DUI Survival Guide - Field Sobriety Tests & the Preliminary Breath Test
In a perfect world, a defendant would not have submitted to any field sobriety test, because the police officer will always be able to find a few things that were done incorrectly, which are inferred means the defendant was intoxicated.
Performing a test too fast, slow or minor variance from the instructions is considered a failure of the test. These tests were designed to provide evidence of intoxication, not assist in a defendant's drunk driving defense. The prosecution will present a "totality of the circumstances" argument that any mistake performing these tests equate to intoxication. It's importantto focus on the favorable test results, and discredit what the prosecution would have you believe indicates intoxication.
There are only 3 field sobriety tests sanctioned by the NHSTA manual, and officers are instructed to stick to those three tests, and those three tests alone.
In Michigan, these “well-trained” officers do not follow their own rule book. In most of the cases that I handle, an officer has my client sing the alphabet, count backwards or estimate time. These are improper tests and should not be used in Michigan. If an officer uses them I am going to go after him for not following the rules, and trying to “get” my client by playing outside of the rules. If an officer cannot follow their own protocol, which they are trained on when it comes to field sobriety tests, then what else did they do incorrectly?
I don’t even bother to challenge these extra field sobriety tests, because they are not part of the rule book, and outside the officer’s protocol. My client doesn’t get a say in the rules or the standards set, so when the police and prosecution make the rules, they better sure follow them. You can’t change the rules because you’re lazy or don’t know how to instruct and/or administer the proper field sobriety tests.
If the police rely on this sort of package, they are going to be in trouble when I review the case, and go after them for not following their own rules.
Here are the three tests, which are in the NHSTA manual, which we must address.
Walk and turn test
This test requires a defendant to walk heel to toe and turn. The officer is required to find a clean surface with a visible line; the surface must be level. It is VERY easy to fail this test; most sober people cannot 100 percent comply with its requirements. If you lose balance, start early, end early, fail to touch heel to toe on each step, usage arms for balance, stepping off the visible line or performing incorrect number of steps, you fail this test. This is not a reliable test for intoxication, and your attorney will explore the results of this test on cross-examination.
The arresting officer will instruct the defendant to stand with a leg raised about six inches off the ground for about 30 seconds. If the defendant sways, hops or uses his/her arms for balance, it's a failure. This is a ridiculous test for most people, and almost impossible for person with physical conditions or defendants of certain age groups. Your attorney will explore the results of this test, and go after the assumption that the results of this test are any bit reliable.
Horizontal Gaze Nystagmus
This is a test that looks for involuntary jerking of the eye, which is alleged to be caused by the presence of alcohol in the defendant's system. This test is highly subjective, which the officers have very little training. An officer is expected to conduct an eye examination on the side of the road, and determine whether the subject has consumed alcohol based upon jerking of an eye. You don't need to be a doctor to know that jerking of an eye can be caused by various reasons other than alcohol consumption.
Along with field sobriety tests, we need to address the Preliminary Breath Test (PBT). The first BAC reading we typically have in a drunk driving case will be the PBT.
Officers offer this test in order to assist in justifying their arrest. The defendant has the option to take the test, or decline; if you decline, it’s a 2 point civil infraction if you're under 21, and 0 points if over 21. In the end, this civil infraction is usually dismissed anyway as part of an agreement that is worked out with the prosecutor.
Police officers aren’t always clear about the consequences of not taking the test, and are ok with my client believing that a refusal of the PBT will lead to loss of license, and 6 points on their license, which is not true (these sanctions apply to the Datamaster).
I typically believe taking the test only hurts your case, because if you blow over the limit, and there is evidence of driving, the officer has a slam dunk case for a legal arrest. Without the test, an officer has to rely on his subjective observations, and if you decline field sobriety tests, then the officer really has to stretch his rationale, and we stand a great chance to challenge the arrest. Yes you could be arrested, and you gave up the chance to show you were below the legal limit, but unless you're near 100 percent confident, you will pass, taking the test usually only has downside. Even if you "pass" the test, an officer can arrest you based upon impairment, which does not require you be over the legal limit.
In Michigan a police officer may arrest a person based in whole or in part on PBT results. Once used as part of the arrest, the test is typically no longer admissible with limited exceptions.
So the first part of beating the PBT is to not take it at all. I’ve filed a lot of motions to challenge an arrest, because the cop did not have a PBT result as part of his arrest; we were able to attack field sobriety tests and officer observations and beat the arrest.
If a PBT is administered, the question becomes, do we want to try to use the results to help or case, or make sure to keep it out of the case. Most would say, let’s keep it out, because it’s evidence against me. Here is how I have used the PBT to help my clients win at trial.
Let’s assume my client is charged with a High BAC/Super Drunk offense in Michigan. We have a PBT result of say 0.13, we then have a Datamaster result of 0.18 an hour later. How can that benefit my client? Well a High BAC prosecution requires that the prosecutor prove beyond a reasonable doubt that when my client was driving his/her car, their BAC was over 0.17. Well alcohol levels go up and down after your last drink. The question is, when the police stop you, are you rising or falling in your BAC level?
Former NYC & Michigan Prosecutor
Selected - 2013, 2014, 2015, 2016, 2017 & 2018
With these two readings, we have a clear rise in BAC level. This would assist in an argument that my client’s BAC was rising, and likely was below 0.17, and closer to the 0.13 result at the scene. This type of scenario has helped me resolve cases with very favorable plea deals, especially in certain counties than never bargain on Super Drunk cases.
We also use these numbers at trial, but in order to introduce the PBT at trial, we need to fit it into one of the three exceptions to the rule. The three exceptions in Michigan are the following:
In order to get the PBT into our case, I would go for the second exception. While it would not be automatically admitted, a crafty cross-examination of the DataMaster operator is likely to be fruitful.
With the right judge, it is also possible to sneak the result in through the prosecution’s witness, and most judges in my experience would view the matter as a matter of fairness; if there’s another BAC reading out there that might assist the trier of fact (the jury), they may let it in, and let the jury decide what to do with it.
The PBT is not automatically admissible because it is simply not as reliable as the Datamaster, which is tested, calibrated and checked on a regular basis (weekly and every 120 days). Many PBT devices go long periods of time without calibrating and could sit in cold or hot weather for long periods of time. The key is identifying the result, and how to use it to your advantage.