How Does the Prosecutor Prove I was “Impaired”?
As was mentioned previously, the final part of the prosecutor’s case concerns proving impairment or that the defendant’s breath/blood content was 0.08 or higher.
When proving impairment, a prosecutor will look to the same four clues in every case. They are:
- Driving Pattern
- Demeanor / Behavior of the Suspect
- Performance on Field Sobriety Exercises
- Breath and Urine Testing
- Blood Testing
Driving Pattern
A criminal attorney has to remain objective about his/her analysis of a client’s driving pattern. At the end of the day, one has to consider whether it supports or negates a theory that the driver was impaired. Sometimes people swerve in lanes because they are texting… or because they are distracted by screaming kids… or because they are drunk. By itself, driving pattern rarely is used to make a case for prosecutors, unless it is really bad. In most cases, it is one piece of a greater image.
The following questions should be considered when evaluating driving pattern:
- Did the defendant swerve all over the road?
- Did he or she fail to maintain a single lane?
- Was the defendant speeding?
- Did he or she run a stop sign, red light, or other traffic control device?
- Did the defendant cause a car accident or crash their vehicle into someone else’s property?
- Did other vehicles have to take evasive maneuvers to avoid an accident with the defendant?
- Did the defendant drive the wrong way?
- Did the defendant drift in his lane, speed up then slow down, or drive in an erratic manner?
Ultimately, if there was anything out of the ordinary about the defendant’s driving pattern, you can rest assured that the prosecutor will attribute it to impairment?
Demeanor/Behavior of the Suspect
Like a driving pattern, if there was anything out of the ordinary about the defendant’s behavior, the prosecutor will argue that such behavior is proof that the person was impaired. This is especially the case when a defendant exhibits the obvious signs of impairment, such as slurred speech, belligerent behavior, odor of alcohol, and the like.
But don’t be discouraged!
Every single police report ever written in the history of DUI all begin with the same boiler plate physical description of the arrested person: that the person had “red, bloodshot, watery eyes”, that they had “slurred speech” or a “thick tongue”, that they had an “odor of alcoholic beverage emanating from their person”, and a “flushed face.”
That said, many police cars are equipped with dashboard cameras. Additionally, as times are evolving, we will soon see police officers equipped with body cameras. This can be good and bad. On the one hand, if you were not impaired, the video evidence will help you. If you were drunk, it will hurt you.
Ultimately, the prosecutor will be using the officer’s testimony and video evidence about your behavior and physical appearance as examples that illustrate your level of impairment.
Sobriety Exercises
Commonly referred to as “Field Sobriety Exercises” or “FSE’s” for short, these exercises were designed many years ago to test a driver’s level of impairment. Like driving, FSE’s are considered “divided attention tasks.” That means a person is subjected to a series of tests that challenge a person’s ability to follow simple instructions while performing simple physical acts at the same time.
Think of what driving entails – following simple instructions like, stop, go, yield, etc. while simultaneously performing simple physical actions like pushing a break, turning a steering wheel, engaging a turn signal, shifting a transmission, etc – all while being alert enough not to crash into other objects and get to wherever it is you are headed.
For example, in the “Walk and Turn” exercise, a driver is asked to take a specific number of steps in a straight line, heel touching toe. The driver is also instructed not to start until told to do so. By having a person walk in this manner, a police officer is able to determine if a driver can follow simple traffic control devices (such as red lights and stop signs). A police officer is also able to determine if a person has the physical wherewithal to walk without falling over, losing balance, or making simple computational errors.In a sense then, FSE’s were intended to mimic the essential aspects of driving. Functions such as stop, go, travel in a straight line, turn when you are told, don’t turn when you’re not supposed to, are all simple commands that drivers face on the road and investigators test in FSE’s.
Florida, like most states, uses the “Standardized Field Sobriety Testing (SFST)” as developed by the National Highway Traffic Safety Administration (NHTSA). The NHTSA’s own website shows statistics proving that the tests are not accurate. A 1998 study showed that when looking at the battery of three tests combined, they have a 91% accuracy rate in predicting whether someone is actually too drunk to drive. That may sound pretty good, but what that means is there is a one in ten chance the test will label you intoxicated, when in fact you are NOT intoxicated. An earlier study showed a one in five chance that you would be falsely accused of DUI based on one of these tests.
The SFST test consists of three parts:
- HGN Testing. Horizontal Gaze Nystagmus (HGN) is a jerking of the eyes that happens when the eye is looking to the side. Normally this jerking only happens when you move your eyes quickly far to the side. Someone affected by alcohol will show this jerkiness in eye movement at an unusually small angle and speed of movement. If your eyes can’t smoothly follow a moving object, or if this jerkiness is present, the police officer may suspect you of being intoxicated.
- Walk-and-Turn. This is the famous “walk a straight line” test. The officer will tell the person being tested to walk nine steps, heel-to-toe, on a straight line. After the nine steps, the person is asked to turn on one foot and do the same thing in the opposite direction. The officer will be watching for eight different indicators of impairment, like stopping to regain your balance, not being able to stay on the line, etc.
- One Leg Stand. This is a very simple test. Stand on one leg, with the other leg held six inches off the ground for 30 seconds. Sway or use your arms for balance, and you can fail. Naturally a klutz? Tough, you can fail anyway.
The quoted “91% accuracy” rate only applies if the officer has you do the tests properly. Experienced DUI attorneys can tell you that all too often, the officers giving these tests either do them flat out wrong, or do them in a way not specified in the manual. In such cases, the field sobriety test has a ZERO reliability score.
The “Finger to Nose” exercise is a fourth exercise commonly used when a DUI suspect has an injury that prevents him/her from performing the walk and turn or the one leg stand. In this exercise, a person is asked to stand at attention and then lift their arm, on command, aiming for and then touching the tip of their nose. Again, just like turning a steering wheel to maneuver a moving car to a very specific location, this exercise tests a person’s ability to lift and turn their arm, aim for a very specific point, and follow simple instructions.