Joseph P. Hougnon, Attorney at Law

How Important Are Field Sobriety Tests?

In all of the jury trials I’ve won, and I haven’t lost in fifteen years, I try to downplay the results of the Field Sobriety Tests (FST’s) as documented by the officer in the arrest report and on the stand during trial. Understanding the value of this evidence is also important in plea bargain negotiations. The FST’s are usually administered on the side or the road after a traffic stop, and before an arrest is made. What most people don’t know, these tests are voluntary and only administered with the goal of obtaining more evidence to help the DA later prove a DUI case in court. Most of the tests that are usually administered are not standardized. And, given the fact that the officer is usually someone you’ve never met before and who has no idea whether you have issues with mobility, flexibility and/or balance, the evidentiary value can be diminished in the eyes of the jury without spending a lot of time talking about them.

Many attorneys take training courses similar or the same as those taken by law enforcement, and then spend a lot of time in trial cross-examining the officer with the goal of proving to the jury they know more about the FST’s than the officer does. They get into the minutia and every small detail in an effort to create reasonable doubt about the results of the FST’s as recorded by the arresting officer. In my experience, that approach only highlights the FST’s in the minds of the jurors, causing them to pour over the small details and giving far too much attention to things that have little to do with the real issue in the case: whether there is sufficient evidence of impaired driving – not impaired ballet dancing on the side of the road when you’re nervous and afraid of being arrested.

I rely upon the forensic expert to give me his opinion of the weight the FST’s should be given in the trial, and can usually push back and create doubt with a few pointed questions. Remember, you’re charged with driving under the influence. If your driving has issues or can be seen as evidence of impairment, I’ll focus on that. Jurors tend to care more about whether the driving pattern exhibits evidence of impairment and whether there are any reasonable explanations that favor a finding of fact other than impaired driving, than your ability to comply with physical balance tests on the side of the road under confusing and stressful conditions.

DMV Administrative Per Se (APS) Hearings

In alcohol-related cases with BAC results of .08% or more within 3 hours of driving, DMV has a presumption in place that gives them the power to suspend your driver’s license, regardless of whether or not you’ve been convicted of a DUI. If you don’t request a hearing in time, and your BAC is .08% or more on a valid test, your license will be automatically suspended 30 days after your arrest. If there were any notice issues, it may happen later in time.

To win DMV hearing, the defense must find a winnable argument that either causes the evidence to be inadmissible, or that overcomes the presumption your BAC was .08 or more at the time of driving. Making an winning argument that the traffic stop was not warranted – similar to a suppression motion in court – is one way to win a DMV hearing (Click to see Avoiding a Checkpoint).

Joe Hougnon, Esq.

Answers to all your questions are only a phone call away. Call Now at (916) 730-5251.

The DMV does not consider the Preliminary Alcohol Screening Device (PAS) breath tests often administered on the scene unless:

1. You’re less than 21 years of age;

2. You’re on DUI probation;

3. You’re pulled over in a county that has an EPAS device in the patrol car. EPAS devices are usually admissible in DMV hearing and court and are considered more reliable than the PAS devices used in counties like Sacramento and Placer County. They have the ability to print out the results as well.

In some cases, your PAS test results on the scene are below .08%, or one of the two tests are below the legal limit. In that case, it may be possible to make a winning argument that your BAC was rising at the time of driving and only went to .08% or more after you were arrested. In most cases, law enforcement ask you and note in the arrest report what you tell them in response to questions about what you drank, when you drank, and how much, or at least what they think you said at the time. It’s human nature in that situation to try to distance oneself from drinking, so many people either respond that they haven’t had anything to drink, hoping the officer will let them go home, or to say they stopped drinking hours ago when in fact they just finished drinking right before they were pulled over. It may seem counter-intuitive, but in a Rising BAC Defense, the closer you were drinking to the time you drove it actually helpful. Why?

When we begin drinking we are absorbing alcohol, but we’re also burning it off at the same time. At some point, usually within about an hour after we stop drinking, our bodies become Fully Absorbed and begin burning off alcohol at a rate of approximately .02% per hour. So, if you told the officer you stopped drinking 2 hours ago, it is arguable your BAC is dropping between the time you’re pulled over and the time of your evidentiary breath or blood test. If you respectfully decline to take the PAS test on the scene (not a refusal unless you’re within one of the exceptions above) and your test results show your BAC is at .08% an hour after being stopped, it’s arguable your BAC was closer to .10% at the time of driving.

Winning a Rising BAC argument at a DMV hearing using PAS results that are below .08%, requires your attorney to subpoena the PAS logs and maintenance records, the officer who maintains the PAS device the officer used when he arrested you, and depending on the information on the sworn affidavit filled out by the arresting officer (DS-367 form), the arresting officer as well. This is more expensive than the typical DMV defense because the officer usually charge $150 each up front to be at the hearing, and CHP in particular will usually follow up with a bill that is two to four times higher than that a week or so after the hearing. In one case, the officer appeared by phone for 10 minutes and we still got a supplemental bill for around $300 more.

If you lose your DMV hearing, and although there are some knowledgeable and fair hearing officers at DMV Safety, most tend not to be particularly interested in your arguments, you have two options: 1. You can request an Administrative Review by DMV attorneys who are supposed to consider all the evidence and arguments (recorded on CD) in your case, but in my experience no so much; 2. File a writ (lawsuit) in Superior Court, which is much more expensive. Requesting an administrative hearing, something I do for my clients, only costs $120 filing fee and gives you and your attorney more time to consider whether to file a writ – it tolls the statute of limitations on the time to file in Superior Court.

In a 1st DUI, assuming the case is handled properly and the two potential suspensions are run together (DMV is required to do that pursuant to Vehicle Code section ….), the worst case is a thirty-day hard suspension, followed by a five to 9 month restricted license. Although it may be possible to get a “stay” of the pending suspension when you file a writ in Superior Court, it’s not a given and so in most cases filing a writ doesn’t make sense. Likewise, if you’re convicted of a 2nd or 3rd DUI, filing a writ may not make sense because the conviction will trigger a license suspension anyway. There are exceptions to these examples, but the first step is always to file a request for an Administrative Review first.

For more information on Field Sobriety Tests, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (916) 730-5251 today.

Joe Hougnon, Esq.

Answers to all your questions are only a phone call away. Call Now at (916) 730-5251.

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