You DO NOT have to submit to these tests.

These Field Sobriety Tests have varying degrees of scientific weight, and are mostly gauged subjectively – based on the officer’s “observations.” Remember, if you have been asked to submit to FSTs, the officer probably already suspects you of DUI and is just looking for more probable cause for arrest.  And it doesn’t take much…

You may think that you can “pass” these tests and be on your way, but that is rarely the case.  On each test, the officer is looking for a minimum number of clues to suggest that you are Driving Under the Influence, and whether or not you’ve been drinking, and however well you think you’ve done on these tests, you may be providing the officer with the “clues” needed for arrest.  REMEMBER: You DO NOT have to submit to these tests.

Though there may be legal consequences and license implications for your refusal to submit to Field Sobriety Tests, it is still your right to refuse them, and without results from these tests, it can be difficult and often impossible for the State to convict you of Driving Under the Influence (DUI).

The most commonly administered roadside Field Sobriety Tests (FSTs)  include:

• PBT (Preliminary Breath Test)
• HGN (Horizontal Gaze Nystagmus)
• Walk and Turn
• One-Legged Stand

While the tests described above are the most common Field Sobriety Tests a driver might encounter when stopped and suspected by the police of DUI, other tests and lines of questioning may be used.

Contact the experienced Horlick Law Firm to discuss the specifics of your case today!

The three (3) Implied Consent warnings in Georgia refer to Drivers Over 21, Drivers Under 21, and Commercial Driver’s License holders.  After a driver has been arrested for Driving Under the Influence (DUI), the officer will read him or her an Implied Consent warning from an orange card.

By the time the implied consent warnings are read to many people charged with DUI, they are already under arrest. Many feel that they have already submitted to all the Field Sobriety Tests and questioning that the officer has asked of them, and have still been arrested, so “why should they comply with the officer’s request any more?”

While this is an understandable position, and drivers licensed in the State of Georgia do have the right to refuse this testing, they should be aware of the consequences of doing so.  This is what the reading of the Implied Consent notice is meant to accomplish.

Drivers must be aware that, as unfair as it may seem, if they refuse to submit to such chemical testing after the proper Implied Consent warning has been read, the law imposes some harsh consequences.  If a driver refuses such chemical testing, he or she will be face an administrative license suspension, separate from his or her criminal proceeding, and face a mandatory suspension of driving privileges for at least one (1) year as a result. In many cases, you have ONLY 10 DAYS to respond and request this hearing, or your license will be automatically suspended!

You have the right not to incriminate yourself, and many times, answering what may seem to be harmless questions can do just that.  When speaking to any law enforcement officers, keep in mind that anything you say can AND WILL be used against you.

You should assume your statements and actions are being recorded (most officers have video cameras running in their vehicles and audio microphones on their uniforms), and that these statements and actions WILL BE used against you in any prosecution.

You should assume that, from the second you are pulled over, and often before, the officer is looking for further evidence or probable cause that you have violated the law, whatever law it might be.

In most cases, whether or not it seems this way, you are already under suspicion when you are stopped.  Be mindful that your encounter with the police begins unbalanced.  The police are always looking for admissions, clues, and further indications that you have violated the law. Whenever you are stopped by the police, and for whatever reason, keep this in mind.

Be respectful and polite in your encounter, but remember that they are looking for evidence that you have committed a crime.   They are free, and it is their job, to look, but you have no obligation to help them  collect evidence against you.

Horlick Law Firm encourages you to respectfully decline to answer any questions that may incriminate you and immediately assert your desire to speak to your attorney.  If you have any questions about being stopped and questioned by the police, please contact Horlick Law Firm immediately for a free consultation.

Breathalyzer DUI Blood Alchohol Test

The Breathalyzer is the most commonly used device for determining one’s Blood Alcohol Content (BAC) from a breath sample.  The Breathalyzer test is usually administered after one is arrested and charged with Driving Under the Influence (DUI), at the jail or police station. If you are licensed to drive in the State of Georgia, you impliedly consent to a chemical test of your blood, breath or urine at the request of a police officer.  Refusal to submit to these tests can subject you to an administrative prosecution and a minimum of one (1) year suspension of your license.

