I will begin this post as I will begin
many others; please don't drink and drive. It's stupid
and REALLY expensive if you get caught, not to mention
you might kill someone. DON'T DRINK AND DRIVE. That
being said, here's some tips on what you can do if you
get pulled over and the officer could suspect you of
drinking.
Well, you've made it through the stop
and the initial conversation, but somewhere, you messed
up. The police officer is now asking you to step out of
the car to do field sobriety tests. Here is what
to expect and what the real tests are.
1. The
first test is not something listed, it is how you get
out of the car. Remember that checklist we talked
about? Stumbling to get out of the car/using the car for
balance is one of those things. Put both feet
down, and step calmly and confidently out of your car
without using the car to keep your balance.
2. There are several things you should do
before beginning the field sobriety testing.
First, take an in depth look at your surroundings.
Is the road even? Is it covered in gravel?
What's the weather like? Are you cold, hot, or is
it raining? Is the road you are on seeing a lot of
traffic? All of these things can help your
attorney mount a case against the accuracy of the field
sobriety testing. Secondly, before the tests, you
should inform the officer of anything that might impact
your ability to take the tests. Do you have a
speech impediment? A limp or disability? Eye
problems? A fever? Are you too cold outside your
car? All of these things can significantly impact your
ability to take the standardized field sobriety tests
and while the cop probably doesn't care, you need to put
this information out there so your attorney has
something to question the officer about and provide an
explanation as to why you couldn't walk a straight line.
3. No one passes these tests, but do not ever
say "I probably couldn't pass these tests if I were
sober!" or anything like that. See previous posts
about shutting your mouth. The four tests you will
be asked to endure are the horizontal gaze nystagmus
test (HGN), the walk and turn, the one leg stand, and
finally, the portable breath test, or PBT. These
tests are designed so you will fail them. I will
post at length about the scientific problems with these
tests in the future, but here is a brief synopsis of
what to expect and what is actuall being tested.
4. The horizontal gaze nystagmus (HGN)
test.
Although this test
has a difficult name, it has an even more difficult
application. According to the National Highway
Traffic Safety Administration (NHTSA),
the agency that came up with these tests and whose book
is the
training manual for all officers using this test,
the HGN test measures the "involuntary jerking of the
eyes occuring as the eyes gaze toward the side."
This is measured by the officer making you follow a
fixed point (often a penlight) with your eyes without
moving your head. The thought is, if your eyes
twitch while tracking the object, you must be drunk.
Here, the officer is looking for three clues: the lack
of smooth pursuit, distinct and sustained nystagmus at
maximum deviation, and the onset of nystagmus prior to
45 degrees. This test's accuracy is dubious in
nature, as it is very difficult for even a well-trained
officer to accurately know when the object you are
tracking is at 45 degrees. It is so unreliable,
that courts throughout the United States (and even the
legislature in Missouri) have made the HGN test
inadmissible to show impairment, only to show probable
cause. The main thing to keep in mind here is
smooth pursuit.
Also, try
to note if there are any passing cars while you are
performing this test. Nystagmus falls under three
different categories, neural (what your brain is telling
your eyes to do), vestibular (what the rest of your
body, like the inner ear, is telling your eyes to do),
and patholigical disorder nystagmus (what a disorder,
like a brain tumor, is telling your eyes to do.
Police are looking for neural nystagmus, which may be
caused by alcohol consumption, but can also be caused by
"the eyes fixat(ing) on an object that suddenly moves
out of sight," like passing cars. This type of nystagmus
is referred to as optokinetic nystagmus and is
indecipherable from alcohol induced nystagmus when cars
are passing behind the stimulus (penlight).
5.
The walk-and-turn test.
You may think this is just a test to walk a straight
line, and that is certainly the appearence of the test
the officer will offer you, but they are in fact testing
much more than that. The test begins by the
officer instructing you to put your left foot on a line,
to put your right foor on the line agead of the left
foot with heel of the right foot against the toe of your
left foot, place your arms at your sides, and maintain
this position until I have completed the instructions.
