quote:

Originally posted by egregore:

quote:

Why should anyone participate in a field sobriety test?

But you are, under implied consent, supposed to give a breath, blood or urine sample. Don't give your consent? Bye goes your license, and your car, because they towed and impounded it. Good luck getting it back without your license, not to mention the hundreds of dollars to bail it out of the impound yard.

A field sobriety test is not required to keep your license in Tennessee Egregore.

You are correct if refuse a blood or breathalyzer test in Tennessee you will lose your license for 1 year under civil forfeiture. The Officer can also get a warrant to compel a blood or breath sample.

quote:

Originally posted by wcb6092:
Why should anyone participate in a field sobriety test?

You are not required by law to perform them, and it appears they are highly prone to individual interpretation.

Same theory as why let the police search your vehicle or home without a warrant.

Maybe some of the Sig lawyers will chime in.

Most drunks don't think they're drunk. They think they can beat the test. Usually they can't. I have had the tests indicate that a person is sober or under the limit before, too, so that is a thing. I'm not out here looking to take people to jail unnecessary...if you're actually not impaired then I'd rather know that now and make sure you get home safe. And that has happened on numerous occasions.

Standardized Field Sobriety Tests (sfsts) are only one part of an OWI investigation. I can still get probable cause without them. I just have to be able to articulate my observations.

Here's a real life example:

Guy gets called in at 6am driving the wrong way down a divided 4-lane highway into heavy traffic. I find him and stop him...sketchy head-on traffic stop in the left lane, giant mess. Dude has slurred speech, red and watery eyes, and smells of alcohol. There's also an open container in plain view, he's belligerent and argumentative, thinks he's somewhere he's not, and refuses all the tests including the portable breath test (PBT) and the certified test.

He goes in cuffs, I fill out a PC affidavit with everything I witnessed, judge signs a warrant and off we go to the hospital for a blood draw that gets packaged up and sent off to the lab. He goes to jail with an automatic one year license suspension for implied consent refusal, and his car is impounded.

Now that dude was actually hammered. I don't remember the exact number, but he was up there.

But let's say he wasn't. Let's assume he's just a horrible driver, from out of town, blindly following his GPS into oncoming traffic (don't laugh I've seen it happen!), has a speech impediment, and has only had a few sips of that beer in the console. By refusing field sobriety tests and the PBT, he's now prevented me from observing a significant amount of evidence that might have exonerated him. We're still getting a warrant, he's still going to jail, and he's still losing his license for refusing the certified test. In a few months the lab results come back and he's under the limit. The OWI charges might get dropped, but he's now been through all of that unnecessarily, his license is suspended for refusal, and he's got no recourse against me because I established probable cause for his arrest in good faith based on the information that was available to me at the scene.

Obviously that's an extreme example and there's a lot of potential for intermediate outcomes in real life, but it's just a hypothetical to illustrate a point. Sometimes doing the tests works out in the driver's favor.

The real answer is there is a very real problem in TN state patrol arresting sober drivers. The Nashville news channels have done stories on it. There are zero repurchasing tkt he cops as of yet including Mr 8 wrong arrests so why stop ?

quote:

Originally posted by Lt CHEG:
I don’t like the notion of drunks on the road and I’m not saying that the SFSTs are bad, but it’s far from a perfect, completely objective test.

I don’t like the notion of them on the road either but I find hypocrisy wherever it lives. Distracted driving (playing on the pacifier phone) is worse than drinking and driving. Been proven, and not even an argument. DUI/DWI is a big thing yet millions of Americans, at least the majority on the roads here, are playing on the phone, looking down at it, holding it in their hand, touching on it, swiping, etc, and not paying attention to the road. Yet this is legal. Not hearing that people are getting pulled over and arrested and it’s worse than DUI/DWI. Crazy days we are living in. Drinking and driving, get busted, jail, bail bonds, attorney fees, court fees, probation, fines, blow into thingy to start your vehicle, expensive AF vehicle insurance. Maybe get fired from your job. Do the worse thing and stare and play with my precious while driving, Scott free and legal. No arrest. No fines. No nothing.

quote:

Originally posted by ElToro:
The real answer is there is a very real problem in TN state patrol arresting sober drivers. The Nashville news channels have done stories on it. There are zero repurchasing tkt he cops as of yet including Mr 8 wrong arrests so why stop ?

