Generally speaking, can I insist on a breathalyzer?

Factual Questions
1

I don’t drive drunk. Period.

It occurred to me as I was watching Cops tonight, however, that even with the balance improvements I’ve had as a result of my “martial arts” training, that I probably would have difficultly doing the stupid-assed stunts the cops have you do (which seem to be different for every single jurisdiction and cop) - you know, “stand on one leg and count to 30” or “breakdance for me while reciting the Lord’s Prayer in Greek.” Do I generally have the right to say “I have balance problems, I demand you give me a breathalyzer and end this foolishness?” Or would that be used as an excuse to arrest me because I refused to obey their Lord of the Dance routine? I’ve searched the law in my State (Kansas) and not being a lawyer or not doing the right searches, I’ll be damned if I can figure it out.

Edited to add: I wonder if I could do the same thing at the random “sobriety checkpoints” - that is, say “just give me the breathalyzer so we have no doubt?”

2

I doubt every patrol car carries a breathalyzer plus I think it requires a trained operator to get court valid results.

The field tests are to allow the officer to arrest on the suspicion of DUI.

I believe that you can ask for tests you can do. For example, following a pen with your eyes.

3

I have wondered the same exact thing as Una, also as a result of watching the sort of field testing done on Cops. I have been unable to consistently replicate some of these tests in my living room, so I’d bet there’d be problem doing it on a dark road under the scrutiny of Office Friendly.

Are there actual laws that say you must comply with field testing despite any physical limitations (or even just anxiety) and that cops don’t have to fetch a unit with a breathalyzer on request?

4

I’ve thought about this a zillion times. The vestibular apparatus on the right side of my head was completely destroyed by childhood meningitis. I don’t drive drunk, either—period. I’ve always wondered what I would do if Mr. High-school-diploma-with-a-badge demands that I stand on one foot while juggling three bowling pins. I eagerly await some knowledgeable input on the subject.

5

Caution: Unconfirmed Citing courtesy of DrunkDrivingDefense.

The author of this article comments on the effectiveness of field sobriety tests. He claims they are voluntary, and that:

He further states:

Mind you, the piece also examines the matter of roadside alcohol screening tests:

In summation, the author advises against taking field sobriety tests and, where a roadside alcohol screening test is not the official state test, to refuse that as well.

Regrettably, he gives no advice on what a driver should do in such circumstances. I suspect he or she would be arrested and taken to the nearest police station. Doubtless someone will be along to widen the discussion on the consequences of refusal.

A personal view on this (IANAL) is, assuming that disabled drivers are not asked to get out of the car and breakdance while reciting the Lord’s Prayer in Greek, the same rights might be accorded to able-bodied motorists.

6

What about the ones where they ask them to do something like “walk a straight line with your left arm straight out and your right index finger on your nose and recite the alphabet, backwards”?

Come on, I couldn’t recite the alphabet backwards sober, even without all that other shit. Hey, we learn it as a song, and no one normal can do songs backwards just like that.

7
8

Makes you wonder if you could say “You (cough fucking cough) do it first officer”

Not prudent I am sure, but I’d still like to see someone do it.

9
  • horizontal gaze nystagmus test, which involves following an object with the eyes (such as a pen) to determine characteristic eye movement reaction.[12]

OK, I can do that, my eyes are normal =)

* walk-and-turn (heel-to-toe in a straight line).

Sorry, Im physically handicapped, I can not walk heel to toe in a normal fashion

* one-leg-stand.

Bwahahaha, that i can do with both my crutches on the ground in their normal position =) but before i was a gimp I probably couldnt do it, no sense of balance whatsoever.

* modified-position-of-attention (feet together, head back, eyes closed for thirty seconds; also known as the Romberg test).

I can do that as long as I can use my crutches.

* finger-to-nose (tip head back, eyes closed, touch the tip of nose with tip of index finger).

Only if I can do it in a seated position, otherwise I would be whacking something with my crutches.

* recite all or part of the alphabet (a common myth is that the alphabet must be recited backwards, however, this is never done during an FST, as many sober people are unable to do this.).

can we sing it?

* touch each finger of hand to thumb counting with each touch (1, 2, 3, 4, 4, 3, 2, 1).

I can do that seated =)

* count backwards from a number such as 30 or 100.
* breathe into a "portable or preliminary breath tester" or PBT.

and I can do those 2. I would actually prefer a blood test.

Note: being diabetic, I wear my tag at all times, just in case I am acting drunk, they will know that they also need to check my glucose to see if I am in chrisis or hammered. Though to be honest, I really do not drink more than a single drink and drive, mostly I dont actually drink.

10

A much more extensive review of my own State’s Statutes seems to reveal that it is conspicuously blank on the subject of field sobriety tests, and only addresses portable and station-house breathalyzers, and blood testing. I also found out that the NHTSA supposedly has a handbook for the field sobriety test procedures, which is an optional set of guidelines officers can use.

