You've had a few drinks and get behind the wheel. Not far into the drive you see the lights and hear the sirens. The police are right behind you. Maybe you changed lanes without signaling. Maybe you crossed over the divider mark. Maybe you did nothing at all.
Your heart sinks deep into your stomach, then quickly shoots up into your throat; beating faster by the second. You've had three to four beers. You think you drank them over three hours but it might have been two. You can't be certain. An officer approaches your car. You roll down your window; hoping that the officer smells what you smell: nothing. But the truth is you probably wreak of alcohol, you just don't realize it.
The officer directs you to get out of the car. You get out with confidence in your coordination. You tell yourself that you're fine. The officer then asks if you will consent to taking standardized field sobriety test ("SFST's") and submit to a Portable Breath test ("pbt") and/or a chemical test when you're back at the station. What's your response?
In this situation, refusing to take the tests is probably the best option.
Even two glasses of wine over a period of three hours could be all it takes to land you in jail, so this applies to you wine drinkers as well. Remember those commercials with the slogan "buzzed driving is drunk driving." Well, in may situations it is true.
Why refuse if your blood alcohol content is probably less than .08%?
Why should you refuse? Because the officer has likely already decided you will be arrested. You're not going to talk your way out of it, or be released because of your awesome athletic prowess and balance. You very likely smell like alcohol and show some signs of impairment, whether you believe it or not. An officer who observes signs of intoxication has probable cause to make an arrest. The bottom line is that in most situations there is nothing to really gain by saying yes. SFST's are used to collect evidence of your guilt, not innocence. So why incriminate yourself?
A common misconception is that it's okay to drive as long as you have a blood alcohol content ("BAC") lower than .08%. We've all heard that .08% is the legal limit in New York. There really is no such thing as a legal limit because for two reasons. First, the New York State Vehicle and Traffic Law ("VTL") penalizes someone for driving while his or her ability to operate a motor vehicle is impaired by alcohol (VTL 1192.1). This is commonly referred to as a "DWAI." Thus, if your ability to operate a motor vehicle is impaired to "any extent" then your guilty of DWAI.
Second, BAC is independant of whether someone is impaired or intoxicated. A person could be impaired, and even intoxicated, by alcohol with a BAC as low as .01%. Because people metabolize alcohol differently, a BAC reading is just one of many factors.
Therefore, having a BAC below .08% will not be your get out of jail free card. Accordingly, blowing into a pbt device or any other machine designed to measure BAC after having a few cocktails will hurt more than help. The next section discusses the distinction between driving while intoxicated and driving while having a BAC of .08% or higher
driving while intoxicated per se
Driving while intoxicated versus driving while intoxicated per se
In addition, having a BAC of .08% or higher is A CRIME even if you are not impaired or intoxicated (driving while intoxicated per se). This means you can be as fit as a fiddle, but if your BAC is .08% you have committed a crime. It's a separate crime from driving while intoxicated ("DWI") and they are both misdemeanors.
Portable breath test versus chemical test
There are tons of distinctions between a portable breath test ("pbt") and a chemical test ("breathalyzer"). The most important distinction is that the pbt results are not admissible in court while the chemical test results are. Two very different machines are used for each. The machines used for chemical tests are not portable, they are tested constantly and backed by science. In other words, it's extremely difficult, to create reasonable doubt by attacking the machine used to administer your chemical test. But if you refuse, then there is no evidence of your BAC. Without a BAC reading, prosecutors will have a more difficult time proving the case. However, there are consequences for refusing.
Some consequences of refusing
If you refuse, your driving privileges may be revoked and the use of the refusal may be used as evidence against you. The officer will read from a card explaining the consequences of refusing. Speak with an attorney to find out the full consequences of refusing the tests.
Standardized Field Sobriety Tests: A brief summary
SFST's ARE DIVIDED ATTENTION TESTS
They test the subject's ability to follow instructions AND perform physical tasks. Alcohol interferes with our brain's ability to process information, perform multiple tasks and concentrate, among other things. The results of SFST's correlate with how impaired/intoxicated a person is. Each test has an instructional portion and a performance portion.
There are three portions of the test. They are as follows:
- The horizontal gaze nystagmus ("HGN").
- The nine-step walk and turn, and;
- The one-leg stand.
HGN‑ When the police officer puts a pen in front of your nose and directs you to follow the pen. The officer is looking for an involuntary jerking of your eyes. It can't be controlled, which is why it is the most persuasive of the three.
Nine step walk and turn ‑ You take nine steps forward, toe to heel, then nine back the other way. It's not as easy as it sounds.They must be performed exactly as instructed, which can be difficult even for someone who has not had any alcohol to drink. First, you can't sway. Second, you can't use your arms to balance. Third, you can't step outside of the line. Fourth, your feet can't separate more than 6 inches. The list goes on. There are 8 different signs, called "e;clues" of intoxication.
One Leg Stand ‑This test requires holding one foot about 6 inches from the ground while counting one-one thousand, two-one thousand etc. until the officer says to stop.
Non‑Standardized Tests There are also some non‑standardized tests called "Romberg Tests." For example, estimating thirty seconds and touching your nose with the tip of your pointer finger while your eyes are closed. And no, counting the alphabet backwards is not one of them.
This post barely scratches the surface of a complex field rooted in science. It is merely a brief overview. The best option is to refrain from having any drinks before driving. But if you find yourself in one of the situations described above, it is important to think about your options, and the consequences associated with choosing one over the other. Generally, refusing the tests is the best option because you remove scientific evidence from the equation; evidence that will ultimately be the strongest evidence of your guilt. On the other hand, if you perform well, it could be useful to your case. The choice will always be yours. This post is intended to help educate you. The more you know, the better informed you will be to make a decision.
Chad J. LaVeglia is a trial lawyer and managing partner of the Law Office of Chad J. LaVegla PLLC, located in Hauppauge, New York.
He practiced criminal law for nearly a decade as both a prosecutor on Long Island and a public defender in Brooklyn. Chad tried multiple DWI cases and received training from law enforcement and professionals who are experts in the field. He now practices in the areas of criminal law, matrimonial, and civil litigation. Learn more by visiting Law Office of Chad J. LaVeglia's website.
This post is not legal advice. It is intended for educational purposes only and is based on the author's experience and opinion. This is not a legal analysis. Nothing in this article endorses breaking the law or drinking and driving. You must speak with an attorney for legal counsel. This post does not replace or even supplement the advice of an attorney licensed to practice in New York State. Nothing in this post creates an attorney client relationship. You rely on this information at your own risk and hold the Law Office of Chad J LaVeglia PLLC harmless for any consequences that my arise by your reliance on this information. In other words, if you rely on this information, you're fully responsible for the consequences, if any.