The machine currently used in Georgia to administer these chemical tests is the Intoxilyzer 5000.  This is a big typewriter-size machine in the jail or police station in which breath samples are taken from a subject, analyzed, and one’s BAC (Blood Alcohol Content) is calculated in grams.  While the Breathalyzer, when properly calibrated and administered, can provide a fairly accurate indication of one’s blood alcohol content, it far from perfect.  There are numerous design flaws inherent in the machine, and many physical and environmental factors and conditions (such as acid reflux, mints, gum, and mouthwash) can affect the reading.

(*These values are different for drivers under the age of 21 and drivers of commercial vehicles).

A driver may also be charged with DUI Per Se if, when driving or being in actual physical control of a moving vehicle,  there is any amount of marijuana or controlled substance in his or her blood or urine.

The most common method of testing one’s BAC (blood alcohol content, or concentration) is by submitting breath samples to a Breathalyzer.  However, one’s BAC may also be tested by a chemical analysis of their blood or urine.   If this method of testing is utilized, the results must be submitted to the lab and analyzed before a determination of BAC can be made.   If the blood or urine test indicate the presence of marijuana or other controlled substances, regardless of whether any alcohol is present, a driver may be charged with DUI Per Se.

The One-Legged Stand field sobriety test is, like the Walk and Turn, not scientific.  It is an opportunity for the officer to observe not only your physical dexterity, but your ability to pay attention to and follow directions.  The results are subjective, and, like any and all Field Sobriety Tests (FSTs), you DO NOT have to participate.

Procedure:

The officer will ask you to stand in one place and hold one foot six (6) inches above the ground.  While you are holding this foot off the ground, the officer will ask you to count out loud, “in thousands,” until you are told to stop.  The officer will tell you that you must keep your eyes on your feet, your arms at your side, and your toes straight while you perform this test.

Clues:

When administering this test, the officer is looking for four (4) clues.  He or she is looking to see if you use your arms to stay balanced, if you sway or hop while trying to balance, and if you put your foot down before the officer tells you the test is over.  In Georgia, meeting at least two (2) of these criteria can justify an arrest for Driving Under the Influence.

Remember: The officer likely already suspects you of Driving Under the Influence (DUI), and is just looking for more evidence to stack against you.  The officer’s initial suspicions may very well affect his or her opinions on whether you performed this test adequately.

Remember, too, that this test is never performed in a vacuum.  It must be performed under optimal conditions (the best being a hard, dry, level, unobstructed surface), and essentially expects people of all ages, physical and pre-existing conditions, to perform and be subject to the officer’s unchanging set of standards.

It may be unreasonable to expect a 65-year old man with arthritis to perform as well as a 22-year old ballerina, and the results can be surprising, but nonetheless, the criteria remain the same.  As such, the officer’s conclusions are always subject to attack and interpretation by a skilled defense attorney.

The chemical testing of a driver’s BAC (Blood Alcohol Content) is scientific, and therefore more reliable than the officer’s suspicions or subjective determinations of impairment based on the results of any Field Sobriety Tests (FSTs).  However, to be admissible, the test must be administered properly, and as mentioned elsewhere on this site, many physical and environmental conditions such as acid reflux, electronic interference, or the presence of mouthwash or mints, for example, may cause these results to appear higher than they should.

The most common way that the police administer chemical tests of a driver’s BAC (blood alcohol content) is through a Breathalyzer exam.  BAC may also be tested by way of blood or urine analysis, however.

For driver’s 21 and over, a BAC of 0.08 grams or more can support a charge of driving under the influence per se (and a driver with a BAC below 0.08 grams may still be charged as a “less safe” driver).

For driver’s under the age of 21, because of “zero tolerance” laws, a BAC of 0.02 grams or more can lead to a charge of driving under the influence.  And for those driving commercial vehicles and suspected of driving under the influence, a BAC of 0.04 grams or more can support a charge of DUI.

