A DUI Lawyer Explains How it is Possible to Fail a Field Sobriety Test

As a DUI lawyer, I help a lot of people that have been pulled over for the suspicion of drunk driving.  It is important to note that you can be pulled over for driving erratically, and the officer may suspect that alcohol or drugs are involved.  In reality, there are many reasons why a person would not drive perfectly within the lanes even when drugs or alcohol are not involved: turning down the music, handing your son a toy, looking at directions. All of these things and many more, can lead to distracted or careless driving that may have the same general appearance as drunk driving.  Once a traffic stop is initiated and if they officer believes you are driving under the influence, the officer will ask you to submit to a series of Field Sobriety Tests (FSTs). The challenge is that even sober people can (and may even be likely to) fail a field sobriety test. Reasons people fail a field sobriety test: 

If you submit to a field sobriety test, it will be conducted on the side of the road with the potential for traffic rushing by.  The entire experience is both stressful and overwhelming for the majority of people.  Nervousness will often cause the mind and body to react in a way that it normally would not under different circumstances.  According to the Mayo Clinic, symptoms of nervousness or anxiety may include hyperventilation, trembling, sweating, and trouble concentrating or thinking.  All of these symptoms can make it difficult to hear and understand the officer’s commands, much less carry them out without looking physically impaired.

Additionally, as a DUI lawyer, I know that many of these tests require specific acts of balance that are not always attainable by people with a disability or those in poor health.  For example, if someone is severely overweight or recovering from a muscle sprain, standing on one foot may be impossible.  These tests are flawed in that they do not account for medical conditions, anxiety or other factors beyond the officer’s preconceived notion that a driver is impaired.

The type of tests that are demonstrated and why you need a DUI lawyer:

There are several types of FSTs that are conducted throughout the country.  This includes the Finger-to-Nose test, One-Leg Stand test, Walk-and-Turn test and more.  Each test is designed to test the driver’s ability to maintain focus and balance and follow directions. These tests purport to be an accurate indication of whether an individual is under the influence of alcohol or drugs. Again, the difficulty with the FSTs is that they were designed for people that are physically healthy and calm.  The mere act of being pulled over by the police takes away the calm that people would otherwise feel while performing the FSTs.

Exercise your rights.

The FSTs are completely VOLUNTARY and you do not have to submit to any of the Field Sobriety Tests – even the Preliminary Alcohol Screening test is VOLUNTARY. If an officer asks you to submit to the FST, you have every right to say ‘no thank you’. It is likely that you will not complete the FSTs perfectly as demonstrated and any failure to follow the directions of the officer will be highlighted in his report to make it seem as if you are under the influence. You lifted your foot an inch higher than requested? Bad. You opened your eyes slightly? Bad. There was a one-inch gap between the heel-to-toe test? Bad. Do not submit to the FSTs.  

Focus on your defense.

Due to the inability of a FST to ascertain levels of intoxication, many people are arrested and accused of drunk driving without actually being under the influence.  As a DUI lawyer, I can mount a strong defense, illuminate holes or flaws in the process, and work to demonstrate why my client (you) is innocent.  Since a DUI is a criminal misdemeanor charge, it is extremely important to focus on your defense and fight the charges.

A DUI Lawyer Explains How People Really Get Through a DUI Checkpoint

Have you seen YouTube lately? There is a video circulating wherein a DUI lawyer gives his perspective on what to do to get through a DUI Checkpoint without having to speak with the police and without getting arrested. This is an interesting concept and has caught on like wildfire as people are desperately trying to avoid getting questioned or arrested by the police.  These DUI checkpoints have been set up throughout the country and they are designed to generate arrests.  The police go into every DUI checkpoint stop with the preconceived notion that drunk drivers will pass through.  Every individual subjected to the stop is looked at through that lens and, oftentimes, innocent people are arrested, as a result. 

Here is what to do if you go through a DUI checkpoint.

