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Originally Posted On: https://alabamaduidefense.com/10-reasons-to-not-take-a-field-sobriety-test-alabama-dui
How Police Obtain an Impaired Driving Conviction for a DUI in Alabama
The starting point for learning how to protect yourself from getting convicted of DUI in Alabama is to know the THREE primary types of evidence police are trying to collect from you in a driving under the influence of alcohol “impairment” case. To get a conviction, the government must prove — beyond a reasonable doubt — that you are guilty of drunk driving, using these 3 types of evidence: (1) Errant driving, such as causing an accident, violating a traffic law, or some pattern of poor control over your vehicle; (2) Your manifestations (signs) of being impaired, like slurred speech, being unsteady on your feet, smelling like alcohol, bloodshot eyes; and (3) any “performance” errors on the field sobriety tests offered by the police.
The job of the DUI Attorney is to use pre-trial motions to eliminate one or more “types” of evidence that are used by a Prosecutor to circumstantially prove that you were less safe to drive due to alcohol, so as to improve your chances of not being convicted at trial.
Never take even one Field Sobriety Test in an Alabama DUI Case
If police suspect you of intoxicated driving or DUI-drugs, you will be asked to step out of the vehicle and submit to roadside agility and DUI eye test procedures. The purpose of these is for the officer to GATHER incriminatory evidence against you before he or she TELLS YOU that you are being arrested for DUI Alabama. The cop will most likely NOT tell you that the evaluations are OPTIONAL, VOLUNTARY, and not a required test under Alabama DUI law. No law in Alabama mandates that a motorist driving a non-commercial vehicle must submit to police-ordered roadside field sobriety tests.
To be Convicted of DUI in Alabama, an Officer need not see you “Driving”
Many people think that driving under the influence of alcohol requires a person to be observed DRIVING. That is not true. This mistake of knowing how broad and unreasonable Alabama DUI Laws can cost many unsuspecting citizens who are awakened and arrested for an Alabama DUI a trip to jail for drunk driving. Then, they LEARN the law, but find themselves facing a DUI in Alabama. For decades, the legal definition for DUI Alabama has been broadened to including driving and “being in actual physical control.” Simply stated, this can mean that you were drunk and inside the vehicle, and had the key or fob, that CAN start the engine — whether the vehicle is running or not.
In Alabama, Field Sobriety Tests are 100% Optional and Voluntary
You can decline every field sobriety test in Alabama, and not violate any drivers license law or criminal law. NO penalty exists under any Alabama law, for simply saying “No, thank you.” The reason the best DUI lawyers in Alabama tell citizens who socially drink and drive (which is 100% legal) to NOT take ANY OF these evaluations is to IMPROVE our chances of winning the driving under the influence in Alabama case that you are going to be facing. In other words, you help our Alabama DUI lawyers win, by knowing and exercising your legal rights.
Field Sobriety Tests are not Scientific, nor do they prove Driving Impairment
Under Alabama DUI law. These so-called “field sobriety” evaluations do not come CLOSE to being “scientific” tests, like the SAT college exam test, the ACT college exam test, or an IQ (intelligent quotient) test, all of which have 90% OR BETTER repeatability (reliability). NO police field sobriety test comes close to matching this 90% or better “testing and measurement” requirement. The person who created the SFSTs (standardized field sobriety tests), Dr. Marcelline Burns, has conceded that these roadside, standardized field sobriety evaluations cannot be correlated to a person’s ability to operate a car or truck.
Multiple factors — from a variety of causes or sources — dictate that you politely DECLINE to submit to these so-called tests if suspected of DUI in AL. In order to FULLY explain the reason behind this, the Polson Law Firm gives you the following 10 Reasons to Not take A Field Sobriety Test:
1.Visual Distractions and Lights can create HGN in a DUI Suspect
The distraction from the location of where the DUI eye test is conducted creates an immediate disadvantage. Police investigating an Alabama DUI typically pull you over on the shoulder of the road. Tractor trailers, cars, SUVs, school buses, and other rapidly moving traffic create noise, wind, and safety distractions. In addition, for the horizontal gaze nystagmus test, if the officer does not hold the stimulus in the proper “position,” and then move the stimulus at the correct speed and on a horizontal plane, the test subject can display “clues” even with no alcohol in his or her system. It is imperative that the person taking the HGN test (horizontal gaze nystagmus test) or “DUI eye test,” NOT have any visual distractions in the background of where he or she is facing. If additional, potential other “causes” for your eye movements exist, causing your focus to stray, the results of this psychophysical test will NEVER be accurate or reliable. Plus, it can be very embarrassing when a citizen is standing outside his or her own neighborhood.
