Las Vegas DUI Tests
A DUI test will aid a police officer in determining if a person is in violation of a DUI and assist in building a case against you. Several of these tests are famously known as field sobriety tests. While they are made the butt of many jokes, the commission of a DUI is no laughing matter. Actually several of these tests have been found to in no way indicate whether or not a person is indeed intoxicated. There is also a notion that the tests provided are, by design, seeking for you to fail at them. Your Las Vegas DUI attorneys may advise you that you should refuse to take field sobriety tests [FST].
The standardized field sobriety tests were formulated in the 1970’s by a government grant. The research was done by the government and the purpose of them was to give the prosecutor one more tool to add to their arsenal to help them get gain DUI convictions.
Scientific studies show that 95% of these tests are wrongly administered.
There are 3 areas you will be tested in to determine your level of sobriety. You may not actually be required to perform in all three areas of testing.
Field Sobriety Test
The Drink Wheel
On-Line BrAC Calculator
Courtesy of Intoximeters Inc.
Field Sobriety Test
The decision to arrest is made at the driver’s window; the FSTs given is to determine probable cause to arrest are for the purpose of gathering more evidence.
Given that the officer has already decided to arrest, his now subjective decision as to whether a person passed or failed field sobriety tests is suspect: since he is now biased on whether or not a person is too drunk to drive, he will "see" what he expects to see.
According to many academic and scientific sources the field sobriety tests, as taken under extreme conditions, almost guarantee failure: usually late at night, possibly cold, along a graveled or sloped roadside, with bright headlights from passing cars (setting up wind waves), the officer’s flashlight and patrol car’s strobe and headlights providing the lighting — and given to a person who is nervous, frightened and completely unfamiliar with the tests.
According to many academic and scientific sources field sobriety tests are irrelevant and designed for failure. What scientific basis exists to validate FSTs in a DUI investigation? Only a "study" by a private business firm, the "Southern California Research Institute", with a grant from the federal government to find a "standardized" battery of usable DUI tests.
SCRI came up with three tests which, they said, were not foolproof but were much better than all of the other FSTs that were being used. Yet after some study even this company concluded that, using the three standardized tests, 47 percent of the subjects tested would have been arrested for DUI — even though they were under the .10% limit. (Burns and Moskowitz, Psychophysical Tests for DWI Arrest: Final Report, DOT-HS-802-424, NHTSA, 1977.)
The company was sent back to the drawing board and, in 1981 came up with some better figures: only 32 percent of those who "failed" the tests were actually innocent. (Tharp, Burns and Moskowitz, Development and Field Sobriety Test of Psychophysical Tests for DWI Arrests: Final Report, DOT-HS-805-864, NHTSA, 1981.) Well, SCRI was paid to put their stamp of approval on a set of field sobriety tests.
In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink and drive". Unknown to the officers, the blood-alcohol concentration of each of the 21 DUI subjects was .00%, stone sober.
The results: the officers gave their opinion that 46% of these innocent people were too drunk to drive! In other words, the field sobriety tests were hardly more accurate at detecting intoxication than flipping a coin. Cole and Nowaczyk, "Field Sobriety Tests: Are they Designed for Failure?", 79 Perceptual and Motor Skills Journal 99 (1994).Such tests include but are not limited to:
Horizontal gaze nystagmus test (following an object like a pen or finger from side-to-side with your eyes): [concerning the HGN: The Horizontal Gaze Nystagmus (HGN) test was conceived, developed and promulgated as a simple procedure for the determination of the blood alcohol concentration of drivers suspected of driving while intoxicated (DWI). Bypassing the usual scientific review process and touted through the good offices of the federal agency responsible for traffic safety, it was rushed into use as a law enforcement procedure, and was soon adopted and protected from scientific criticism by courts throughout the United States. In fact, research findings, training manuals and other relevant documents were often held as secrets by the state. Still, the protective certification of its practitioners and the immunity afforded by judicial notice failed to silence all the critics of this deeply flawed procedure….
In 1998 the integrity of the statistical evaluation of the original research upon which the validity of the tests rested was unfavorably reviewed . In 2001 new research indicated that the Horizontal Gaze Nystagmus (HGN), the cornerstone of the test battery was fundamentally flawed and that the HGN test was improperly conducted by more than 95% of the police officers who used it to examine drivers suspected of driving whileintoxicated (DWI) . This summary critique demonstrates that it is scientifically meretricious and that the United States Department of Transportation indulged in deliberate fraud in order to mislead the law enforcement and legal communities into believing the test was scientifically meritorious and overvaluing its worth in the context of criminal evidence….
