Additional Resources:
Please visit these pages for additional local information on DUI, criminal, and civil matters:
Question:
What should I do if I'm asked to take field sobriety tests?
Answer:
There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.
Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably "fails". Thus, in most cases a polite refusal may be appropriate.
You will most likely be asked to perform the federally-approved (National Highway Traffic Safety Administration) "standardized" field sobriety tests. These consist of a battery of three tests:
Heel-to-Toe (also referred to as "walk-and-turn")
One-Leg Stand
Horizontal Gaze Nystagmus
All other field sobriety tests are disapproved. And unlike non-standardized tests, in which the officer subjectively decides whether the suspect passes or fails, the SFSTs are scored objectively - that is, a numerical score is assigned according to specific errors, or "clues".
Question:
Why did the officer make me follow a penlight with my eyes to the left and right?
Answer:
This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.
This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement.
Question:
What is the field sobriety test?
Answer:
The standard sobriety test is issued by the police officer who pulled you over. It includes:
1. the horizontal gaze nystagmous (HGN) test;
2. the one-leg stand test;
3. the walk and turn test.
According to the researchers from the National Highway and Traffic Safety Administration who developed these tests, someone who fails the tests has an alcohol concentration of greater than .08. These tests are still debated as to their accuracy and validity. Some of these tests are not even admissible at trial.
If I am arrested and brought to the police station, should I do any of the sobriety tests in front of a video camera, which includes the Intoxilyzer and answering more questions?
First, inform the officer, and all officers you come into contact with, that you want to remain silent and not incriminate yourself until you can contact an attorney and have a private consultation with him regarding the things the officers will ask you and ask you to do. Remind the officers that you are neither refusing nor agreeing to cooperate, but that your decision to do the tests and answer the questions depends upon the advice you receive from your attorney.
Sometimes you may be told "you can't have a lawyer yet". This may or may not be a valid statement depending on the conditions of your case, but, you won't know that until you are allowed to speak with a lawyer. The best thing to do is to remain very polite but still firm in your desire to speak to an attorney. When the police let you the use the telephone, immediately use it and call any attorney you know. When you reach an attorney, be sure that you can speak to him in private, otherwise, the attorney-client privilege is breached and the officer is violating your right to an attorney.
In regard to the intoxilyzer test, it is difficult deciding whether or not to take it. The Breathalyzer is the test given at the station which tests the alcohol level on your breath. It has been known to be unreliable. In addition, it is impossible to preserve the breath sample, which proves your guilt or innocence. It is difficult to advise you to take a test that cannot be performed again or evaluated again in order to prove it's validity a second or third time, if necessary. Furthermore, the results of this test ARE admissible in trial against you. On the other hand, if you don't take the test, the jury may make their own inferences. This however might be explainable by your apprehension or disbelief in the test. Also, there are more stringent penalties on your driver's license suspension if you refuse to take the Intoxilyzer.
Question:
Should I agree to take a chemical test? What happens if I don't?
Answer:
The consequences of refusing to submit to a blood, breath or urine test varies according to which DUI this is for you. Generally, there are three adverse results:
Your driver's license will be suspended for at least a year. This may be true even if you are found not guilty of the DUI charge;
The fact of refusal may be introduced into evidence at trial. Of course, the defense is free to offer other reasons for the refusal. In my opinion, it is easier to win a DUI trial if there was a refusal, as compared to a scientific reading of alcohol in your system which is over the limit.
Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.
Question:
Do I have a choice of chemical tests? Which should I choose?
Answer:
In Kansas, the officer has some discretion to offer you a breath, blood or urine test. However, they generally only offer the breath test. There are possible Constitutional and Statutory issues if they ask for a UA instead of a breath test. It is important to understand, analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis. Thus, if you are confident that you are sober, specifically request the officer to do a blood sample, because it is the most accurate. However, if you think you have a high level of alcohol in your system, a UA is the least accurate and most easily impeached, and so is the best option if you believe your blood-alcohol concentration is above the legal limit. But again, the officer generall only gives you one option, a breath test.
Question:
The officer never gave me a "Miranda" warning: Can I get my case dismissed?
Answer:
No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. Furthermore, the officer will often say you were not yet under arrest and that he was merely investigating. In this case, your statements before arrest, will be admissible.
Question:
The officer took my license and served me with a notice of suspension, a pink sheet in Kansas, after the breath test: How can he do that if I'm presumed innocent?
Answer:
Agreed, it is blatantly unfair. But the law in most states (including Kansas) having a "per se" statute provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit or if you refuse to take the test.
NOTE: You only have 10 days in Kansas to request an administrative hearing in order to keep your license from being automatically suspended.