2. Roadways and Sidewalks are NEVER “Level,” by Design
Like the popular board game Jenga®, that requires competitors to stack polished, wooden blocks on a tabletop, an un-level table will restrict the height of the stacked pieces to ever go higher than about 20 levels. A level surface may allow stacking as high as 27 to 30 levels. Similarly, when asked to perform one of the two divided attention field sobriety test exercises (WAT or OLS), the slope and grade of a road or any adjacent sidewalk are built to disperse water away from the surface, and this means that the likelihood of you making a minor misstep or miscue due to the non-level surface may be mistakenly interpreted by the officer as “impairment.’ (along a busy highway, on a surface that is both sloped and graded to disperse water to the shoulder of the road, etc.)
3. The NHTSA Standardized Field Sobriety Tests are not “Age-Adjusted”
Age is a huge “human” factor, with one British study on use of the OLS (one leg stand) test and WAT (walk and turn) test showed that over 50% of people age 40 or older cannot perform the walk and turn (WAT) or one leg stand (OLS) evaluations TOTALLY SOBER. Old folks fail.
- A Young, Fit Gymnast can do a SFST better than a Fat Senior Citizen
Physical condition and health anomalies are other human factors that can prevent a person from being able to EVER pass certain field tests, regardless of age. A test subject’s prior or current orthopedic challenges make the same two agility exercises (WAT and OLS) virtually impossible for certain overweight individuals (those weighing 50 pounds or more above the person’s ideal weight). Simple rule: Fat folks fail.
4. Physical Limitations can prevent Passing the WAT and OLS Tests
Physical impairment, from prior injury, prior surgery, congenital defects, scoliosis, inner ear disorders, vertigo, or organic brain damage SHOULD disqualify a person from being given the WAT test and OLS test. But, NHTSA manuals do NOT tell an officer to use common sense, and simply tell them to note what the suspect TELLS the person, and go forward with the so-called “sobriety tests.” Similarly, on the HGN test, improper administration of the evaluation to a person with a glass eye, prior eye surgery, chronic eye disease, or medication-induced nystagmus can never pass a horizontal gaze nystagmus test. Virtually no “reported” eye problem will deter the Alabama DUI officer from going forward with this pre-arrest test, because NHTSA training materials are totally deficient in warning an officer to NOT USE the HGN for subjects reporting any type of medical issues with their eyes.
5. HGN can be caused by several other Medical Conditions or Problems
Prior head trauma, mental impairment or mental disorder is another human factor that can also make “passing” the field sobriety test “battery” impossible. For example, a person with ADD, ADHD, or a similar defect in memory will never be able to listen to the complex instructions and execute the walk and turn test or one leg stand test like a “normal” test subject. Once again, even if a person tells the officer, “I have a learning disability,” the officer says something like, “I will take that into account.” But, the agility test goes on, and (predictably) is failed. For an HGN test, multiple types of prescribed medications for attention deficit will CAUSE nystagmus, and the officer cannot distinguish THIS source of HGN from alcohol-induced nystagmus.
6. Alabama Implied Consent Laws and Drivers License Suspension
If a motorist is legally pulled over, and later is legally arrested for DUI alcohol in Alabama, and was operating a motor vehicle on a public highway at the time of his or her drunk driving arrest, he or she is (under the Alabama implied consent laws) deemed to have consented to submit to a forensic alcohol breath test. When alcohol is NOT the suspected impairing substance, an officer may then be justified by the “exigency” (necessity) of obtaining the type of forensic test which can detect and quantify drugs other than alcohol) e.g., marijuana, cocaine, PCP, meth, prescription painkillers) to then read the implied consent notice in Alabama for blood, or urine, or both.
So, under Alabama DUI laws, the three types of forensic tests in Alabama are blood, breath and urine. Most, if not all, police agencies in Alabama use the alcohol breath test as their designated forensic test, for their Alabama DUI arrests. Under the Alabama implied consent laws, a motorist, before being commanded to take a blood alcohol test, will be told that his or her failure to take the designated breathalyzer test will result in the administrative suspension of his or her driving privilege for a period of at least 90 days. What the motorist is not told is that their driving privilege will be administratively suspended as well for at least 90 days if he or she takes the blood alcohol test and registers over the legal limit, all the while providing the prosecution with incriminating evidence to use at trial.
This aspect of a DUI arrest, relating to administrative license suspension, even BEFORE the criminal charge of drunk driving gets to court, creates great confusion of citizens arrested for DUI in Alabama. If a motorist does submit to the designated police blood alcohol test he or she HAS THE STATUTORY RIGHT (under the implied consent laws in Alabama) TO AN INDEPENDENT TEST OF THEIR BLOOD. Under Alabama DUI law, THE POLICE WILL NOT TELL YOU ABOUT THIS IMPORTANT RIGHT! The burden is on the detained driver to assert this RIGHT, to demand an independent blood alcohol test.