The media is always trustworthy. They never lie.

I'd bet most folks wouldn't execute some of the FST measures I've seen successfully. I'm sure as hell not going to try, my breath may be bad but it won't lie!

I could pass most of what I’ve seen requested in a field sobriety test except for the heel to toe line walk. I might be wobbly enough to trigger an arrest.

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Originally posted by Georgeair:
I'd bet most folks wouldn't execute some of the FST measures I've seen successfully. I'm sure as hell not going to try, my breath may be bad but it won't lie!

You don't have to do it perfectly. There's a certain number of clues we're looking for on each test and then the final decision is based on the overall observations. There's also a reason that there are multiple tests that each emphasize different physiological elements. The HGN eye test doesn't require any gymnastics on your part, and is a very reliable indicator in alcohol cases. We don't rely on it alone, however, because there is a small percentage of the population that has resting nystagmus even when sober. Just like we don't rely solely on balancing tests or the walk and turn, because individuals may have physical limitations that affect their ability to perform certain tasks. If the officer is doing the testing properly, he should also be asking about any of those things prior to administering the tests.

Like any investigation, you have to look at all the information and make your decision based on the totality. The more data points that an officer can collect, the more likely he is to make an accurate decision. SFSTs are one tool used to collect those data points, and they have the advantage of being standardized and vetted through scientific research to be an accurate indicator of impairment. They're not intended as a means to jam sober people up...the last thing I want is to hook somebody up for OWI and then later find out they were sober. There's nothing advantageous for me as an officer in that scenario, only scrutiny or punishment.

The flip side is if I incorrectly conclude someone is sober, let them go and then 30 minutes later they wreck and kill somebody. That's even worse. And it's not a hypothetical...I know guys who that has happened to. I can't just let somebody drive off if I have reason to believe they're impaired. So when somebody refuses field sobriety I've still got to make that decision, but now it's based on less information which increases the chances of me getting it wrong and an unwanted outcome for everybody.

Not entirely on topic, but I got stopped at a DUI checkpoint late last year, and the interaction went like this:
Cop - Good evening sir. Have you had anything to drink tonight?
Me - Yes. I just had a beer at dinner.
Cop - Ok, have a nice night.

And off I went. I am generally wary of the fact that police that pull me over are likely looking for evidence that I did something wrong, but sometimes you know what they are looking for and that it isn’t you.

- Bret

quote:

Originally posted by 92fstech:
You don't have to do it perfectly.
..... If the officer is doing the testing properly,

You should have started with "For me, you don't..."

The concern is running up against someone who isn't doing as well, due to inexperience, incompetence or as in this case excessive exuberance.

What is the reasoning for starting with these rather than just straight to the Breathalyzer testing? Is that test not much more accurate and objective than a random human subjectively judging another's physical performance and behavior?

For record, not challenging your position, I can imagine like everything it's a difficult spot to navigate. Just trying to better understand.

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Originally posted by sadlerbw:
Not entirely on topic

Not off topic in the least.

It’s human nature to fear things that people have little understanding of. And the media do not help matter with hit pieces like this. And it’s funny, for some reason Google is scrubbing searches for the former US Attorney for the Western District of Kentucky’s political leanings. At face value, why?

DUI enforcement is one of the most highly regulated, and hotly contested parts of criminal law. Defense attorneys love them. Historically, more court cases are contested for DUIs than any other type of criminal law. More trials and suppression hearings. And rarely are SFSTs called into question. Why? Because trial courts have scrutinized them just about to the point that if they are administered properly, there is not much to fight over them. And they have largely remained unchanged for the last 30 years. Implied consent becomes more strict about every five years. Why? Because they are a court accepted mechanism of gauging impairment.

