What if you just have poor balance?
January 29, 2007 3:04 AM   Subscribe

Why don't law enforcement agencies in the US use breath-analysers to accurately check drivers' blood alcohol levels?

While watching "Cops" tonight, I saw a police officer give a sobriety test that involved the suspect having to walk in a straight line. This seems kinda antiquated. Why not have breath testing devices? (And on a side note, is such a sobriety test admissible as evidence in a drink-driving offence?)
posted by lazy robot to Law & Government (24 answers total)
I'm not sure the police care how accurate it is, particularly if there's a hefty fine involved and errors tend to be false positives.
posted by Mr. President Dr. Steve Elvis America at 3:12 AM on January 29, 2007

They do.

But the field equipment is a) A little pricey, and b) not allowed in court. All they're looking for is evidence to take you down to the station and give you a real test with equipment that's certified and calibrated to hold up in court. They can get that with a portable breathalyser, if they have one. And it had fresh batteries. However, there is almost always a straight line around when you need one. Or the nose touching thing.

And it makes a much better scene for TV than blowing into a box.
posted by Ookseer at 3:17 AM on January 29, 2007

I think the police need to establish probable cause before using the breathalyzer and/or drawing a blood sample and that is the purpose of the field sobriety test. I'be been stopped 3 times in checkpoints with beer on my breath and the California Highway Patrol has always insisted I go through the field sobriety test first even though I volunteered to take the breathalyzer. FWIW, the DUI threshhold is .08 amd I failed the sobriety test every time despite never showing a blood alcohol level greater than .04

The sobriety test is videotaped and can be used as additional evidence in court.
posted by buggzzee23 at 4:35 AM on January 29, 2007

In case you're interested: California Vehicle Code re implied consent
posted by buggzzee23 at 4:51 AM on January 29, 2007

I used a breathalizer once. If you had consumed an alcoholic beverage in the last 20 minutes or so, it was way off. That's another reason to wait to get back to the station to breathalize you.
posted by Plutor at 4:52 AM on January 29, 2007

Most police officers in most jurisdictions (this is a hard thing for non USians to understand, but the laws and practices and SOP differ by state and by municipality, so what you see / hear / get away with will vary) do have breathalizers and do use them.

They're not admissible in court. They just "gather evidence" toward probable cause.

Also ookseer is right: they probably edited that part out from the stop. Man blowing into box: BORING. Man swaying on the side of the road: HOTTT MUST SEE TV.
posted by zpousman at 5:16 AM on January 29, 2007 [1 favorite]

I think buggzzee is on the right track - they're ginning up "probable cause" to 1) arrest and 2) "search" you, i.e., take you down to the station for a court-admissible BAC test on their lab-quality machine. As he suggests, the field tests are often difficult even for sober people, especially when the slightest hesitation or stumbling can be construed as failure.

In a lot of states (I can't venture to guess the proportion overall), the touch-your-nose, jump-on-one-leg hijinks are technically "voluntary," lending credence to the probable cause explanation. However, the police can be very insistent and sometimes states even impose civil penalties (like revocation of license) for denying officers' "requests" that you complete field sobriety tests. So, damned if you do & damned if you don't - try not to get pulled over at night.
posted by rkent at 5:50 AM on January 29, 2007

This is a bit anecdotal, and possibly biased, but a friend who is in the field of criminal defence says that the "walk a line" sobriety test is a test that even sober people generally fail. She told me of a conference where a bunch of (presumably sober) lawyers were asked to go through the test, and they all failed.
posted by jepler at 5:59 AM on January 29, 2007

I got pulled over once and the cop thought I'd been drinking. He didn't give me any balance type tests, but had me blow into a small portable analyzer. I passed and that was it.
posted by DieHipsterDie at 6:17 AM on January 29, 2007

Drugs don't show up on a breathalizer; see: Nick Nolte, GHB.
posted by glibhamdreck at 6:58 AM on January 29, 2007

They do use breathalizers but there's lots of good reasons to make it a second test instead of a first one. For one, breathalizers only test for alcohol. They can't catch marijuana, ecstacy, meth, LSD, etc etc. The field test is a general imparement test more than an alcohol test.
posted by chairface at 7:00 AM on January 29, 2007

I think buggzzee is on the right track - they're ginning up "probable cause"

This is correct.

to 1) arrest

Not really. You are already under arrest when you are pulled over/stopped. Don't believe me? Try to leave. You are under arrest when your freedom to leave the scene is eliminated by the state.

and 2) "search" you, i.e., take you down to the station for a court-admissible BAC test on their lab-quality machine.

