by James F. Bogen
With the July 4th weekend right around the corner, this would be a good time to discuss a few things about DUI cases. I keep getting detailed questions about the issue of refusing to take the breathalyzer test, the accuracy of Standardized Field Sobriety Tests (SFSTs), and how much of a difference it can make having an attorney who is familiar with them.
I will begin with the subject of refusing to take the breathalyzer test. Generally, many attorneys would advise people who are pulled over on suspicion of DUI to politely refuse to take any tests before consulting an attorney. If you are in this situation and you choose to call an attorney, you need to be completely honest about your drinking in the time period before you started driving. We tend to use standard charts that factor together the number of drinks consumed, body weight, and the duration of the drinking period in order to try to best advise people as to what their blood-alcohol level may test at if they took the breathalyzer test. These charts are useless if a person is not truthful about how much they have had to drink.
If you are pulled over on suspicion of DUI and you decide to refuse to take the breathalyzer tests, you also need to refuse to take any other tests or make any statements about whether or not you have been drinking. You also need to be absolutely sure that you have not made mistakes such as stupidly dropping your wallet when you take out your license, stumbling when you get out of the car, or anything else that would be interpreted as a sign of intoxication. You also need to realize that refusing to take these tests will not magically make your DUI case go away. Prosecutors like to get tough on these cases particularly when people refuse to take any tests. The only way you will get out of a DUI charge under any circumstances is by fighting it in court, and you need to plan to spend the money to hire a good attorney.
As far as the SFSTs, the training manual put out by the National Highway Traffic Safety Administration (NHTSA) clearly states: “If any one of the standardized field sobriety test elements is changed, the validity is compromised.” Let’s look at the validity of these tests in a best-case scenario.
The first test, the Horizontal Gaze Nystagmus (HGN), is the test that looks for involuntary jerking of the eyes as they move side to side. According to NHTSA studies, this test is 77% accurate as a way of determining whether somebody has a blood alcohol level of over .10. The second test, the Walk and Turn, has an accuracy of 68%. The third test, the One-Leg Stand, has an accuracy of 65%. The accuracy of the Walk and Turn and The One-Leg Stand combined is 80%. Now what do you think of this margin of error? On a side note, if I was to perform these tests on a sober person right now, I can tell you that it is very likely that this person would have a very god chance of making enough scorable mistakes on them to be considered intoxicated.
MORE THINGS YOU NEED TO KNOW ABOUT DUI CASES
In any municipal court in Ohio on any given day, you will see a significant number of people charged with DUI who choose to just plea as charged without an attorney. What many of these people do not realize that the penalties for a DUI in Ohio are far more than they are for just a simple traffic ticket, and the consequences can be more far-reaching than for most misdemeanors. A DUI is a criminal conviction that cannot be expunged (meaning it stays with you for the rest of your life), and it must be disclosed on job, housing, and financial applications. DUI is a First-Degree Misdemeanor, which is the highest level for a misdemeanor in Ohio--one level below a felony. Defendants who plea as charged without an attorney often do not realize the full impact their decision until it is too late, and the consequences may include mandatory jail time, fines, possible loss of driving privileges, possible vehicle forfeiture, embarrassing yellow license plates and higher insurance premiums.
Obviously, the consequences are more serious if you have a subsequent DUI. That is why you want to do it right the first time if you are unfortunate enough to be charged with one. There are often issues to address regarding whether or not the field sobriety tests were administered correctly. Any knowledgable DUI attorney knows that if these tests are not administered correctly, they can produce inaccurate results that can lead to an improper DUI charge, the equivalent of a false-positive for a medical test. However, the problems with DUI cases do not end there. There are also quite a few ways that a knowledgeable DUI attorney may be able to undermine the breath test results, including:
1. The test was not administered correctly; for example, the officer did not warm up the machine to the correct operating temperature or ensure an adequately deep lung sample.
2. The officer was not properly trained or qualified to operate the breathalyzer.
3. The breathalyzer was not calibrated or maintained properly.
4. The result was affected by some characteristic of the driver, such as age, lung function, overall strength and size, a condition such as asthma, diabetes, eardrum rupture, ketosis, emphysema, bronchitis, shock or trauma, or hiccoughing, burping, vomiting or hyperventilating.
5. The defendant was exposed to a gas or vapor before the test, such as vapors from painting, floor sanding, varnishing or other activity with chemical exposure.
6. A product that can affect the result was used in the driver's mouth, such as mouthwash or adhesive. Mouthwash will actually make the interlock devices on cars prevent them from being started.
There are more ways that the breath test results can be called into question, but they are too numerous to list here. Combined with the issues surrounding field sobriety tests, you can see why there are plenty of reasons you don't want to go to court without a knowledgeable attorney if you are charged with a DUI. There are too many things that need to be looked at in these cases. It is definitely not cheap to get your DUI case properly evaluated and possibly fought in court by a knowledgeable attorney. However, the consequences are more far-reaching than just the money you would save by going into court without an attorney or with a cheap attorney and entering a plea as charged.
THEREFORE, If you are arrested for DUI, you need to hire an attorney who is capable of evaluating whether these tests were administered properly. As I mentioned, if these tests are not administered in substantial compliance with NHTSA rules, they must be thrown out. A good DUI attorney is one who is familiar with these rules and is willing to put in the work to hold the prosecution to their standard of proof in court. I will tell you right now: attorneys like this are not cheap, nor should they be. If you are arrested for DUI and you want to hire a cheap attorney who will do nothing but stand next to you while you plead guilty as charged without having your case properly evaluated, that is your prerogative. However, you should think of it this way: if you needed an important operation, would you just settle for the cheapest surgeon you could find, or would you want one who has the knowledge and work ethic necessary to perform that operation properly?
With DUI cases, there is more at stake than just a fine. Your freedom is in jeopardy, your standing with you auto insurance company can be damaged, you may have trouble finding a job, and you may lose your ability to drive for an extended period of time. Given the issues I raised above, if you got a DUI would you really want to just fold your cards without having your case properly evaluated?
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