Yet, you have posters that clearly don’t understand them, so they assume they are bad. One of the first questions mandated is “Is there any reason you can’t perform a balancing test?” And “Have you ever had an open or closed head injury?”. These questions aren’t good for the prosecution. But, you have to ask them. Reading implied consent is mandatory in most states. It’s not good for the prosecution either. But, it’s the fair and impartial thing that courts require. And it’s has to be followed or the SFSTs and possibly the DUI will get thrown out. SFSTs are as much about divided attention as they are about physical acts. Impaired drivers fail divided attention as badly as they fail the physical acts.

In the case of this, you have a left leaning public official, who gets involved in a collision, apparently fails SFST, and the evidence blood test shows that she had sleep medicine still on board by the time that it should have been out of her system. And people say never trust the government, but in the same breath the trust prosecutors to not cover up good cases for political favors.

And the repeated calls for the breathilizer ignores the fact that they are useless against drug/marijuana impaired drivers. Which the fact a blood test was obtained in this case shows that the trooper believed that alcohol wasn’t a factor. Portable Breathilizer Tests on the side of the road are inadmissible in courts. At least here. Because they are not evidence tests. But, SFSTs are. PBTs are not the magical devices that some are trying to make them. I wonder what those demanding a PBT would say if they get hit by a drug impaired driver, and then the cop PBTs him and lets him go because he blows all zeros despite being manifestly under the influence?

Oh, and less that .08 BAC does not mean that the driver is NOT under the influence. That’s another common misconception. I’ve arrested many times (and won) less than a .05

I would never submit to an FST. I have Neuropathy in my feet. I couldn't stand on one foot for more than two seconds without losing my balance, heel to toe Pftt! Doesn't mean I can't drive.
A question, if asked to do an FST, can I ask to skip the FST and do a portable breath test? Do all LEO's have portables? If we had to go to the station for a test, would I have to be arrested first?

I realize drugged driving is a thing, a few years back one article said CO was over 50% drugged as opposed to drinking.

I see it was dark in the video, likely evening. The little trace amount of sleep air from the night prior seems of little consequence. I don’t think it was enough to account for anything.


If not fired, the officer should get extensive retraining then desk duty for a while. There should be enough real miscreants out there to go after.

I pinched a lot of drunks without any FSTs at all. Mainly because they fell or nearly fell when I asked them to step out of their cars. Or could not stand without leaning on their cars. All convicted.
Another avoidance tactic: The drunk was involved in some easily avoidable crash and when I arrived, he or she would claim to be grievously injured, thinking that would keep me from arresting said drunk. Nope! Medic unit arrives, drunk is loaded inside and examined. I then ask both Paramedics (excellent experienced witnesses) if they detect alcohol. When they say yes, I race to the ER to give the drunk the Implied Consent law speech. Then get a blood test. Which is better than a breath test because it shows everything on board. Refuse the blood sample? Fine! Lose your license, get charged anyway with a high likelyhood of conviction.

quote:

Originally posted by Georgeair:

quote:

Originally posted by 92fstech:
You don't have to do it perfectly.
..... If the officer is doing the testing properly,

You should have started with "For me, you don't..."

The concern is running up against someone who isn't doing as well, due to inexperience, incompetence or as in this case excessive exuberance.

What is the reasoning for starting with these rather than just straight to the Breathalyzer testing? Is that test not much more accurate and objective than a random human subjectively judging another's physical performance and behavior?

For record, not challenging your position, I can imagine like everything it's a difficult spot to navigate. Just trying to better understand.

No offense taken at all. The whole reason I posted was to try to clarify how field sobriety testing works and answer any questions!