One leg standing test: In order to perform the One Leg Stand test, it must be performed on a hard, dry, level, non-slippery surface. Conditions must be such that the DUI suspect would be in no danger if he or she were to fall. Certain wind or weather conditions obviously may interfere with and affect the validity of this test. This test should not be given to persons who are more than sixty-five years of age, more than fifty pounds overweight, or those individual who have physical impairments that interfere with balance and coordination. Individuals wearing heels more than two inches high should be given the opportunity to remove their shoes prior to performing the test, as this may diminish the reliability of the test's results. It is imperative that the police officer observe the DUI suspect from at least three feet away, and remain as motionless as possible while the suspected drunk driver is performing the test. If this is not done, it may interfere with the test and ultimately affect the results and validity.
You will be instructed to stand with one foot (which ever foot you choose) six inches off the ground, while counting aloud by thousands (One thousand-one, one thousand-two, etc.), until told to put your foot down. You will be timed for 30 seconds.
During the One-Leg Stand, the officer will be looking for four different "clues," or indicators of impairment:
- Sways while balancing. (the "acceptable" amount of sway is about 3 inches in each direction, but officers will not ever measure exactly your sway and if you move at all you will most likely have it counted against you regardless of the amount).
- Uses arms to balance. (inherent human nature is to put your arms out 90 degrees from your body helicopter style, but if you do you will "fail," as you are supposed to follow the instructions and keep your arms by your side the entire duration of the exercise).
- Hops to maintain balance. (whether you hop once or the entire time it counts against you the same).
- Places foot down. (even if just once, its a big no-no, and you won't think you have failed because the officer will instruct you if you do put it down to just pick it back up and keep counting, giving you a false sense that its actually possible to put your foot down and still "pass" the test).
Walk a straight line and turn test: you will be instructed to take nine steps heel-to-toe along a straight line. You will then turn on one foot (usually by taking small steps in a circle with your other foot) and take nine steps back down the line heel-to-toe.
While they are giving you the instructions, before the test has even begun, the police will tell you to put one foot on the line, with the other foot directly in front of it (like you are walking on a tight-rope in the circus). They tell you to remain in that uncomfortable position while they explain to you the instructions (how many steps you are going to take, when and how to turn, etc.). The instructions can last up to a few minutes, and often the officer will demonstrate for you what you will be asked to do. What they are NOT telling you, however, is that if you move your feet from that heel-to-toe position during the instructions, they will count that against you. That's right - they count it against you as a "clue" or "cue" - an indicator you are impaired. And i'm not talking falling down wasted. If you even move your foot from that abnormal stance back to a normal, standing position, the officer will mark it down - and actually say that you "lost your balance" during the instructions.
There are a total of 9 possible clues, based on 8 indicators of impairment that are being scored. If the officer observes any of the following, they will mark it down and it will be counted against you. It only takes 2 clues to "fail" the test. They are listed below:
- Cannot keep balance while listening to instructions.
- Starts before instructions are finished.
- Stops to regain balance while walking.
- Fails to touch heel-to-toe. (even if you fail to do so just once, or the entire exercise, it is counted against you the same way).
- Loses balance while walking/steps off line. (if you step off the line even just one small step, they will say you "lost your balance")
- Uses arms for balance. (the natural thing to want to do while walking a "tightrope" is put your arms out helicopter style. But you can't.)
- Does not perform turn correctly.
- Takes the incorrect number of steps.
Additionally, the officer has an option of saying "Cannot do test" (which he will mark if you step off line three or more times or if he feels there is some reason you are unable to perform the test at all).
Before the police are supposed to even ask you to submit to the exercise, they are supposed to ask you about any illness or injuries you may have. The problem is that not only do many of them never ask, but the ones that do ask you, ask the WRONG question! They will say something like "do you have any injuries or illnesses that would PREVENT you from being able to perform this test." The reason why this is the wrong question is because it doesn't matter if you are unable to do the test at all, it matters if there is something wrong with you that would AFFECT YOUR ABILITY to perform the test at all. Because if it does, they need to know that and take that into account when assessing your ability to perform the test and thus your ultimate level of impairment. Think about it this way - if you have only one leg, that would be something that would prevent you from doing the Walk & Turn at all. (Obviously). But what I bet you didn't know, however, is that the guidelines actually say that certain people are not supposed to ever do this test. People who are overweight or have had certain knee or back surgeries are not supposed to do this test. People taking certain medications. The problem here is that unless the officer knows a reason why you shouldn't take the test, he is going to give it to you and you will fail, and he will arrest you. 9 times out of 10 the officer will never know about a condition or medication because he will not ask and you will not otherwise know to tell him.
