1. Field sobriety tests (walking a straight line, balancing, reciting the alphabet, etc.): 39%
2. Breathalyzer or breath test at the scene: 31%
3. Blood, breath or urine sample at the police station: 25%
4. I don’t know: 5%

According to these statistics, the vast majority of tests administered are the tests you don’t have to do. Considering how little most people know about their rights this is not surprising.

Blood, breath, or urine samples at the station or local hospital are generally the only tests required in a drunk driving arrest. A small sample of states penalize drivers for failing to perform tests at the scene, but usually no driver can be compelled to do anything until after they are arrested. If the 70% of people who willingly performed tests at the scene knew how rigged these tests were in favor of the police, perhaps they would join the 25% of people who refused to do anything until they were arrested and dragged downtown?

Consider: a professor at Seton Hall made his sober students perform a set of field sobriety tests commonly used in drunk driving stops. (Tests such as walking in a straight line, counting with your fingertips, etc.) He showed a video of these tests to a group of police officers.  They said they would arrest more than half of the students.

Furthermore the National Highway Traffic Safety Administration recognizes only three field sobriety tests as scientifically valid in showing that someone is above a certain blood alcohol limit. (The NHTSA does not actually say these tests show someone is too drunk to drive; only that there is a probability that the person is above a certain blood alcohol level). None of the probabilities for accuracy in these tests rises above 77%.

To muddy the issue further, police officers routinely use other tests not sanctioned as “standardized” by the NHTSA, or render the tests completely useless by flouting the rules for conducting them altogether.

Now don’t take this the wrong way. No one should be looking for ways to get out of a drunk driving charge, and no one should really be getting behind the wheel if they’ve been drinking. On the contrary, people who never get behind the wheel after drinking are the ones who should be extremely cautious about doing field sobriety tests. As the above data shows, sobriety is no guarantee that you will actually “pass” any of these tests.

In sum, there is another maxim people should remember besides the sage advice of “Don’t drink and drive.” If you are sober, don’t perform field sobriety tests!

Most Common Tests in Drunk Driving Stops is a post from: LegalMatch Law Blog

Most people have heard of a .08 blood alcohol content (BAC) limit, and will somehow assume this has something to do with driving drunk. In reality the law varies by state to state. (How many times have you heard that?) Some states have higher legal limits than others, or laws that do not require a blood alcohol measurement for conviction.

The following lists the most common BAC levels cited by the thousands of LegalMatch customers looking for a drunk driving attorney last year, in order of frequency: 

• I don’t know: 24%
• .10 to .15: 20%
• No test given: 16%
• .16 to .20: 12%
• .08 to .09: 9%
• .21 or more: 7%
• .07 or less: 7%

There is an easy joke here about not remembering what your test score was for driving drunk. I will eschew it as a matter of editorial professionalism. There are a variety of reasons besides inebriation for not knowing what the test results were.

My interest lies in the 7% who were pulled over and arrested for being below a .07%. The reason most states utilize a .08% blood alcohol level is because of studies showing a significant drop off in a person’s ability to drive with a .08% or above BAC. Prosecuting the offense follows a familiar pattern: introduce the reading, introduce the expert, and introduce the findings damning the defendant to the nether-regions of presumptive guilt-purgatory.

But what about the tee-totaling .07 percenters?  Presumably their state still allows for their prosecution. In California, for instance, you can be prosecuted either for being above a .08%, or for driving “while under the influence.” In English, that means that you were so under the influence that your ability to drive was impaired.

Even though the defendant can technically still be guilty of a crime, anything below a .08 BAC in a state like California will always be used by the defense. Why? Because jurors expect a .08 reading or above. It is akin to the CSI effect: jurors expect police investigations to have fancy forensic scientists with super-technologically advanced super-computers that can recreate three dimensional representations of a crime scene piece by piece. Which of course is a complete fantasy.

For whatever reason, jurors come into the court with a preconceived notion that drunk driving means driving above a certain level, usually .08%. The truly rational left brained jurors might be able to completely shed this preconception. The majority of jurors, on the other hand, are skeptical of a test below .08%, or the absence of a test at all. Throw in error rates and the fuzzy science often relied upon by prosecution experts as “proof” that field sobriety tests show impairment, and the prosecution usually has a loser on its hands.

