Archive for the ‘Field Sobriety Tests’ Category
Tuesday, March 20th, 2012
The majority of our population is familiar with the peculiar mental and physical testing utilized by law enforcement officers during DUI investigations. These tests have been dubbed Standardized Field Sobriety Testing (SFST), and we have received numerous questions regarding this form of standardized testing. While many have some familiarity of these tests, few know the accuracy of these tests, the importance of these tests in DUI cases, or what their rights are if they were ever asked to perform these tests. We encourage you to contact our office at Musca Law to discuss any questions you may have regarding Standardized Field Sobriety Testing. However, we understand that you may want to seek your own information, which is why we have included several frequently-asked-questions regarding Standardized Field Sobriety Testing in Florida, as seen below:
- Am I required to perform SFST if a law enforcement officer requests that of me?
The answer to this question is an emphatic NO. Motorists who are pulled over are not legally bound to perform SFST. These tests are questionable in nature and it may be presumed that you will fail upon administration, which may be why the officer made this request. You should only agree to participation if you are sure you will pass, otherwise subsequent failure may be used at a later time in subsequent prosecution.
- What field sobriety tests will I be asked to perform if I am ever pulled over?
Popular belief holds that field sobriety tests include counting backwards or reciting the alphabet; however, these actions are not approved as “reliable indicators” by the National Highway Traffic Safety Administration (NHTSA). While these actions may not be deemed as “standardized,” some law enforcement officers may request participation regardless. That being said, there are only 3 Standardized Field Sobriety Tests that are approved by NHTSA:
- The “Walk and Turn”
- The “One-leg Stand”
- The “Horizontal Gaze Nystagmus Test (HGN Test)”
- How do I decline to perform SFSTs?
If you choose to refuse, you may legitimately ask the officer if the tests have been proven to be 100% reliable. They will have to admit that the tests lack 100% accuracy. This minimal conversation may make your refusal seem justified when presented to a jury. However, it is very important to keep any conversation with the officer to a minimum as they will want to observe any action that might implicate you, e.g., slurring your speech or the odor of alcohol.
- Are Standardized Field Sobriety Tests proven as accurate indicators in determining drunk-driving?
The NHTSA has approved the preceding 3 field sobriety tests; however, these tests are frequently proven to be inaccurate. The 3 approved field sobriety tests are shown to be reliable only 70% of the times they have been administered. At Musca Law, we know that this percentage is less than remarkable and will ensure that the presiding judge and jury know that, as well.
- Are there other defenses that might negate the impact of SFST results?
Standardized Field Sobriety Testing must be conducting in accordance with precise and explicit instructions that must be demonstrated during a DUI investigation. While law enforcement officers are bound by these procedures, the bitter truth is that some are either careless or not properly trained when they administer SFST. Also, some motorists simply lack the ability to successfully perform SFST due to previous health, coordination or physical disabilities; which is hardly a reason to prescribe a DUI charge.
It is important to remember that SFST is frequently inaccurate as an indicator of inebriation. If you are arrested and charged with a DUI-related offense, it is imperative that you have a skilled Florida DUI defense attorney who will explain the inaccuracy of SFST to a presiding judge or jury. We encourage you to contact an experienced Florida DUI attorney who will work tirelessly on your case. If you or someone you love has been arrested or charged for a Florida DUI, the experienced Florida DUI attorneys at Musca Law have helped many people avoid the extremely harsh consequences of Florida DUI convictions. We invite you to contact a Florida DUI attorney at Musca Law to schedule a free confidential consultation: (800) 687-2252.
Tags: Florida DUI Attorney
Posted in Field Sobriety Tests | No Comments »
Wednesday, February 22nd, 2012
Field sobriety tests are used from state to state as a part of the officer’s DUI investigation. The idea of these tests is to help the officers determine whether or not you are impaired, and while there are many field sobriety tests which can legally be used, there are three standardized tests from the National Highway Traffic Safety Administration which are most commonly used. These include the Horizontal Gaze Nystagmus (HGN), the Walk and Turn and the One Leg Stand.