Finger-to-nose test: you will be asked to stand with your arms out horizontally at your sides, feet together. With your eyes closed, you will then be asked to take one hand at a time upon command the officer's command, and place it straight out in front of your body, then bending your arm at the elbow forward, move to touch the tip of your finger to the tip of your nose. You will then place your arm back out at your side. The Finger to Nose test is not a standardized field sobriety test. The police officer will state either, “left” or “right.” When the officer states, “right” the DUI suspect must bring their right pointed index finger to the tip of their nose. They must touch the tip of the finger to the tip of the nose. Any deviation is failure. The sequence is usually left, right left, right, right, left. Many DUI suspects will raise their left hand initially during the third “right” request.
Most individuals cannot touch tip to tip either. They usually miss by a mere inch or inches.
You will be evaluated on how well you can follow directions, how close you can get to touching your nose with your finger instead of other spots on your face, and how well you can stand in that awkward position without swaying or falling over. And remember, even moving back to a normal standing position is considered "falling over."
This test is almost the worst of the bunch. You are asked to touch a part of your body with a finger, while having your eyes closed. A high school level of biology tells you that your brain is constantly adjusting the information it receives by sight AND touch. To get your body to react perfectly, you need both. The test is an obvious red herring, since the act of eating, or touching your face, requires your eyes to be open. Even when teaching a child to eat, you make sure the child has his/her eyes open and are constantly watching what they are doing while eating.
Remember the baseball saying: “keep your eye on the ball.” You cannot do sports with your arms, without seeing what you are doing.
Romberg test (also called modified position of attention): The test was named after the German neurologist Moritz Heinrich Romberg (1795-1873), who also gave his name to Parry-Romberg syndrome and Howship-Romberg sign. Romberg’s test originally was a neurological test that is used to assess the dorsal columns of the spinal cord, which are essential for joint position sense (proprioception) and vibration sense. A positive Romberg test suggests that ataxia is sensory in nature, i.e. depending on loss of proprioception. Proprioception is the sense of the relative position of neighbouring parts of the body. A negative Romberg test suggests that ataxia is cerebellar in nature, i.e. depending on localized cerebellar dysfunction instead.
Romberg’s test is not a test of cerebellar function, as it is commonly misconstrued. Patients with cerebellar ataxia will, generally, be unable to balance even with the eyes open; therefore, the test cannot proceed beyond the first step and no patient with cerebellar ataxia can correctly be described as Romberg’s positive. Rather, Romberg’s test is a test of the proprioception receptors and pathways function. A positive Romberg’s test has been shown to be 90% sensitive for spinal stenosis. - Katz and Harris, 2008 "Lumbar Spinal Stenosis", New England J of Medicine, 358: 818-325
Cerebellar ataxia dysfunction-The term cerebellar ataxia is employed to indicate ataxia (ataxia means gross lack of coordination of muscle movements) due to dysfunction of the cerebellum. So in essence Romberg’s test will determine neurological damage NOT impairment.
For this DUI exercise, the officer will instruct you to stand with your feet together, arms down by your sides, head tilted back, with your eyes closed. You are to stand in that exact position and count in your head for 30 or 45 seconds. You are to tell the officer when you think enough time has passed, or when he says to stop he will ask you to estimate the amount of time that has passed.
During this exercise you are being evaluated on your ability to follow directions correctly, your ability to stand in that uncomfortable and unusual manner without swaying or falling down, and your ability to estimate the correct amount of time passage.
[The actual Romberg test was developed many many years ago by a very experienced and qualified doctor, who used the test to help determine whether patients had syphilis. There are several problems with this test, which is why it is not NHTSA "approved." Police officers are not doctors, and unlike Dr. Romberg's original syphilis test, the police have added their own requirements! The original test did not require tilting your head back, nor was there ever a time limit. Furthermore, the police are not using the Romberg balance as it was originally intended, to detect the presence of a medical syphilis condition. Instead they are using an improper procedure for detecting levels of drug and alcohol impairment. Invalid testing equals invalid results.]
Fingers to thumb: The Finger Count (or sometimes called “Finger Tap”) is a physical sobriety exercise. The use of this exercise varies significantly, as it is not a NHTSA “approved” exercise. Whether this test will be given and its admissibility depends on what jurisdiction you are in. Although your results of this test will not always be admissible against you at trial, your performance of it will be taken into consideration during the officer’s decision of whether or not he should arrest you for DUI. It will also be given weight during the prosecutor's decision of whether to file charges and can be used in arguments against the decision by a judge to dismiss the case.
During the Finger Count test, you will be asked (or, most likely, told) to place one arm out in front you with your palm facing up. You will then be directed to touch each fingertip to the tip of your thumb while counting aloud forward and backward in three sets. You will be evaluating on your ability to correctly perform the test as well as your ability to listen and follow instructions. If you perform the test incorrectly (for example, if you cannot touch your fingertips properly or if you fail to touch the number of required times), or start the test before you are told, the officer will use your “failure” during his determination of whether or not you should be placed under arrest for DUI.
