At every DUI arrest, officers plainly state that the defendant has a right to refuse the Breathalyzer test. Nevertheless, the vast majority of drivers provide a chemical sample. Officers do not emphasize this point, so many people may just miss that part of the statutory warning. Other people may worry that their refusal could be used against them in court. Until recently, that would happen.
Olevik v. State
But 2017’s Olevik v. State changed the rules. In this case, the Georgia Supreme Court ruled that people have an absolute right to refuse the Breathalyzer test and their refusal is inadmissible in court. So, if you have had anything to drink, there is really no reason to take a Breathalyzer test. Even if you take the test and pass it, you can still be arrested for, and convicted of, DUI.
Arguably, Olevik also applies to a Field Sobriety Test refusal. Yet many people agree to perform these tests. That may be because they do not know they have a right to refuse. Doing exercises is like answering questions. You do not have to do either one. There’s another reason to refuse the FSTs, aside from exercising your rights. In some jurisdictions, the conviction rate in complete refusal cases is as low as 35 percent. By comparison, the conviction rate in chemical test cases is often around 90 percent.
The conviction rate in chemical test refusal cases is about 45 percent. The rate is so much lower because the FSTs are incredibly subjective. That subjectivity makes it very difficult for Cobb County prosecutors to prove guilt beyond a reasonable doubt.
Unapproved Field Sobriety Tests
The National Highway Traffic Safety Administration has approved a three-test battery. The results are always admissible in court. Yet many Marietta-area law enforcement officers require defendants to perform unapproved tests, like the finger-to-nose test or reciting-the-ABCs test.
In baseball, the pitcher often throws to first base if there is a runner on first. If the runner must repeatedly dive back to base, the runner gets tired. If he tries to steal, he may be a step slower. That difference gives the catcher a better chance of throwing out the runner. Officers administer unapproved FSTs for the same reason. These tests fatigue defendants both mentally and physically. So, they do not do as well on the tests that really count. Therefore, a Cobb County jury is more likely to believe they are intoxicated.
It’s very important that a criminal defense attorney explain all this to the jury. For one thing, they will take that fatigue into account when evaluating the three FSTs. Moreover, the jury will see that the officer tried to “set up” the defendant. That makes the officer, and the prosecutor, look bad.
As the name implies, in the WAT, the defendant must walk a straight line heel to toe. The WAT is a divided attention test which measures both mental acuity (ability to follow directions) and physical dexterity (balance). Alcohol interferes with both. In fact, from a scientific perspective, intoxicated people cannot multitask in this way.
During the WAT, which is also known as the heel-to-toe walk, officers look for clues of intoxication at the following points of the test:
- Beginning the test before the officer says “start,”
- Taking the incorrect number of steps
- Failure to walk in a straight line
- Using arms for balance
- Failure to walk heel-to-toe
- Ending the test before the officer says “stop.”
Each footfall is a potential clue. Since most defendants must take thirty steps (fifteen in each direction), the defendant could do very poorly on this test. There are some issues with the WAT. Overweight people, older adults, or individuals with any mobility impairment could probably not pass this test whether they are drunk or sober. Furthermore, there is a significant difference between walking an actual line, like a parking lot stripe, and walking an imaginary line. It’s a lot easier to walk in a straight line if one can see the line.
One Leg Stand
Like the WAT, the OLS is a divided attention test. In this test, officers tell defendants to elevate one leg at a certain angle for a certain amount of time and then set it down. Some intoxication clues include:
• Lifting the wrong leg,
• Holding the leg at an incorrect angle,
• Swaying or shifting weight,
• Using arms for balance, and
• Setting the leg down too early.
Typically, officers do not tell defendants how long they are supposed to hold their legs up. So, they often run out of energy toward the end and allow their legs to drop slightly. That’s an intoxication clue. But that method is very sneaky. It’s like telling someone to climb stairs, not telling them how many there are, and then criticizing them for getting tired toward the end. Test conditions are often a factor as well. For example, squad car overhead lights have a disorienting effect. That effect could affect the defendant’s balance.
Horizontal Gaze Nystagmus
Unlike the OLS or WAT, the HGN test is not a divided attention test. Instead, it’s a medical examination. The defendant must follow a point, such as a fingertip, using only his/her eyes. If the pupil moves involuntarily at certain angles, there is about an 80 percent chance that the defendant has nystagmus. However, that 80 percent figure assumes that a highly-qualified test administrator conducted the test in a controlled environment. Marietta police officers usually learned everything they know about HGN at a brief, police-sponsored seminar. Moreover, the conditions at a roadside DUI stop are far from controlled.
There’s another problem with the HGN. Alcohol is not the only cause of nystagmus. As a matter of fact, it’s not even the leading cause of nystagmus. That distinction belongs to an infant or early childhood neurological condition. Additionally, this kind of nystagmus is so mild that it may only present when the person is under stress. Few situations are more stressful than a DUI arrest. So, the defendant may have nystagmus and not even know it.
Work with a Tenacious Lawyer
The subjective nature of FST results makes it difficult for prosecutors to meet the burden of proof in these cases. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. Home and jail visits are available.