As a Florida/Tampa DUI attorney, I routinely meet with people who have been arrested on suspicion of having driving under the influence of alcohol or drugs. Not surprisingly, some of the questions that I am most frequently asked relate to whether the potential client should have cooperated with law enforcement by performing field sobriety tests (“FSTs”) or by providing a breath sample in the Intoxilyzer 8000 for the purposes of determining the person breath alcohol concentration (“BAC”). Both are excellent questions; however the obvious problem is that these people are seeking the answers after they were arrested…when it is too late for me to help. Therefore, I have decided to give my advice in a forum where Florida drivers may consider these issues before they are stopped by the police.As a Florida/Tampa DUI attorney, I routinely meet with people who have been arrested on suspicion of having driving under the influence of alcohol or drugs. Not surprisingly, some of the questions that I am most frequently asked relate to whether the potential client should have cooperated with law enforcement by performing field sobriety tests (“FSTs”) or by providing a breath sample in the Intoxilyzer 8000 for the purposes of determining the person breath alcohol concentration (“BAC”). Both are excellent questions; however the obvious problem is that these people are seeking the answers after they were arrested…when it is too late for me to help. Therefore, I have decided to give my advice in a forum where Florida drivers may consider these issues before they are stopped by the police.
- Should I perform FSTs?
Most people simply do not realize that FSTs are optional, and therefore a suspect can refuse to participate in FSTs without a legal penalty, or that police officers are allowed to try to trick people by implying that they must perform them. In the wake of Miranda v. Arizona, 384 U.S. 346 (1966), it has become axiomatic in Florida law that police officers may use deceit or trickery to obtain evidence and inculpatory statements from defendants. For example, to convince a suspect to provide evidence or to make an admission that will be used to convict him of a crime, a law enforcement officer may, among other things, feign sympathy for the suspect’s current detention/arrest, deceive the suspect regarding the facts and circumstances of the case at hand, misstate the law to make the suspect wrongly believe that she had or had not committed a crime, or lie about the existence of evidence or witnesses which prove the suspect’s guilt. For example, during a DUI traffic stop an officer may tell a person who is refusing to perform FSTs something like, “If you refuse perform the FSTs I will have to base my decision whether or not to arrest you on what I’ve seen so far.” Here, the officer uses legal deception by implying that based upon his observations to that point he is going to arrest the suspect for DUI; but if the suspect would only perform FSTs she may prove that she is not under the influence, thus allowing her to avoid arrest. Despite the wide latitude that is afforded police in attempting to coerce evidence from a suspect, there are boundaries to such liberties. When an officer violates a suspect’s rights by using too much deceit and trickery, the evidence obtained may be suppressed by the court pursuant to her attorney filing and arguing a motion to suppress.
Do not be fooled into believing that if you do well enough on the FSTs you will be allowed to drive home that night. If a law enforcement officer asks you to perform FSTs, you will almost certainly be arrested and transported to jail regardless of how well you perform. The purpose of FSTs is not for the officer to determine whether you will be allowed to climb back behind the wheel of your car (the officer has already decided that); rather his purpose is to justify his arrest of you and to provide evidence for the State to use to convict you.
- Is There a Video?
That being said, this does not necessarily mean that you should decline to perform the FSTs. Before deciding whether you are going to participate or decline to perform FSTs, you need to know a few things. First you need to know with absolute certainty that the FSTs will be video recorded. Currently, most police cruisers are equipped with a camera mounted in the grill or dashboard of the car, but BEWARE some smaller communities cannot afford to purchase and maintain these car-mounted cameras, so they simply do not video record FSTs. Also, cameras break (especially the grill-mounted cameras), so even police cars that are equipped with video cameras occasionally lack the ability to record FSTs. A few smaller police agencies choose to dispatch an additional officer to DUI traffic stops, and armed with a home movie style, hand held video camera this extra officer’s job is to video tape FSTs and other relevant events that occur at the scene.
THIS IS IMPORTANT: if the FSTs are NOT GOING TO BE VIDEO RECORDED, then I recommend that you DECLINE TO PERFORM THEM. My reasoning is that a video recording provides an accurate and unbiased representation of a person’s performance on the FSTs (and arguably the suspect’s degree of intoxication) at the time they were performed. In short, a video recording can serve as an excellent negotiation tool that a defense attorney can use to resolve the case in her client’s favor and without a trial, provide evidence in support of the defense’s argument at an evidentiary hearing, and create a reasonable doubt in the minds of a jury. On the other hand, a video recording can turn an otherwise bad case for the prosecution into a “slam dunk,” thereby convincing a jury of the defendant’s guilt beyond and to the exclusion of every reasonable doubt. Frequently, these videos contain some footage that is good for the defendant’s case, which a good defense attorney will use to demonstrate sobriety, and some footage that is bad that the State will use to prosecute the defendant for DUI. But one thing is certain…a video is AN ACCURATE REPRESENTATION OF THE SUSPECT’S PERFORMANCE ON FSTS.