Many people who are not intoxicated are unable to perform this test. Most of you have never tried this test before, and you are not required to do it in order to get your drivers license. Several factors other than intoxication could affect proper performance of this exercise. It is therefore always a good idea to refuse if asked to perform this test.
Reciting the alphabet (forward or backward): It's hard to recite the alphabet forwards sometimes, which is exactly why some variations of alphabet testing does actually exist. Some police departments will ask a DUI suspect to recite the alphabet without singing, or to write it down on a piece of paper.
During the recited alphabet test, the officer will be evaluating your ability to say the alphabet correctly, without struggle, and without singing. Durign the written alphabet test, the officer evaluates your ability to recall the correct order of the alphabet within a reasonable amount of time, as well as your ability to write it down in a legible manner.
Hand pat: The Hand-Pat is an exercise in which a DUI suspect is asked to stand with one hand out in front, palm facing up, then told to place the other hand palm down on top of the first. They then must "pat" the bottom hand with the top, by rotating between the palm and backside of the top hand. Each pat is to be counted by the suspect aloud. The officer will be evaluating the suspects' ability to follow instructions and perform the test properly as requested. Whether they started before told to do so, or stopped the test too quickly, or improperly counted or patted will be assessed.
If you are confused by reading these instructions, you should be. This little game of patty-cake is a bogus way to measure impairment. It is not as commonly used because it cannot accurately measure impairment, but if you happen to be asked to submit to it, you need to know your results can and will be used against you. It's best to refuse to submit to this exercise
Once again, surprisingly, your DUI / DWI attorney or criminal defense lawyer may advise you that you are not required by law to have to submit to these tests if you’re over the age of 21.
Attorney General INFORMATION BULLETIN
March 1, 2006
California Department of Justice
Rick Oules, Director
Procedures Using the Evidential Portable Alcohol System (Epas)A1cotest 7410 Plus.
purpose of this Bulletin to advise:
Operators should not block exit port. Blocking the exit port of the mouthpiece can affect alcohol concentration. Operators should not block the exit port. Sincerely,
RICK OULES, Director
Division of Law Enforcement
[it may be the case that an officer holds his finger over the exit port on a breathalyzer and spikes your B.A.C. reading up some 0.08 points or more. There have been cases where blocking the exit port raises the B.A.C. reading by 0.12. That alone constitutes nearly a felony charge of DUI / DWI in the state of Nevada.
Since its inception, the breathalyzer test to detect intoxication has been fraught with hazards. The usual breath machine or device Nevada police use is the Intoxilyzer 5000. The chief opponents of the field device, now commonly known as the Breathalyzer have always held that they are not accurate.
“Are the police maintaining the equipment of breath machine to make sure that it's accurate.”
Customarily what they attempt to do is analyze the content of alcohol or ethanol in your breath. This is not always possible. Quite a few devices are nearly incapable of detecting ethanol at all or incapable of distinguishing other chemicals on the breath from ethanol. For instance, should you be on some medication, be diabetic, a chronic abuser of alcohol, i.e. alcoholic it might give a false positive reaction. The true problem is that it attempts to read the methyl group commonly found in ethanol. However, this group is present in all the aforementioned cases as well. In short it isn’t specific enough to the exclusion of all other compounds to justify it as unquestionable proof of alcohol intoxication.
“What should I do when I’m pulled over by the police? Your rights are guaranteed by the U.S. Constitution.”
There is no penalty for refusing a Field Sobriety Tests or the breathalyzer test in the field, in the state of Nevada. Also, given your Miranda Rights you should be polite but refuse any and all questions. You would be well advised to request your attorney immediately following your arrest.
It is the per se law that by your agreement to own a Nevada Drivers License, you give tacit consent to submit to a blood alcohol test, at the station, and thus cannot refuse it.
"Per Se" Blood Alcohol Concentration (BAC) Level
As of August 2005, all states have DUI laws that deem "per se intoxicated" any driver with a blood-alcohol concentration (BAC) at or above .08 percent. This means that drivers with a BAC at or above .08 are intoxicated in the eyes of the law, and no additional proof of driving impairment is necessary.
"Zero Tolerance" Blood Alcohol Concentration (BAC) Level
All states carry "zero tolerance" laws that target drivers under the legal drinking age. These laws penalize persons under 21 for operating a vehicle with any trace of alcohol in their systems (a BAC above 0.02).
Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations. Hospital blood tests overestimate a person’s true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.
"Implied consent" laws require vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of DUI. If a driver refuses to submit to such testing, implied consent laws carry penalties such as mandatory suspension of a driver's license, usually for six months to a year.
Your Nevada DUI attorney may be able to argue down the per se law in light of the 1985 Supreme Court ruling in Francis v. Franklin.
You may want to bring this case to the attention of your attorney. It might be a very good piece to assist him / her with.
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