of the instruction.
2. losing balance during the instruction phase.
3. missing heel-to-toe
4. stepping off the line
5. making an incorrect number of steps
6. making improper turn
7. not looking at the feet
8. raising arms
9. not counting out loud.

ONE-LEG STAND TEST

The third NHTSA field sobriety test that was approved to be used nationwide is known as the One Leg Stand test

The test is administered by a police officer on a flat even surface.  The subject has to stand with two feet together and lift whichever foot he or she likes approximately 6 inches off the ground.  Once the person lifts his foot he must keep the arms to the side, look at his foot counting until 30.   Two errors on this test are considered a sign of impairment and the officer will place a driver who has 2 clues present under arrest for a DUI.  The 4 possible clues are

1. putting foot down
2. swaying side to side
3. hopping
4. raising arms from the sides.

Should I Submit to The Field Sobriety Test?

If you do well, then yes.  Most people, despite what they believe, don’t do well.  The tests are subjective and in the eyes of a Los Angeles DUI Attorney, it is very hard to do well.

Because the field sobriety tests are voluntary and a refusal to submit to the field sobriety tests should not be allowed to be used against a driver suspected of a DUI in court or at the DMV, we recommend that you do not submit to it.  But if you did submit to the field sobriety tests, Los Angeles DUI Attorney can help you defend your DUI regardless of how poorly you did.

Los Angeles DUI lawyer will help you fight your DUI case in Los Angeles.  Our expertise allows us to get the best possible deals for you or take your case to trial when negotiation fails.  We are known by judges and prosecutors and take an aggressive position, defending our clients every step of the way.  We offer competitive prices and accept most credit cards.  Our payment plans are very affordable and will allow you to hire one of the best DUI lawyers in Los Angeles.  We are taking calls any time and you will reach an attorney directly if you call now.  Call for a free consultation and evaluation of your case.

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