There are many potential defenses in any particular DUI case due to the shear number of steps needed to prepare evidence needed for prosecution. At any point in the technologically and personally challenging procedure of a DUI arrest, the possibility of a misjudgment, an omission, human or machine error that could render the results questionable is highly possible, maybe even probable. There are inherent problems with the methodology used to collect evidence, as well as the possibility of inadequate training and/or unwillingness on the part of arresting officers to correctly administer tests and make conclusions that might prove difficult for trained medical personnel to make.

Though not advisable and, unless the driver is a minor, it is important to understand that it is not illegal to drink and then drive. A person can drink an alcoholic beverage and then drive and still be legal under the law. This is because the government must prove that the driver was impaired or above the per se level of 0.08 before he or she can be lawfully convicted. If a driver is below the blood alcohol content (BAC) 0.08 level, he is not considered impaired, though the driver may find himself charged with the lesser offense of “wet reckless” in lieu of a DUI charge. Simply having alcohol on your breath is not sufficient proof that a person is legally unable to drive.

Field sobriety tests (FSTs), are a series of exercises designed in theory to test balance, coordination, and divided attention (the ability to do two things at once). They include 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.

Frequently, officers have already made up their minds to make an arrest when they give the FSTs and will administer them simply to merely support their assumption that the suspect will inevitably “fail.” Though The National Highway Traffic Safety Administration has created certain minimal field sobriety tests to ascertain whether a citizen is actually legally intoxicated, many officers either fail to use the tests or misuse them in the field. Contrary to what many drivers believe, FSTs are not legally required and you may decline to take them with no adverse legal consequences, whereas refusal to submit to chemical tests may have serious consequences.

A problem often seen the with procedures utilized when administering the breath test is the violation of Title 17 of the California Code of Regulations which mandates that the individual being tested be continuously observed by the officer for a minimum of 15 minutes prior to the test. This requirement can be easily overlooked by an officer eager to proceed with an arrest. Additionally, Title 17 sets forth other requirements for California DUI chemical testing and a violation of any of these leaves the BAC result open to question.

Daniel R. Perlman, Esq.

Law Offices of Daniel R. Perlman