Most Cited Breathalyzer Results for Drunk Driving Arrests in Past Year is a post from: LegalMatch Law Blog

• Weaving / reckless driving: 24%
• Speeding: 20%
• Accident: 19%
• No reason given: 10%
• I don’t remember: 10%
• Vehicle non-compliance (expired registration tags, no headlights, etc.): 9%
• Sobriety check point / roadblock: 4%

The vast majority of stops were for weaving or reckless driving, generally considered the most obvious indicator of a drunk driver, but it doesn’t have to be alcohol related. Speeding, for instance, happens all the time and does not indicate drunkenness. Not having current registration tags certainly is not evidence of being drunk. Accidents are more likely with intoxicated drivers, but happen regardless of whether a driver is inebriated.

Is it unfair that people are pulled over for reasons unrelated to their crime? Maybe, but the issue of the “pre-textual stop” is well settled: police officers can pull you over for whatever they want, and arrest you for whatever they happen to lawfully find while you are stopped. (Keyword here is lawfully). Years ago in the case of Whren v. United States, the Supreme Court unambiguously stated that a pre-textual stop was constitutional. 

The multitude of vehicular codes makes it impossible to conform to all of them at any given time. If an officer’s ulterior motives in pulling you over are irrelevant, rules of the road become an easy target of police officer abuse. Our highways are essentially a giant magnifying glass, under which you have very little privacy.

I suspect, however, that not dying while you are driving outweighs your need for privacy in your car. For that reason I doubt many of us are shedding any tears over the plight of drunk drivers. I also doubt any of us would have much resistance to the honest enforcement of vehicle laws that are meant to make us all safer.

In the end, if an officer’s intent could be taken into account at a DUI motion to suppress, you would just hear a lot more lying going on in court rooms. “Well I just wanted to give him a speeding ticket, and imagine my surprise when I smelled the odor of marijuana!” Even though it may seem unfair to allow pre-textual stops, in reality limiting them may be impossible.

Top Reasons for Drunk Driving Stops is a post from: LegalMatch Law Blog

The move is controversial due to the invasive nature of the devices, but there is something that critics of the devices nonetheless admit: they work. The devices also may have a predictive function, allowing courts to better foresee repeat offenders. According to a study in Alberta, Canada, there was a strong correlation between the proportion of failed breathalyzer tests and an offender’s chances of being convicted of a DUI again. A California study showed that within 120 days of having the interlock device installed, first time offenders were at lower risk of having an accident than those without the devices.

But what about the 1.5 million people arrested for their first drunk driving offense each year? Ignition interlock devices may prevent a second occurrence, but too often it is the first offense that ruins a life and ruins a family. Is there a way to reduce this number?

Although preventing repeat DUI offenses is important, spotting and treating the warning signs of alcohol abuse early could help lower the amount of intoxicated drivers on the road. According to National Statistics reported by the California DMV, over 75% of drunk drivers were either frequent drinkers or alcoholics. Short of a Minority Report-esque future however, how can courts prevent these people from committing their first DUI defense?

Some, if not most, of first time offenders with alcohol abuse problems must have a past criminal history related to alcohol or drug use. Across the country, drug courts already address drug use as a health problem by focusing their efforts on rehabilitation rather than punishment. Hybrid DUI/Drug courts for repeat offenders boast recidivism rates as low as 4%, a startlingly low number compared to national averages. These programs prove that addressing alcohol abuse is an effective means of preventing future DUIs.

Although these hybrid DUI/Drug courts are for repeat offenders and offer programs far more invasive than an ignition interlock device, their underlying principle is the key: treat the underlying behavioral health issue of alcoholism and irresponsible alcohol use. Perhaps a solution to curbing first time offenders, therefore, is the recognition that a lesser offenses, such as a minor in possession or public intoxication, can be warning signs of a future propensity for something such as a DUI. Many states already offer various rehabilitation programs for these offenses. Many also do not, and not much scholarship exists on the effectiveness of those that do. If statistics showed a significant correlation between certain past offenses and DUI convictions, steps can be taken in the sentencing and rehabilitation of these lesser crimes to try and address future alcohol abuse.

This is not a call for harsher penalties on minor offenses. Instead, courts should take a more sophisticated approach with sentencing that focuses on alcohol dependency and behavioral issues. In many ways, extending the drug court paradigm further to more alcohol related offenses (although perhaps not in as invasive as that for repeat DUI offenders) may nip the greater DUI problem in the bud.

Illinois Grabs the Wheel from First Time DUI Offenders is a post from: LegalMatch Law Blog