Even these three tests which have received the NHTSA’s stamp of approval have been found to be as much as 30% inaccurate. Other tests commonly used are the finger to nose test, the finger count test, reciting the alphabet forwards or even backwards, or the stand and balance test. At times officers will combine two tests by having you stand in one place with your head tilted back, then have you bring your fingers to your nose, alternating arms.
The goal of these field sobriety tests is to test a person’s agility, coordination, and whether or not they can follow instructions and perform the tests simultaneously. It is assumed that these skills are necessary when operating a motor vehicle, and that only a sober person will be able to pass the tests. Because of the wide margin of error, however, a field sobriety test may wrongly be used to convict someone of a DUI.
Did the Officer Determine You Were a Good Candidate?
Prior to administering the field sobriety tests, the police officer must ensure you are physically able to perform them. If you have any sort of physical disability, if you are over the age of 65, or if you are significantly overweight, then the officer should not require you to take the tests. The officer should also take careful note of the weather and terrain. If you would be required to walk on particularly rocky ground, ground that is uneven or goes uphill, or if the weather has dictated conditions which could alter your results on the field sobriety tests, then the tests should not be administered. Icy roads, wet road, or any other type of inclement weather would also prohibit the tests being given.
Instructions on How to Take the Tests
Once the officer has determined that your physical condition, the terrain and the weather are all conducive to your taking the field sobriety tests, he or she must give you clear instructions on how to take the tests. There should be plenty of light, but no lights shining directly in your face.
Why You Might Flunk the Tests, Even if You Were Completely Sober
The One Leg Stand which is done with you standing with feet together, arms at your side, then raising one leg approximately six inches from the ground. While you are attempting this feat, the officer will be looking for signs of unsteadiness, swaying, hopping, or using your arms for balance. The problem with this test is that a high percentage of stone cold sober people are unable to complete it satisfactorily. Anyone who has a history of ear or balance problems will quite likely be unable to “pass” this test.
The Horizontal and Vertical Gaze Nystagmus consists of following a light with your eyes while the officer checks for any sort of “unusual” eye movements. There are several eye conditions, glaucoma among them, which can prevent a person from performing well on the HGN tests. The Walk and Turn requires the person to take nine steps, heel-to-toe forward, then turning and taking nine back, with the theory that you must be able to multitask while completing this test, and in all reality, many adults are barely able to conduct one task at a time, and are hopeless at multi-tasking. Finally, the officer may have given you instructions improperly, or could have given them to you in a language you do not understand, leading you to perform poorly on the tests.
Don’t Agree to the Tests
It is not mandatory for you to ever take a field sobriety test, and you are allowed to (politely) refuse the tests with no fear of reprisals. Police officers rarely tell you the tests are not required because they want the evidence to use against you should the case go to trial. If you have been arrested for DUI based on field sobriety tests, then hire a knowledgeable Florida DUI attorney immediately. These tests can often be challenged successfully in court, however the officer and prosecution are hoping you are not aware of that fact.
Tags: Florida DUI Lawyer
Posted in Field Sobriety Tests | No Comments »
Tuesday, September 6th, 2011
One unjust form of testing is the fact that police officers target people during the early hours of the morning, approximately from midnight to 3:00am. It has been reported that during this time period, especially if the person is intoxicated, their circadian rhythm is drastically off. The circadian rhythm is what each human has inside of them, and is mainly realized when one experiences a severe form of jet lag.
When a person’s circadian rhythm is off, along with their intoxication, it is much easier for them to fail a field sobriety test when administered by a law enforcement officer. Police officers are acutely aware of this fact, and that is why most DUI charges occur in the early hours of the morning, because police officers know people will not do as well if given a field sobriety test.
