22/4/2015 0 Comments
If you’ve been pulled over for a DUI, the prosecution will use everything at their disposal to seek the maximum penalty possible. This means they’ll use breath tests and roadside sobriety tests to demonstrate you were operating a motor vehicle while your faculties were impaired. However, there are a few things they won’t tell you about field sobriety tests:
· At best, they are considered 77% accurate – that means they are wrong 1 in 4 times.
· Many police officers do not administer the test properly which inhibits your ability to score fairly.
· These tests are designed to test both your physical and mental abilities – things that are often difficult even when sober.
· These tests are voluntary and it cannot be used against you if you refuse to take them.
· Given the issues with tests, it’s in your best interest to refuse to take them if you’ve been pulled over for a suspected DUI
Are you required to take a Roadside Sobriety Test?
You can refuse a roadside sobriety test without fear of having your license suspended. One thing many motorists don’t realize is that when an Officer asks you to step out of the car they are already convinced they have enough evidence against you to make a DUI arrest. They do no need any more evidence from a roadside test. In fact, this evidence can just make the case against you worse so you are within your rights to refuse to take one. To do so, simply ask the officer if the test is voluntary, which most will let you know this is the case.
The Stand-on-One-Leg Exercise
Though this test is roughly only 65% accurate when it comes to assessing if someone is above the legal limit, it is still used in most road side tests. This test actually requires that the officer demonstrate to the subject how the test should be done. The test itself involves the following:
· The exercise is to be performed on a dry, level surface
· The suspect is asked to keep their hands to their side and raise their leg about 6 inches off the ground.
· The suspect is then asked to count slowly.
· Officers observe the suspect for any visible signs of shakiness or unsteadiness like trying to use arms to keep balance or hopping.
The Horizontal Gaze Exercise
Likely the most accurate of any roadside exercise, the Horizontal Gaze Test is also sometimes referred to as a “Nystagmus” test. This term actually refers to the way an eye can jerk or bounce involuntarily when an officer shines a light into them. It can, however, be given incorrectly which will significantly change the outcome. The test itself involves the following:
· The test must be administered where there are no visible blinking or flashing lights as these will affect the involuntary movements of the eye and result in an inaccurate test.
· Glasses must be removed before taking this exam for accurate results.
· Officers are supposed to inform suspects by saying “I am going to the check your eyes” when they intend to do this test. They are also to ask if the suspect is wearing any visual aid like contacts, or if they have any conditions that would cause the test to be inaccurate.
· If there are conditions like these, the officer will still conduct the test, but they must note these issues along with the results in their report.
· During the test, the officer asks the suspect to follow a small beam of light (usually a pen light) with their eyes (that is their head should remain stationary).
· The light should be around 12 to 15” from the suspect’s eyes.
If you believe you’re currently fighting a DUI charge and had a Horizontal Gaze Exam incorrectly administered, you need to talk to a qualified Florida DUI Attorney as soon as possible.
The Walk-and-Turn Exercise
This common roadside examine can be difficult for some people to complete when they are sober, so passing it in a stressful situation where you may or may not have consumed alcohol makes it even more difficult. Most people are familiar with this test as the “heel to toe” where you walk in a straight line heel-to-toe. The test specifically involves:
· Suspects must walk in a straight line for a distance of 9 steps with each step being taken so that the heel touches the toe of the other foot. Suspects are required to count each step out loud.
· A Suspect’s hands must remain at their side for the length of the test.
· After taking 9 steps, suspects are required to turn around in four small steps and repeat the 9 steps and counting back to their original starting position.
· After making two “mistakes” the officer will consider the suspect to have failed the test. Mistakes include things like:
o Raising either hand over six inches during the first step
o Failing to put your hands back down on the second step
o Raising your hands even slightly at any other time during the exercise
o Miscounting or failing to walk heel-to-toe
There are so many possible opportunities for a mistake with only two being allowed for failure that this test is stacked against the suspect. Refusing to take it is your best chance to not provide further evidence that the prosecution can use against you in court.
Still have questions?
Please call us for a free appointment with Miami business attorney Yoel Molina in our Miami office at 305-548-5020.