By having a driver’s license in the State of Georgia, you impliedly consent to submitting to a test of your blood alcohol content upon request by law enforcement.  This Implied Consent condition (discussed more thoroughly here) means that, while you may still choose not to submit to a test of your blood, breath or urine, your refusal will be prosecuted separately from your criminal case (in an administrative hearing, discussed more thoroughly here), and can result in the suspension of your license for a minimum of one (1) year.

Like all Field Sobriety Tests (FSTs), this test is voluntary, and you do not have to submit to it.  Additionally, even if you do and the results indicate a presence of alcohol on your breath, there are many alternative explanations for these results that can create a reasonable doubt that the driver was actually under the influence of alcohol.

Many people think that the PBT is same as the “Breathalyzer,” and while it is similar in idea and form, it is much different.  While the Breathalyzer may be administered roadside, it is most often administered after arrest at the police station.  The PBT, however, is administered roadside, and is used to determine whether or not there is a presence of alcohol in a driver’s breath.

The PBT is often called an alco-sensor, and is used to determine probable cause for arrest for DUI.  The Breathalyzer, however, is used to determine one’s Blood Alcohol Content (BAC).  Though the PBT indicates an estimated BAC, this value is not admissible in court.  The PBT is only admissible to show the presence, or non-presence, of alcohol in one’s breath.

REMEMBER: The PBT is notoriously unreliable, as many factors can cause it to incorrectly indicate positively for alcohol — including acid reflux, and certain tobacco, mouthwash, or mints.    Mere indication of the presence of alcohol on one’s breath, without more, is insufficient to establish that one was driving under the influence (DUI) beyond a reasonable doubt.

If you do, however, keep in mind that the results are subjective.

You may think that if you “pass” the test, you will not be arrested, but that is rarely the case.  For one, because the results of the test are not so easily defined as “pass/fail,” and for two, this is just one of the tests that any officer will ask you to submit to.  He or she may not tell you how well you did on the test; he will just make his notations and ask you to submit to more.

The officer is looking for a combination of clues (probable cause) that you are Driving Under the Influence (DUI), and will administer as many tests as you agree to take to stack up this supposed evidence before making his or her determination.

The Walk and Turn test is an evaluation not only of your physical dexterity in performing the test, but also in your ability to pay attention to and follow the officer’s directions.

Procedure:

First, the officer will explain the directions and offer a short example of the procedure.  You will be asked to take nine heel-to-toe steps forward, pivot in a very particular manner, and take nine heel-to-toe steps backwards to the starting position.  The officer will ask you to count each step out loud.  He or she is looking for indications that you can follow directions, and that you may be physically impaired (for instance, not counting your steps out loud, taking more or less than nine steps in each direction, using your arms to balance, swaying, not pivoting correctly…).

Missing just two of these criteria can result in arrest in Georgia.  However, that doesn’t mean that you are guilty of DUI.

You may just be nervous. You may have a medical condition that makes it impossible to perform this test to the officer’s satisfaction.  The belief that you are under the influence is merely one inference that the officer may draw.  The results are subjective, and the officer is just looking to stack up probable cause for arrest.

Even ballerinas can fail this test.

The HGN (Horizontal Gaze Nystagmus) test is often known as the “pen” or “light” test.  This is because the officer administering the test usually uses a pen or flashlight to perform the test.

Without moving your head, the officer will ask you to follow a “stimulus” (usually a pen, a flashlight, or his or her finger) with your eyes as it arcs further and further towards your periphery.  In administering the HGN test, the officer is looking for up to six (6) clues of a twitching or jerking of your eyeballs prior to 45 degrees.

REMEMBER: Nystagmus is generally defined as the involuntary movement of the eyeballs, and can be , but does not by definition have to be, a result of a high blood-alcohol content.

Though that is certainly the  conclusion that an officer administering the test would like to draw, there are many alternative and justifiable explanations for nystagmus that do not require any blood alcohol concentration at all.

For instance, one may suffer from Nystagmus due to a neurological disorder, inner ear problems, congenital disorders, or occupational or labrynthine irritability.  If you suffer from any medical conditions including but not limited to these (there are about 100 non-alcohol related conditions that might cause nystagmus) and the officer administering the HGN test does not inquire about them, and/or the test was not administered properly, the scientific weight and admissibility of these results may be attacked.