This fact is ridiculous. Law enforcement officers should not be allowed to chiefly give driving under the influence charges at night just because they know it will be easier for people to fail the sobriety test. It has been proven by many British psychiatrists that people are weaker in the mornings and less coherent because their circadian rhythm has not had time to get adjusted. Law enforcement officers have also been found to selectively sit at bars and wait for people that they know are drunk to drive off so they can pull them over. This is appalling.
Even though driving under the influence is wrong, it is not acceptable for a police officer to wait on them outside of a bar. It is illegal. Even if the police man pulls the car over, the intoxicated party might have a designated driver, and then the law enforcement officer would just be wasting their, and his time because he was too lazy to go run radar and watch for careless drivers on a highway. It is never a good idea to drink and drive because the drunken party not only puts themselves at risk for a driving under the influence charge, but they also put their lives in the balance as well as other drivers on the road.
Even though many of the officers may mean well by waiting outside of a bar to catch someone they know is drunk, it is still illegal for them to be lurking outside of a bar just waiting to write someone up for with a DUI charge.
Call 1 800-687-2252 to Speak With a Florida DUI lawyer In Your Area.
Hiring a Florida DUI attorney to aggressively defend you can help you obtain the best possible result in your case. Call our toll-free, Florida DUI Advice Helpline at 1 (800) 687-2252 for a Florida DUI law firm near you (by appointment only).
Posted in Field Sobriety Tests | No Comments »
Monday, September 5th, 2011
The techniques that law enforcement officers use to test people for driving under the influence of alcohol are largely based on a stereotypical “average” person. This fact has long been under dispute because it is unfair to compare people, who are so physiologically different from each other, to one assumptive “average” norm. One other normality that has to be taken into account is the fact that everyone’s body temperature changes throughout the day.
With that being said, it is a recently discovered fact that a person’s body temperature can affect the results of their breathalyzer test that was administered to them by a law enforcement officer. Since no one’s temperature is the same, it is just one more reason for a breathalyzer test to read inaccurate results. It has been proven that if a person’s temperature has been raised just one degree, it can increase the reading on the breathalyzer by seven percent.
This proves that the higher the body temperature a person has, the higher their breathalyzer test will read. So, just because their body temperature is high, it does not mean that they are intoxicated—but the test will say they are. It has even been disputed that what is commonly known as the average temperature of the human body—ninety-eight degrees Fahrenheit, actually varies by at least one degree from person to person. This means the likelihood of someone having an inaccurate reading on a breathalyzer test is unfortunately quite high.
Furthermore, not only does the temperature of the human body vary from person to person, it varies for each person on an individual basis throughout the day. Each person’s own body temperature is fluctuated by at least one degree centigrade throughout the course of one day. This fluctuation also means that the alcohol in a person’s blood stream is altered throughout the day as a result; which would make testing with a breathalyzer grossly inaccurate.
It is safe to say that breathalyzers have many reasons to give inaccurate readings because no one is one-hundred percent sure what the correct “average” is for the human body temperature since in fluctuates consistently. It is also safe to imply that breathalyzers have too many reasons to give an inaccurate reading, and that the cons of the breathalyzers far out weigh the pros. With that said, it is a valid statement to say that breathalyzers should not be used as the final judgment to give someone a driving under the influence charge.
Call 1 800-687-2252 to Speak With a Florida DUI lawyer In Your Area.
Hiring a Florida DUI attorney to aggressively defend you can help you obtain the best possible result in your case. Call our toll-free, Florida DUI Advice Helpline at 1 (800) 687-2252 for a Florida DUI law firm near you (by appointment only).
Posted in Field Sobriety Tests | No Comments »
Thursday, July 7th, 2011
If you are subject to a Florida DUI investigation, the officer will typically conduct Field sobriety tests (FSTs). FSTs will be conducted prior to any chemical testing of blood alcohol level in most cases. Field sobriety testing is subject to very strict procedures to ensure the highest level of accuracy. While these tests are often used to identify intoxicated drivers, they are highly subjective and often unreliable.
