DUIs, Sobriety Tests, and Evidence

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Statistics are all over the place on DUIs, how many, how many in each county, how many result in death or serious injury.  According to the National Highway Traffic Safety Administration, “Every day, almost 30 people in the United States die in drunk driving crashes – that’s one person every 48 minutes in 2017.”  So it’s a serious problem. The Tampa Legal Team and Joseph J. Registrato, Esq., are experienced in handling DUIs, challenging the validity of sobriety tests, and evaluating the evidence.

But at the center of this serious problem is often an average person who made a mistake, a mistake that harmed no one.   That aside, our average person is going to pay a high price — including being handcuffed and taken to jail where he will spend the night locked in a cell, then later on, two or three court appearances, a year on probation, a criminal record, loss of his driver’s license, and more than a thousand dollars in fines and costs.  Unless he can get a business purposes driver’s license, he may very well lose his job.  All that will happen because, in one police officer’s opinion, the average person was “under the influence of alcohol to the extent that his normal faculties were impaired.”

But what about the breathalyzer?  It’s an important part of DUI law, but it doesn’t always tell the whole story, or even the correct story.   Despite the breathalyzer, a DUI conviction is often based on one person’s opinion.   For some lucky people, there is an alternate ending to this story, which we will get to shortly.    

Take this scenario, which is played out daily in every city from Miami to Anchorage.   A man or woman named Sam (or Samantha) is at a restaurant for a birthday party or a get together of co-workers from a downtown Tampa office.  Age doesn’t matter, nor does station in life, position, annual salary, or marital status.   Everyone, at one time or another, has been in Sam’s shoes.  Most people are drinking alcoholic beverages, vodka Martinis, rum and Coke, Scotch and Soda.  There’s food, too, appetizers mostly, shrimp on a skewer, rice bowls, chips and dip.  The mood is high, people are laughing and having fun; beer and wine and other booze is flowing freely.   Nobody is even thinking about Sam’s criminal culpability, he “looks fine,” and nobody’s worried about him.

After a few drinks, Sam feels the effects of the alcohol, (buzz), but has no trouble navigating the short walk to the rest room and then after a last drink, heads to his car for the ten-minute ride home.  Sam gives no thought to being “under the influence of alcohol to the extent that his normal faculties were impaired;” in fact he’s never heard that combination of words used in a sentence.   

If Sam were “falling down drunk,” that would have been obvious to everybody at the party, and somebody likely would have suggested giving him a ride home.  But he looked fine, walked and talked normally and had no trouble getting in his car, starting the engine and heading home. 

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Now if the party happened to be on a Friday night in Ybor City, or any number of other fun places people gather,  a person I will call Law Enforcement Officer Jay Strictly and his uniformed associates are out in force.  They know what they’re looking for.   Any deviation from traffic laws are often the tip-off.  Going too fast, going too slow, failure to signal a turn, clipping a curb while making a turn, weaving within a lane of traffic, any of those things and a million other hints, provide Officer Strictly with sufficient “reasonable suspicion” to stop the vehicle, walk up to the car and breathe deeply.   He might say later in court he smelled a strong odor of an alcoholic beverage emanating from the vehicle, that Sam’s eyes were “bloodshot and watery,” and that he “fumbled with his wallet when he looked for his driver’s license and registration.”   

Officer Strictly might say to Sam, “I can smell alcohol, have you had anything to drink tonight, sir?”

(At this point, the question is often asked, “What about reading you your rights?  How can he ask that question?”  It’s a good question, but courts have ruled that a “routine traffic stop” is not the kind of “custodial detention” that requires the police to read a suspect his rights). 

Sam, not knowing what to say, says, “I had one or two drinks at a party.  But I’m fine.”   Sam thinks he was being honest, and surely one or two drinks won’t be held against him.  Wrong.  “Strike One.”   Sam has just admitted to drinking alcohol, a key fact that he will read in the Officer Strictly’s report and hear Officer Strictly testify to in court.

At this point, Officer Strictly may or may not suspect Sam is “under the influence to the extent his normal faculties are impaired.  Either way, he’s not finished.  “I want to make sure you’re okay to drive.  Do you mind if I check your eyes?”

Officer Strictly says only he wants to “check Sam’s eyes.”  He does not explain that what he is about to attempt is a complex neurological examination called a horizontal gaze nystagmus (HGN) test, which some experts believe is a strong indicator of a person’s brain function when impaired by drugs or alcohol.  Many of these same experts have testified that it in order for the test to be valid, it must be accomplished by a trained professional, a doctor or technician, in a controlled setting, not on the side of the road where lighting and traffic passing might blur the senses.  But courts have ruled that if a police officer is trained to be a “drug recognition expert,” or DRE, he is allowed to subject drivers to the test and testify in court as to the results.  

So Officer Strictly instructs Sam to keep his eyes on a light he moves from side to side, and at the same time not move his head, just keep the eyes on the light.   The science behind this test relates eye movement called nystagmus to alcohol consumption.  In layman’s terms, if the brain is affected by alcohol or other drugs, the eyeballs will not have “smooth pursuit” of the moving light.