The motorist FIRST must submit the requested police-ordered test to have the right to an independent test. The motorist must make the arrangements and pay for the independent test. The police must accommodate and help the detained motorist with reasonable access to transportation so as to arrange for a request for an independent alcohol blood test. If an independent blood alcohol test is not afforded a motorist, this violation of the Alabama implied consent rights is grounds for a pre-trial hearing to seek suppression of the State’s breath alcohol test results. Under most circumstances, an implied consent violation will result in the suppression of the police breathalyzer test results.
7. Even when NOT Driving in AL, you can be “in Actual Physical Control”
If you choose to sleep in your car after having consumed alcohol DO NOT BE IN “ACTUAL PHYSICAL CONTROL” OF YOUR VEHICLE while you sleep. In Alabama, you can be convicted of “driving under the influence” even though the police (or other eyewitness) never observed you driving. Persons in Alabama have been convicted of DUI in Alabama when found behind the wheel, even though the vehicle was parked and they were asleep in the vehicle. Like in most states, the driving while intoxicated laws in Alabama have been EXPANDED to criminalize Alabama drunk driving drunk when the motorist was found “in actual physical control” of the vehicle. Basically, if the key was available, and the sleeping person was under the influence, this sets of the potential for an Alabama DUI conviction. No bright line test exists to determine what is or what is not “actual physical control.” Your Birmingham DUI attorney, Mark Polson (shown below) or his son, Whitney Polson, will review all of the surrounding circumstances that must be put before a Judge at a pre-trial motion hearing, and examined. Below, these possible scenarios are discussed further.
If one must sleep in his or her vehicle after having consumed alcohol, the better practice would be to legally park the car on private property, turn the car off with the ignition key out of the ignition, sleep in either the passenger seat or, (better yet), in the back seat, and turn off all of the lights. Modern vehicles now have key fobs, and this may mean the lack of an ignition key. If the driver can demonstrate the “lack of intent to drive” by putting the ignition key or fob in the trunk, and get inside the car, in the back seat, and lock the doors with the internal lock, this is strong evidence of lack of intent to drive. Once sober, the plan was for this driver to push the button for the trunk release in the glove box. This would be a better set of circumstances to argue “no actual physical control” of that vehicle.
If the person goes even further, and gets out of the car, and walks over to a location outside the car, and places the ignition key, or fob under a rock or someplace safe (e.g., on a tree branch), before climbing into the back seat and internally locking the vehicle’s doors, this may further demonstrate lack of “actual physical control,” and deprive the police of locating the key or fob, as part of their proof of “actual physical control.”
8. You Can be Convicted even if you have not Consumed ANY Alcohol
Alabama Code §32-5A-191 (the statute for DUI in Alabama) has five subsections for which the police can elect to charge a motorist with an Alabama DUI. Subsection 1 and 2 exclusively pertain to alcohol. Subsection 3 covers the DUI Alabama subsection for those under the influence of controlled substances (this subsection covers prescription medications, illegal drugs such as meth, marijuana, cocaine, heroin, etc.) Subsection 3 applies EVEN IF THE MOTORIST HAS A LEGAL PRESCRIPTION, if impairment exists (which usually comes from taking too much of the prescribed medication, or mixing it with other drugs or alcohol.) Subsection 4 of Alabama DUI law applies to a combination of controlled substances and alcohol. Lastly, subsection 5 of DUI law in Alabama applies to ANY OTHER SUBSTANCE (this subsection of Alabama DUI laws covers any substance, such as solvents, glues, paint thinner fumes, or over-the- counter medications (e.g., Benadryl) that render a motorist incapable of safely driving).
9. If Arrested for DUI in Alabama, don’t Plead Guilty without a Fight
Since your Alabama driver’s license can be suspended under implied consent law in Alabama, simply for being arrested for DUI in AL, contact a top-rated DUI Attorney in Alabama, for fight for you. Our Birmingham DUI lawyers travel the State of Alabama to help people, just like you, who think that they have no chance to beat a DUI in Alabama. The phone call is FREE, and the initial lawyer consultation is FREE, so why not dial us up NOW. 205-871-8838, or 205-222-4544 AFTER HOURS. Don’t delay, and miss your 10-day right to appeal, to save your driving privileges.
Our Birmingham DUI attorney firm has nearly 60 years of collective legal experience in the courtrooms of Alabama. Our DUI attorneys carefully review Alabama DUI case histories, and seek the best path for how to beat a DUI for that particular client. The attorney ratings for our Birmingham DUI lawyers is top tier. The DUI law firm partners at the Polson Law Firm both enjoy sterling records for winning, as lawyers for DUI in Alabama. When facing DUI Alabama charges, you need criminal defense attorneys who are each a DUI specialist, and drunk driving book author.