There are only three field sobriety tests that have been approved by the National Highway Traffic Safety Administration (NHTSA) for DUI investigations in Tampa or elsewhere in Florida. Many times officers will use non-standardized tests that have not been approved by the NHTSA even though non-standardized tests have not been sanctioned as reasonably reliable indicators of intoxication. The three approved tests are the walk-and-turn, horizontal nystagmus test and the one leg stand test.
FSTs require evaluation of one’s ability to follow instructions as well as a driver’s balance and coordination. These types of tests are called Divided Attention Tests. They require a driver to focus on multiple tasks simultaneously. They force a driver to divide his or her attention between mental and physical tasks. This series of physical tasks are based on research suggesting that a person who is under the influence of alcohol cannot focus on both sets of tasks at the same time. A driver who is impaired by alcohol will typically make certain predictable errors while performing these tasks.
Officers who use field sobriety tests are expected to successfully complete training that complies with very specific guidelines. The process of conducting the tests also requires that officers precisely follow procedures, provide driver’s specific instructions and demonstrate the tests for the driver. Many officers fail to comply with these requirements or have inadequate training or experience, which means the results may be suppressed or effectively contested at trial.
Even if a Florida police officer is properly trained and conducts the FSTs flawlessly, the error rate for the 3 approved FSTs is astoundingly high. The three approved and validated field sobriety tests are only between 65 to 77 percent accurate at correctly identifying drivers under the influence of alcohol. It is important to remember that the prosecutor in a Tampa DUI prosecution has an obligation to prove your guilt “beyond a reasonable doubt.” Field sobriety testing will incorrectly identify one driver as over the legal limit of .08 percent BAC for every three or four drivers tested. This is not remotely sufficient to satisfy the prosecutor’s evidentiary standard for proving guilt in a Florida DUI criminal case.
The point to take away is that there are many defenses that may prevent a Tampa DUI conviction. While it may be worthwhile to simply plead no contest to some minor traffic offenses, this is not the case with DUI charges in Florida. DUI is a serious criminal offense that can have far reaching consequences beyond the severe penalties that are immediately imposed.
If you are charged with DUI in Florida, you should seek the advice and guidance of an experienced Florida DUI defense lawyer. Our dedicated and committed Florida DUI defense attorneys have assisted many residents of Florida charged with DUI so call today.
Tags: charged with DUI in Florida, Florida DUI defense attorneys, Florida DUI defense lawyer
Posted in Field Sobriety Tests | No Comments »
Wednesday, July 6th, 2011
With the Fourth of July weekend approaching, there will be a spike in the number of DUI arrests because of stepped up DUI patrols, DUI checkpoints and other aggressive DUI enforcement activity. Few things can turn a holiday celebration into a bitter experience more effectively than a Florida DUI arrest. The penalties for a Florida DUI criminal conviction may include jail time, substantial fines, probation, drunk driving school, ignition interlock installation, driver’s license suspension and more. It is easy to feel like these penalties are inevitable and resign oneself to pleading guilty and putting your Florida DUI arrest behind you quickly without a prolonged fight.
This can be a serious mistake because DUI charges are open to a broad spectrum of defenses. Given the severe penalties and potential lifelong consequences of a DUI conviction on career, educational and housing opportunities, it is never a good idea to simply concede a conviction. A DUI case is complex and technical which creates many strategies for mounting an effective defense including challenges to the observations and conduct of the arresting officer.
While most law enforcement officers are honest and conscientious in performance of their job duties, sometimes they make mistakes or cut corners. There are cases where the officer may not have had sufficient grounds for the initial stop. If the officer does not have a sufficient legal basis to stop you, then we may be able to file a motion to suppress all the evidence against you including observations made by the officer after the initial stop, incriminating statements and field sobriety and blood alcohol testing.
Even if there is a valid basis for the initial stop, the officer may make mistakes or fudge the facts during the course of the stop. There are even cases where officers use templated reports with critical facts like observations upon which they base their DUI investigation being pre-printed or added by rote between an officer’s reports. Sometimes the officer’s report also may have inconsistencies. Where there are multiple officers, there may be conflicting factual accounts between them that make their observations suspect.