Officer Strictly does not explain any of this to Sam.  As far as Sam knows, the officer is merely “checking his eyes.”  I have watched dozens of videos of HGN tests performed on drivers that have been pulled over and asked by a police officer to let him “check his eyes.”   I have yet to hear a single driver say, “Check my eyes for what?”  I’ve never heard a single police officer explain the horizontal gaze nystagmus test to a driver, explain that research has shown that alcohol may affect the ability of a person to follow a moving light.  But in court, I’ve heard dozens of police officers say the driver’s eyeballs “lacked smooth pursuit.”  

Persons empaneled as jurors on DUI trials are told about the HGN test by police officers trained on how to testify to juries.  Jurors also hear mostly elementary explanations of how the test is supposed to work.  What jurors don’t get are close-up visuals of how the eyeball moved in a given case, and so must take a police officer’s word both for his own expertise in performing the test, and his observations of eyeball movement. 

There are other tests.  But even before performing the HGN or other tests, the police officer usually asks if the driver would agree to perform the test.

Sam might say, “Do I have to?”

Officer Strictly says, “No.  You can refuse.  But if you do I can use your refusal when considering whether to arrest you. In other words, I’d have to go on just what I know.”  Sam gets it in his head that if he “passes” the tests, the police officer will let him go.  So Sam agrees to do the tests.  A key point is that Sam doesn’t know what the tests entail; if he did he might well have made a different decision.   The truth is, whether a person performs well enough to avoid arrest is completely up to the police officer.  

Officer Strictly lays down a strip of tape on the sidewalk, a straight line. He then maneuvers his cruiser around so that his in-car camera is focused on the location of the tape.  He says to Sam, “I want you to place your right foot on the tape and place your left foot behind your right foot, like this.”  Strictly demonstrates how Sam should stand.  “Don’t start moving until I tell you to, just stand still like that.”

 The test requires Sam to stand still, one foot behind the other, arms glued to sides, no using the arms for balance.   Another way of describing this part of the test is to say Sam must keep his balance for as long as it takes for the police officer to explain the rest of the test.  Officer Strictly does not use the word “balance” at all, or explain that if he loses his balance, it will be held against him.

Officer Strictly does not tell Sam the test has already started.  If Sam does not stand still in the initial position, before even starting to take any heel-to-toe steps, that will go against him.  Terms such as “used arms for balance,” or “did not maintain start position,” are commonly noted by police testifying in court.

Standing in the heel-to-toe start position may be more difficult than taking the nine steps forward, turning around and taking nine steps back.  But Officer Strictly does not let on. 

The terminology of the law is you have committed a crime if you drive or are in “actual physical control” of a vehicle and at the time were “Under the influence of alcohol to the extent that his normal faculties were impaired.”  But the means by which a single police officer wants you to perform certain tests in order to measure your impairment, is a formula for failure. 

It is the argument of the DUI defense lawyer that standing in a fixed position for an extended period of time is not a “normal faculty,” nor is walking heel-to-toe along a line for nine steps.  It’s really more like walking a balance beam, and most average persons are not acrobats.

But what of the breathalyzer result?

First, not everyone agrees to take the test, and there is no way to compel a person to “blow into the tube.”  So in that case, there is no more or less objective way to measure the amount of alcohol in a person’s body.

Second, it is against the law to drive a vehicle with a blood alcohol level above a .08 at the time of driving, not an hour or two hours later.  The “expert witness” the State calls to explain how the breathalyzer works will testify truthfully that the breath alcohol result taken an hour or two hours after driving is not a measurement of blood alcohol level at the time of driving.  He will also admit, under oath, that the measurement of alcohol in the blood will continue to rise even after a person stops drinking, and often people who have experience with alcohol will confirm that the effect of consumed alcohol is not immediate, but takes time to affect a person’s “normal faculties.”  

Still another complicating factor when considering a breathalyzer result is that food interferes with the way alcohol is metabolized in the body.   While this is an important factor in determining a person’s actual impairment at the time of driving, it often requires an expert witness to explain.  However, even the average person who has consumed alcohol, which would include most jurors in DUI cases, understand that food makes a big difference in the way a person reacts to alcohol consumption. 

The argument to the jury would go something like this:  “We’ve talked about the breath machine, the box that somehow measures how much alcohol is in your blood and brain based on two breath samples, which remember can’t be saved to test again, we have to take their word for what it said at the time, which was two hours or three hours or however long it took to get him there, after the driving.  Not at the time of driving.  We don’t know what the measurement would have been at the time of driving unless they took the machine out to the spot where Sam was stopped, which we know they could have done, but did not.  Why not?  He didn’t say.” 

So, what is the alternate ending?

The alternate ending is you go to trial, point out the weaknesses and inconsistencies in the State’s case, such as the delicacy of the HGN test and question the likelihood of a police officer’s ability to measure brain function on the side of the road with a hand held flashlight, that walking a balance beam heel-to-toe while being watched by a police officer considering your imminent arrest is not a normal faculty, and even if it were a normal faculty, it was only impaired in the opinion of one police officer.   The video of how the person walked and talked and behaved after he was stopped is perhaps the most important evidence in a DUI case, and is sometimes a great advantage to the defendant.   

That is why we say as the great statement Winston Churchill said, “Fight on the beaches and in the streets, never give up.”