The Breathalyzer test is considered a search, if I recall correctly. So it basically goes like this: cop sees you driving erratically which gives them probable cause to pull you over; they get you to voluntarily do the stupid human tricks which gives them probable cause to suspect impairment; they then get you to voluntarily do the Breathalyzer which gives them probably cause to suspect alcohol impairment and to take you "downtown"; they might get you to consent again to search/seize your blood for tests to prove their case.

Also, I think most states have laws now that refusing to consent to the tests results in suspension of the drivers' license for 6 months - 1 year.

I won't give you any legal advice, but I can tell you that I would never submit to any of these tests if I had anything at all to drink. The license forfeiture for a year is extremely minor in comparison to a DWI conviction. I'm not one of those people who take the position that I would refuse even if sober due to fear of a false positive. That is so unlikely as to be not even worth consideration. But I can self-assess. If I had more than a couple of drinks, I would refuse the field sobriety tests and refuse the BAC tests. The Fifth Amendment is your friend. You can't be required to give evidence against yourself. Without that evidence, there is precious little to convict you of DWI, and the punishment for not consenting to the tests is infinitely preferable to a DWI conviction.
posted by dios at 7:28 AM on January 29, 2007 [2 favorites]

According to the scare literature circulated by the police in Washington, you can still be charged with DWI if you refuse to take a test after a traffic stop. Your refusal, along with the officer's observation of your behavior, is used as evidence of your guilt.
posted by rhiannon at 8:58 AM on January 29, 2007

chairface writes "The field test is a general imparement test more than an alcohol test."

Yes. The field test checks for alertness and some drugs (including alcohol). You can be just as impaired from 72 hours without sleep as you can from a dozen beers.
posted by Mitheral at 9:07 AM on January 29, 2007

They can and do use them. But thanks to too many lawyers these days, the burden of proof is much higher. An Alcoholic Beverage Control officer I know said that if they catch an obviously underaged drinker at a concert or something, they have to take samples of the drink and send it to the FBI lab so they can say "yes, it was beer." Otherwise the question of what the liquid actually was would come up in court. Even if it they witnessed the kid open a fresh beer.

Your laws may vary depending on where on Earth you are, obviously.
posted by drstein at 9:23 AM on January 29, 2007

 to 1) arrest

Not really. You are already under arrest when you are pulled over/stopped. Don't believe me? Try to leave. You are under arrest when your freedom to leave the scene is eliminated by the state.

I am aware of the 4th/14th Amendment definition of arrest (actually "seizure"). But if this is the case, why are things like officer questioning ("have you been drinking tonight?") and field sobriety test observations (of stumbling, hesitation) admissible, since officers never, ever administer Miranda warnings at the beginning of a traffic stop?

Anyway, I think we're mostly on the same page with our analyses, but I don't see where all this cultivation of probable cause is relevant if you construe the arrest as beginning with the pullover. At that point they can basically do whatever they want as a search incident to arrest (and don't give me the Chimel line that such searches are limited in scope). The pull over is a Terry stop at most. In fact it's basically the textbook example.
posted by rkent at 9:38 AM on January 29, 2007

rkent: you raise a good point. Admittedly, I am not an expert in the field of Crim Pro. There is at some level of a distinction to be drawn between a "seizure arrest" and a "custodial arrest." Where that line is crossed, I leave to those more well read in the subject. Miranda has to be read before interrogation after a custodial arrest. My understanding is that police don't define the initial sobriety tests as "interrogation pursuant to a custodial arrest" so that is how they justify not giving you the Miranda warning. But I can't imagine that is a legally accurate argument. My sense is that you clearly are in the police's custody once you are told to get out of the car and submit to their instruction. My sense is also that it is clear their request to get you to walk a line is an interrogation. I cannot say whether this has ever been challenged--I'm sure it would have been-- but if I get some time, I'll do some Westlaw browsing and see.

I will say this: my sense is that there is a decent likelihood that the current state of DWI procedure is violative of constitutional rights. I would be fascinated to learn what the Supremes would do with it.