He will also demonstrate all of the things he just
showed you. Little do you know, the test has
already started! There are several things the
officer is looking for during the "instructions" part of
the test. If you interrupt the officer, even to
ask a question about the instructions, you just showed a
clue of intoxication. If your feet come apart or
you raise your hands above a few inches from your waist
during this portion, you just showed another clue of
intoxication. If you sway while waiting for the
instruction to start, you just showed a clue.
Finally, if you begin the test before explicitly being
told to begin the test, you just showed a clue.
The NHTSA says that if you show two or more "clues" of
intoxication during this test, you have failed the test,
so you can fail before you are asked to even walk!
Remember this and act accordingly.
After the "instructions" phase, the officer will
demonstrate and tell you to walk nine steps, turn BY
KEEPING YOUR FRONT FOOT ON THE LINE AND TAKING A SERIES
OF SMALL STEPS WITH THE OTHER FOOT, and take nine steps
back, counting each step aloud and not stopping until
the test is completed. That portion is put in caps
for a reason, as no sane person turns around like that.
If you do a simple about-face at the end of the line,
you just showed another clue. Instead, you must keep
your toe on the line, then walk, like a lunatic, in a
small circle taking several steps with only one foot
until you have turned 180 degrees while keeping one toe
in place the whole time. If you turned like a
normal person, you just showed a clue. If your
arms leave your sides, you just showed a clue, if you
stop, even to ask a question, you just showed a clue.
If your feet don't touch heel to toe, you just showed a
clue. If you step off the line, you just showed a
clue. Hardly anyone passes this test, primarily
because of the hidden tests within it, but now that you
are armed with the information of what is actually being
tested, hopefully you can do well enough to stay out of
jail.
6. The one leg stand.
The officer will now tell you to
stand with your feet together and your arms down at your
sides, and to not perform the test until you are told
to. He will then tell you to raise one leg off the
ground approximately six inches but parallel to the
ground, both legs straight, arms at your side the whole
time, look at your foot, and count out loud in the
following manner "one thousand one, one thousand two,
one thousand three UNTIL TOLD TO STOP." Notice
caps again there? That's because this is where
even the most straight laced teetotaler would fail the
test. Most people count one thousand one, one
thousand two, and so on until they get to around 12,
figure that is sufficient, and drop their foot.
That person just showed two clues of intoxication and is
on their way to jail. What the officer does not
include in the instructions is that you have to count to
THIRTY! Not only is it very difficult to remain in
that position for thirty seconds, you are never told to
do so. Instead, you are just told to count out
loud until being told to stop, which most people ignore,
and then both put their foot down and stop counting
(both of which are clues) after a reasonable amount of
time has passed. As noted previously, it is also a
good idea to take note of any conditions that may affect
your ability to perform the test. The wind, the
temperature, the shoes you are wearing, and even a
headcold can seriously affect your ability to pass this
test. Let your attorney know of all of these
conditions.
7. The portable breath test
(PBT)
If you have shown
any "clues" of intoxication on the field sobriety tests,
(which you have, no matter how well you think you have
performed), then the officer will then ask you to take a
portable breath test. Depending on the
manufacturer, these do not detect your actual blood
alcohol content, merely the presence of alcohol. They
are also notoriously unreliable, and in Missouri, (like
the HGN) are inadmissible except to prove probable
cause. You will also likely be told at this point
that refusal to blow is a crime that you will be
prosecuted for. Do not confuse this with a refusal
to blow into the evidentiary device back at the station.
Refusal to blow into a big breath machine like a
Datamaster or Intoxilyzer is an automatic licence
revocation (which can be fought, call an attorney if you
have refused to blow within 15 days to get your licence
back) but refusal to blow into a PBT is a non-moving
violation which is not nearly as big of a deal. I
cannot advise you whether you should blow or not, but I
can say that if you are likely headed to jail anyway,
there is no reason to continue to build a case against
yourself if the only cost is a non-moving violation.
Assuming you have completed all
these steps flawlessly, then hopefully you are well on
your way, but you're probably still going to get
arrested (remember, the tests are designed to fail).
If so, read the next posting of what to do after you've
been arrested.
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