Absent the video, we are left with the police officer’s opinion and perspective as to a person’s performance on FSTs. Law enforcement officers are trained to observe all aspects of their investigation with a hyper-critical eye. The slightest deviation from the precise instructions given by the officer regarding the “proper performance of FSTs” will result in a mark in their report as to a “sign of impairment”. These officers demonstrate the execution of each FST with militaristic precision, partly because they have performed them so many times that they must have recurring dreams of standing on one leg and touching their nose with their index fingers; and partly because they know the tricks. For example, they know that the one-leg-stand test and the starting position of the walk-and-turn test, (the position in which they make each suspect remain, ad infinitum) become immeasurably easier by slightly bending the knee of the weight bearing leg. They don’t account for the fact that the suspect may be nervous, (“why would you be nervous if you aren’t guilty?” they think to themselves). Oh, I don’t know, maybe because the suspect is surrounded by a battalion of police officers, telling him half-truths, and promising not to take him to jail, “If you can convince me that you are fit to drive.” Furthermore, as much as the State attempts to depict the arresting officer as an unbiased, Andy Griffith-type civil servant, nothing could be farther from the truth. The bias can be observed by comparing the FST video to the officer’s own written assessment within his report. Frequently there will be a stark contrast between the officer’s observations contained in the report and the unbiased and incontrovertible video. Thankfully, unlike the police, most members of most juries understand the reasons why one may make mistakes on the FSTs, thus usually they are reasonably forgiving in their analysis of a person’s performance thereon.
How Will I Perform?
Once you determine that a video of the FSTs will be created, you must consider how you will fare on the Tests prior to agreeing to perform them. As discussed above, such video can be your salvation or your demise, and there are several factors that must be considered prior to agreeing to submit to FSTs.
The National Highway Traffic Safety Administration (“NHTSA”) developed several standard FSTs, three of which are frequently used by Florida law enforcement agencies, namely the Horizontal Gaze Nystagmus (“HGN”) Test, the Walk-and-Turn Test, and the One-Leg Stand Test. By NHTSA’s own admissions, there are certain people who should not participate in these FSTs, because the chances of a skewed result are dramatically increased. People, for example who are elderly, sick, injured, or 50 or more pounds overweight should not perform these Tests.
According to the NHTSA website, “Horizontal Gaze Nystagmus is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles.” In application, the officer makes the suspect stand at attention, and while leaving his head fixed, follow a pen light with his eyes. The reality of this test is, even assuming that it is accurate if performed correctly, it requires skill and training on the part of the law enforcement officer; and most conduct the HGN Test incorrectly. Luckily, for the HGN Test to be deemed admissible in most courts, the officer conducting the test must be a certified Drug Recognition Expert (“DRE”). Do to the exurbanite expense of the DRE classes and the significant amount of time an officer must spend away from his normal duties to complete the course requirements, there are few DREs in Florida. Notably, even if not admissible for the purpose of proving the suspects performance on the HGN Test, a video of the test can be admitted into evidence in trial to show other evidence of guilt, such as the suspects speech pattern, admissions, or behaviors.
During the Walk-and-Turn Test, the officer makes the suspect stand with one foot directly in front of the other with her hands down at her sides, while the officer rattles off the instructions for the Test and marches back and forth in a partial demonstration. It is rather difficult for a person to stand in this position under normal circumstances, let alone on the side of a road while nervous, embarrassed, and facing the possibility of arrest. Then, the suspect is supposed to take nine heel-to-toe, (touching the heel of the front foot to the toe of the back foot) steps on the line, complete an unusual turn, and then take nine heel-to-toe steps back to the starting point. All while the suspect’s arms are straight down at her sides, and without stopping or stepping off of the line. As you may have guessed, there are several “signs of impairment” that law enforcement officers generally look for, which include: cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps.
The goal of the One-Leg-Stand Test is for the suspect to raise one leg approximately six inches off of the ground, flex his toe toward the his body, and keep his hands to his sides, all while counting aloud to thirty saying “one thousand” between each number. The “signs of impairment that law enforcement officers typically use to indicate impairment in this test are swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down.
Apart from the three FSTs developed by NHTSA, Florida law enforcement often implements a fourth test. The Finger-to-Nose Test requires the suspect to stand with his feet together and his arms at his sides, hands in a fist with his index fingers extended. The suspect is then instructed to tilt his head back and close his eyes. The officer will indicate a hand, either left or right, at which time the suspect is to touch the tip of his nose with the correct hand and immediately return the hand to his side. The routine is as follows, the officer will say left, right left, right, right, left, left, right. Almost without fail, the suspect will miss the instruction to use her right hand twice in a row between the second and third iterations of the exercise. And, as you have probably guessed, this miss is a “sign of impairment” used by law enforcement officers to justify arrest and by the State Attorney’s Office to prosecute the suspect. Other “signs of impairment” normally sought out by the officer during this test include missed tip of nose, does not close eyes, and does not return finger to side.