With your Terry Stop question, I think that is the point of the intial test. You can pull someone over for erratic driving, but it is under the lower reasonable suspicion standard. But before you do a search beyond a pat down, you have to have probable cause. That is what the field sobriety tests give. Once they have that, they can then search you to see if they have probable cause to arrest you for DWI: i.e, the Breathalyzer, but they still need your consent due to the invasive nature of the search.
posted by dios at 10:08 AM on January 29, 2007

Interesting: see Kanikaynar v. Sisneros, 190 F.3d 1115 (10th Cir. 1999) and Pennsylvania v. Muniz 496 U.S. 582 (1990).
posted by dios at 10:23 AM on January 29, 2007

A guy I used to know who was a cop says that when they ask you to follow their finger as they wave it around, they pretty much know you're drunk then. The rest of the tests (walking a line, touching your nose with your fingertips, juggling oranges while tap dancing and singing the Catalina Magdalena Lupensteiner Wallabeiner song) are just to gather further evidence for probable cause.
posted by kindall at 11:20 AM on January 29, 2007

I will say this: my sense is that there is a decent likelihood that the current state of DWI procedure is violative of constitutional rights.

Heh, good point. I'm not really trying to go so far out of my way to save the constitutionality of the present system - it actually seems rather outrageous, whether it technically meets due process requirements or not.
posted by rkent at 12:12 PM on January 29, 2007

Don't implied consent laws pretty much eliminate the requirement of probable cause in DUI stops?

Oops, there goes the accuracy of the breathalyzer test. Repeat once every 15 minutes until sober. ;)

Given the general inaccuracy of the field sobriety test, I can't imagine it's useful for anything if the case makes it to court. That's pretty rare these days, though; trials are passe, plea bargains are the in thing.
posted by wierdo at 12:40 PM on January 29, 2007

I can't imagine it's useful for anything ... plea bargains are the in thing.

And you don't imagine that adverse evidence puts pressure on defendants in plea bargaining situations?
posted by rkent at 1:02 PM on January 29, 2007

kindall sez: A guy I used to know who was a cop says that when they ask you to follow their finger as they wave it around, they pretty much know you're drunk then.

Well, yes and no. This is called the Gaze Nystagmus Test, and it relies on a physiological response of the eye to intoxication. This DUI lawyer also has a pretty good description, with procedures.

Each of the various field sobriety tests (FSTs) is not individually 100% accurate (transcript of some cross-examination relating to the nystagmus test, which has issues because some small fraction of the population may produce false positive results), so multiple tests are performed to get that whole probable cause level of assurance. My recollection is that we had to perform three separate FSTs to obtain probable cause (the set depending upon the behaviors being exhibited by the suspect).

Also, to answer the original question, one reason these tests are done instead of a portable breath tester (PBT) because the field sobriety tests check for many kinds of intoxication or impairment (drugs or alcohol), whereas the PBT only does alcohol (unless they've gotten better since I last checked). I don't have my old FST cards handy, but there is a specific procedure for each test, written out on a card, with different responses indicating possible influence of different things (e.g., if the suspect can count to 100 in three seconds, they might be on speed).

Also, there was some debate about procedure above; the deal is that you're in investigative detention while the tests are being performed. You're not necessarily under arrest at this point (in the "off to jail" sense; you have been "seized" though, and are not free to leave).

In other words, the officer has reasonable suspicion to believe something hinky is afoot (which they have to have in the first place to stop your car, but that could just be a burned out tail light on your car). They can then detain you pursuant to the investigation, but it's not a DUI investigation unless they have some evidence in that regard (e.g., driving behavior, behavior during contact, your new Budweiser cologne, etc). At that point, the FSTs and/or PBTs come into play. You're not under "go to jail, Miranda warning" arrest unless the investigation provides probable cause, but you're not free to leave during the investigation (because there is reasonable suspicion, which is enough to detain you).

Search incident to arrest takes place after the "go to jail" arrest, it's not part of investigative detention. Terry v. Ohio may permit a pat down for weapons, but that's all.

Implied consent doesn't enter the fray until there is some reasonable grounds for the officer to believe that the subject is intoxicated. The police can't just hit every driver with a PBT or FSTs: there must be an articulable justification.

Disclosure: I used to be a reserve police officer (in Washington state in the US), and the above is based on the training I got at that time. My department didn't have portable breath testers, so I've never used one of those.
posted by doorsnake at 2:14 PM on January 29, 2007 [2 favorites]

Anecdotally, I was on a jury for a case prosecuting a DUI based only on the Field Sobriety Tests and the original traffic violation (running a stop sign); the defendant had refused all other tests in the field and at the station. They didn't even have the FSTs on video tape, because they had moved out of range of the in-car camera in order to adminster the tests on level ground.

The trial ended abruptly on the third day. They didn't tell us why, but I assume there was a plea. However, my fellow jurors were chomping at the bit to convict the guy. I'm not sure what would have happened had we actually gone to deliberate, but based on that experience I can definitely imagine that some juries would convict with only the FSTs.
posted by everybody polka at 9:30 PM on January 29, 2007

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