Being diabetic as well, I suppose I can just tell them “I have leg damage from my diabetes so I cannot perform the field sobriety tests. If you suspect I am drunk, please give me a breathalyzer test so we know.”

11

Not in the US, but we don’t have field sobriety tests. Is always a portable sniffer to detect alcohol followed by breathlyser to detect level followed by actual evidentry tests.

12

A police officer only uses a field sobriety test when he already thinks you are drunk. You are doing nothing but help build a case against you when you submit to any roadside test. The results of the roadside tests become part of your arrest record and because courts tend to believe officers of the law, it is bad to have failed either of them.

If you’ve been asked to do a field sobriety test you need to mentally process the simple fact that you will be going to jail. Nothing you do can stop it at this point–for some reason the police officer believes you are drunk, and when a police officer believes you are drunk they’re sending you to jail, period. What you need to do is start figuring out how to mitigate what has happened and strengthen your legal defense. Submitting to a field sobriety test is exactly the same as “answering the friendly policeman’s questions” when they think you have committed a crime. Never give a police officer evidence that can later be used against you, period.

No state imposes any sort of penalty for refusing a field sobriety test or a portable breath test. Many states do impose a penalty for refusing the breathalyzer at the police station. To my knowledge the results of portable breathalyzers are not admissible in court in every state, and to my knowledge all of the states which penalize refusal to submit to a test are referring to the large, legally-admissible devices at the police stations, not portable breath tests.

Once you’re actually at the police station that is when it becomes very useful to know the laws of your state. In some states the penalty for refusal to submit to a test is much lower than the penalty for first offense DUI–in some states the penalties are almost the same.

Either way, you should probably try to get a lawyer, although the truth of the matter is you’re almost definitely not going to be given access to a lawyer before the time to decide on whether or not to submit to tests at the police station reaches its conclusion. You’ll probably be given a piece of paper that says if you don’t agree to take the test within so many minutes you’ll also either be charged with the criminal offense that some states have for not submitting to the tests or you’ll be warned that the DMV in your state regards such refusal as a reason to suspend your driving privileges.

If you genuinely believe you are innocent try to insist on a blood draw. Breathalyzer machines are not 100% accurate by any means and it would be a shame to have a DUI on your record because of that fact.

Anyway, I’ve rambled a bit but ultimately keep in mind that PBT and field sobriety test are just a tool to arrest you. Refusing both or one in preference for the other isn’t a crime, but most likely if you refuse the field sobriety test and ask for the breathalyzer the police officer is going to consider arresting you anyway. If you’re genuinely completely sober and he agrees to test you there is probably a slim chance you’ll be released.

13

Do you have a cite for Michigan? It was my understanding that our “implied consent” law made refusal of a breath unlawful (or otherwise incurring a penalty). What I don’t know is whether this implies to portable units or station units (in fact, I didn’t know there were even such things as “official” station units).

14

It would therefore seem that Una Persson, who doesn’t drive drunk period, will go to jail if she is asked to do a field sobriety test, whether she takes it or not, even though she isn’t drunk.

Please correct this interpretation if it’s wrong.

15

Here’s a case affirming a conviction: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=or&vol=A128097&invol=1 (defendant refused field sobriety test, was arrested, and later refused breathalyzer, evidence of refusals was admissible).

And a case discussing the constitutional implications of field sobriety tests: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=app\96-0474&invol=2

16

Incidentally, in Florida you have the right to demand a urine or blood analysis rather than field sobriety test or breathalyzer, and you can’t be arrested until the officer has conducted you to the nearest appropriate facility and you have been tested. Pain in the arse, of course, but it essentially negates the chance of a false positive and gives you an extra ~1 hour or so to sober up a bit.

17

I live in Florida. At least some good news for me!

I dont drive around drunk, but I would probably explode if I was wrongly convicted of such a thing due to a dumb ass field test or malfuncitoning equipment.

Are the field tests or portable equipment admissable as evidence?

Or will the station/blood/urine test trump the other less reliable ones?

I dont mind cooperating as long as the final say would be on something I can reasonably count on to be accurate.

18

It’s been a while since I took the class, but IIRC if you submit to the “official” breath test (the one you get at the station) you waive your right to the blood or urine test, but any one of those three trumps the portable breathalyzer or field sobriety test.

IANAL, IANYL, IDKS, etc.

19

Not so, I’ve been pulled over twice in my life and subjected to field sobriety tests. Both times I passed with flying colors and was sent on my way.

BTW, both times I was the DD and the cop followed me after seeing me leave a bar with a car full of rowdy drunks.

20

You do not have to do field sobriety tests. You will more than likely be arrested and transported to the Sheriff’s Office or wherever and be given a breathalyzer test. If you come up clean, you’re free to go.

That is, after you pay the impound fee on your car and the taxi fare to get to the impound lot.