Many officers lack proper training or may have a disciplinary history that leaves them open to challenging their accuracy or veracity. Officers that lack proper training may make critical mistakes such as not following appropriate procedures in conducting and scoring field sobriety tests (FSTs). FSTs have a high margin of error even when conducted perfectly. When an officer has not been properly trained, the officer may fail to give instructions properly, demonstrate the tests sufficiently or score the tests properly.
If you have been charged with DUI in Florida, our experienced Florida DUI defense lawyers diligently investigate and review any observations or procedure by police to identify inconsistencies, errors or inappropriate deviations from acceptable procedures. Our experienced Florida DUI defense attorneys are prepared to aggressively challenge such errors and inconsistencies as part of our goal of providing the most effective DUI defense for our Florida DUI clients.
Tags: DUI in Florida, experienced Florida DUI defense lawyers, Florida DUI defense attorneys, Florida DUI defense lawyer
Posted in Field Sobriety Tests | No Comments »
Tuesday, May 17th, 2011
A Florida police officer must have reasonable suspicion that a driver is under the influence of alcohol to justify detaining a driver and requesting that the driver submit to field sobriety testing. The usual police observations that officers recite almost as a memorized litany are the smell of alcohol; glassy, bloodshot and watery eyes; and slurred speech. There are even incidents of officers using templated reports with these observations already pre-printed on the police report. This issue is important because if the officer does not have a sufficient legal basis to request that a driver submit to FST’s, then evidence obtained during the DUI investigation including FST results and portable breath test results may be subject to suppression. Without the evidence that is obtained in a DUI investigation, prosecutors typically will have a difficult time obtaining a DUI conviction and may be inclined to dismiss or substantially reduce any pending Florida DUI charges.
In the case of State v. Ameqrane, 39 So. 3d 339 (Fla. Dist. Ct. App. 2d Dist. 2010) the prosecution appealed a decision granting a defendant’s motion to suppress FST results. Defendant was charged with driving under the influence and escape from law enforcement custody. Defendant argued that the smell of alcohol and bloodshot eyes were insufficient to establish reasonable suspicion to conduct any field sobriety testing. The trial court concluded the police officer that conducted the traffic stop did not have a basis for reasonable suspicion that defendant’s faculties were impaired, which would justify the officer’s request for field sobriety testing. The appellate court disagreed and indicated that the police officer testified that he observed defendant speeding at four o’clock in the morning. The appellate court found that this was sufficient along with the observations regarding the smell of alcohol and glassy bloodshot eyes to initiate FST’s. The officer asked the driver to perform the horizontal gaze nystagmus (NST) field sobriety test. The officer found that the driver’s eyes were jerky and bouncy and concluded that the driver had consumed “quite a bit” of alcohol. The court concluded that this was sufficient to request further field sobriety testing.
To request that a driver submit to field sobriety tests, a police officer must have reasonable suspicion that the individual is driving under the influence, State v. Ameqrane, 39 So. 3d 339 (Fla. Dist. Ct. App. 2d Dist. 2010). This means that the facts surrounding the administration of the test must be sufficient to provide a foundation for reasonable suspicion by the police officer. The bottom line is that an officer must have some factual basis to form reasonable suspicion and justify asking a Florida motorist to submit to field sobriety testing. If the officer does not have sufficient legal basis to request such FST’s, then any evidence obtained during the subsequent DUI investigation at the scene may be subject to exclusion. Our Florida DUI lawyer may be able to challenge the legal sufficiency of the officer’s DUI investigation in your case. If you or someone close to you has been arrested for DUI in Florida, you should contact us today so that we can help you understand your legal rights and potential defenses.
Tags: Florida DUI Lawyers
Posted in Field Sobriety Tests | No Comments »
|
 |
|
|