Whenever you are interacting with the police, remember to remain calm.  While this may seem counter-intuitive, police officers tend to think that you are doing something illegal if you are nervous or acting strangely.  By remaining calm and behaving like you normally do, you are more likely to get out of most police interactions unscathed.  With that in mind, when driving through a DUI checkpoint, you will be asked to pull your vehicle over so that an officer can approach your car.  The proponents of the DUI Checkpoint video then suggest taking these steps:

1. Place a flyer outside of your window that says “I want to speak to my lawyer, and I choose to remain silent”.
2. Show your driver’s license, insurance card and registration.

All of this is supposed to be done outside of your car, with your window rolled up.  Most people simply put the items into a plastic sleeve with a string attached.  When the officer walks up to the car, the driver will have everything an officer would request right in front of them.  This eliminates the need to speak with you and, as long as your paperwork is okay, you should be free to go.  As a DUI lawyer, we understand that things are not always this simple but the concept is interesting, in theory. 

Why it works.

In order for the police to arrest someone for the “belief” that they are driving under the influence, the driver must give them the opportunity to identify a cue that confirms their suspicions.  For example, if you speak with an officer, that officer could claim that you have slurred speech.  By remaining silent, that opportunity is eliminated.  Simultaneously, if you roll down your window, the officer could claim that they “smell” something like drugs or alcohol.  It could be spilled mouthwash or the odor of your drunken passenger; regardless, this gives them an opportunity to find something that is suspicious. If you can eliminate the opportunity by limiting your interaction with the officer, you may get through the DUI checkpoint fairly quickly.

Keep in mind that these steps will only work if you are driving correctly and legally.  If an officer approaches your vehicle and can tell by a visual inspection that you are intoxicated, they may begin an interrogation instead of allowing you to pass through.  Simultaneously, if you were seen driving erratically, this can be considered probable cause to initiate further questioning.  In those cases, you should call a DUI lawyer right away so that we can ensure that your rights are protected. 

What You Need to Know Before Hiring a DUI Lawyer

If you have been arrested for drunk driving, you need a DUI lawyer that is an expert at fighting these types of cases.  A DUI is a serious offense and should be treated with the same level of care that you would give to a criminal charge.  It can have long-term consequences that include financial and social risks.  Additionally, DUIs can come with jail time so hiring the right attorney is important for protecting your rights and your freedom.

Before you hire a lawyer here is what you need to know:

Location is Important

Look for an attorney that is located within your county or the county where you were arrested.  If you hire someone from outside of the area, you will end up paying more in legal fees as they will bill you for the time it takes them to drive to court.  Additionally, each county has nuances that when known can help your attorney navigate through the court system.  Local attorneys have the benefit of the inside scoop.

DUI Law is a Special Practice Area

There are many types of lawyers out there, some of which practice general law, meaning that they do everything.  When you work with a DUI lawyer, you will have access to better representation because this is what they focus on.  For example, you wouldn’t hire a business attorney to handle your divorce case.  Similarly, it doesn’t make sense to hire a family lawyer for your DUI.  When you work with an experienced DUI attorney, you have access to the additional resources that their experience may provide.

Build a Strong Defense

Look for an attorney that will work to build a strong defense in your favor. Everything is up for debate including the circumstances leading up to the arrest, the arrest itself, and any equipment that was used to determine whether or not you were intoxicated. If you were arrested for a DUI, you don’t have to accept it and assume guilt.  You can fight the charges and should.  The key is hiring the right DUI lawyer that is willing to fight for your rights and to work towards getting the charges dropped or reduced.

You May Not Go to Court

Depending on the circumstances of the arrest and the negotiating skills of your lawyer, you may not have to go to court.  You can decide whether or not you want to try to settle the charges outside of court or fight them fully.  The choice is yours, so it is important to hire an attorney that is willing to help with the case, regardless of which direction it takes.

As an experienced DUI lawyer, Ms. Martina Vigil understands how important it is to fight DUI charges.  A conviction can have negative consequences that last for years so make sure that you are working with an attorney that can fight for your rights.  To schedule a consultation with Ms. Vigil call (714) 543-5840.