Notwithstanding the suspect’s performance on the FSTs, it is important to remember that the video is also admissible for the purpose of proving the suspects guilt through his speech pattern, walking and standing ability, demeanor, and admissions, (for example, all too frequently people performing FSTs make the statement, “I couldn’t even do this sober”).
Should you participate in FSTs? The answer to that question is a judgment call that each person stopped on suspicion of DUI has to make, and the wrong decision could prove extremely costly. Remember that by choosing to participate you would be creating direct evidence that would be used in your defense or in your prosecution; and by refusing you would prevent such evidence from being created. I leave the final decision up to you, based upon the facts and circumstances of your personal situation
- Should I Submit to a Breath Test?
Unlike FSTs, every Florida driver has a legal obligation to provide a lawful sample of his breath, blood, or urine upon request of a law enforcement officer. Significantly, if a request for such lawful sample is refused there are consequences. Namely, each officer in Florida is supposed to read a suspect the same statement upon placing him under arrest on suspicion of having committed the criminal offense of DUI. The statement is as follows:
“I am now requesting that you submit to a lawful test of your breath for the purpose of determining its alcohol content. Will you submit to a breath test? If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one year for a first refusal or eighteen months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine, or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privileges have been previously suspended for refusal to submit to a lawful test of your breath, urine, or blood, you will be committing a misdemeanor. Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding. Will you submit to the test?”
To sum it all up, if you refuse to give a breath or urine sample, then your license will be revoked for one year if it is the first time that you have ever refused to provide a lawfully requested sample, and for a year-and-a-half if you have ever refused before. Additionally, if you have previously refused to provide a breath sample, then you may be charged with the crime of Refusal to Submit to Testing, a first degree misdemeanor punishable by up to one year in jail.
Not surprisingly, many people tell me that an attorney advised them to never submit to a breath test. Despite the temptation to advise anyone to never take a breath test, I do not think refusing is always the answer. I have had many clients who were stopped for suspicion of DUI in Tampa and who submitted to a breath test which showed their breath-alcohol level to be below .08. A breath result lower than .08 creates the legal presumption that the person is not under the influence of alcohol and will almost certainly force the State to amend a DUI to a more favorable charge or dismiss the charge all together. Far more frequently, however clients come to me with breath test results of .08 or above. Not surprisingly, a breath result of .08 or greater creates the presumption that the person is DUI, which gives the State a great advantage, basically leaving his attorney in the unenviable position of either arguing a faulty with the breath test result, or trying to argue for leniency from the State due to mitigating circumstances.
Also worth noting, is the fact that a suspects refusal to provide a breath sample can be used against him in trial. As a prosecutor, when I was prosecuting a defendant who had refused to “blow” in a DUI case I would make a huge issue of that to the jury. In closing argument I would have my driver license in my hand and say something like, “Mr. Jones would rather throw away his license for at least a year than provide a breath sample.” Then I would walk over to the garbage can and throw my license away, and say something similar to, “Why would he do that? Because he didn’t want you to know how much he had been drinking that night. He knew that you would find out that he was DUI.” So, refusing to “blow” does have inherent risks.
III. Should I Provide a Urine Sample?
If a law enforcement officer believes that a suspect has taken drugs rather than or in addition to consuming alcohol, then he may request the suspect provide a urine sample to determine what drugs, if any the suspect has taken. Florida drivers have the same obligation to provide a urine sample as they do submit to a breath test.
In determining the affect that the results of a urinalysis may have on your case, it is important to understand the type of evidence that a urinalysis provides and its limitations. Contrary to the understanding of many of my clients, urinalysis results provide far less detailed information than blood test results. A urinalysis only detects the metabolites of drugs. Metabolites are the waste that remains after the human body processes drugs.
Each drug or category of drugs has its own unique metabolite(s). Therefore, unlike a blood test, which may be able to determine within a reasonable degree of medical certainty the amount of a specific drug that is in a person’s system at the time the blood is drawn; a urinalysis is only able to locate the presence of metabolites, which remain in the urine for different periods of time depending on the drug in question. Therefore, the presence of metabolites in a urine specimen is of limited value to the State, because all that these metabolites verify is that a certain drug had been ingested by the suspect within the period of time that such metabolites typically remain in the urine. Thus, the prosecution cannot use a urinalysis to determine when the drug was ingested or in what amount; and consequently through a urinalysis alone it is often difficult or even impossible for the State to determine whether the suspect was under the influence of the drug at the time he was driving. As a result, the State must usually depend on other evidence (such as driving pattern, admissions, and performance on FSTs) to bolster the accuracy and credibility the urinalysis.
To sum it all up, there is no one right or wrong answer to the question: “Should I perform field sobriety tests or submit to a breath test upon being stopped for DUI in Tampa?” Before you can make an educated decision regarding the facts and circumstances of your unique situation and allow your attorney to achieve the best outcome for you, you must know the law, you must know your rights, and you must know your body. Please contact Butash and Donovan, LLC for help with DUI’s in Tampa at your convenience if you wish to further discuss these or any legal issues that you may have.