The reason we don't start with a portable breath test is because the courts prefer that our decision not be influenced by the number that we get back from that device. It's not a certified instrument, and like jljones said, it's not admissable in court. In my experience they are very accurate, however they are more susceptible to outside contamination and lack any checks against mouth alcohol that the certified instrument provides. So if a person has consumed alcohol, or burped some up, immediately before blowing in a PBT the result may very well come back higher than their actual BAC. The certified instrument at the jail has sensors built into it to check for that and it will invalidate the test and make you start over (with a waiting period) if it detects any.

The PBT is useful as a tool to help confirm my other observations, but it's not the only thing I need to look at. It also doesn't detect anything other than alcohol, so if they're impaired on a different substance (very common) the PBT result is useless.

Stupid story...we had a judge give a dude a conditional license on an OWI-Meth conviction, with his condition being that he had to have a functional interlock device installed in his car. You know, the tube thing that you have to blow into every so often to make sure you're sober otherwise it shuts your car off. Those test for alcohol, not meth, so I'm not sure what the judge thought she was solving by ordering that condition .

quote:

I have Neuropathy in my feet. I couldn't stand on one foot for more than two seconds without losing my balance, heel to toe Pftt! Doesn't mean I can't drive.
A question, if asked to do an FST, can I ask to skip the FST and do a portable breath test? Do all LEO's have portables? If we had to go to the station for a test, would I have to be arrested first?

I would ask you about that before administering the test, and if you said you couldn't do it I wouldn't administer that particular test and document why. I'd still offer the opportunity for you to do the other tests if you believed you could do them. Around here everybody has a PBT. If you refused everything else I'd still give you the opportunity to blow in that if you were willing. Then if we had probable cause to take you for the certified you'd be placed in cuffs and transported to the jail where the certified instrument lives. If you come back under the limit on the certified breath test I'd take you home. If you're over, you get booked.

That's assuming we're only looking for alcohol. If we're dealing with drugs then we have to do a blood draw, and since I've already established probable cause and we don't have any immediate tests results to refute it, you're probably going to jail.

quote:

Originally posted by 92fstech:
I would ask you about that before administering the test, and if you said you couldn't do it I wouldn't administer that particular test and document why. I'd still offer the opportunity for you to do the other tests if you believed you could do them. Around here everybody has a PBT. If you refused everything else I'd still give you the opportunity to blow in that if you were willing. Then if we had probable cause to take you for the certified you'd be placed in cuffs and transported to the jail where the certified instrument lives. If you come back under the limit on the certified breath test I'd take you home. If you're over, you get booked.

I mentioned that in an earlier post. If you're smashed and fail an objective breath and or urine and or blood test you're going down. That's why the one time I was suspected of DUI (I was a designated driver taking 3 drunk as hell friends home) the LEO smelled alcohol and had me step out of the car. I asked to go straight to the breathalyzer and passed. LEO and I went our separate ways right after I passed. I suspect when I got out of the car he wasn't smelling anything on my breath and believed my designated driver story. Pretty decent LEO in my opinion.

quote:

Originally posted by IntrepidTraveler:

quote:

Originally posted by 92fstech:
... You have to do a blood draw, and the results take months to come back...

Why is this? I go in for my annual physical and have a blood draw at 9AM. Results are trickling in at the end of the day, next day at the latest.

When a majority of every boood, urine, DNA test, fingerprint test, drug ID, etc… from a majority of agencies go to one or two state labs w/ a certain amount of techs you can see why they get backlogged by months.

Here's a bad one that's in the news in Louisville right now.

https://www.wdrb.com/wdrb-inve...f9-8b576f93c6fa.html

LOUISVILLE, Ky. (WDRB) -- Cuqita Boyd got into a minor car wreck while driving to work in January 2022, then was charged with driving under the influence after an officer claimed she didn't follow directions during a field sobriety test.

But Boyd was adamant she hadn't been drinking and asked to be given a Breathalyzer test on the side of the road to prove it so she wouldn't be late for her job as a U.S. postal worker.

The Louisville Metro Police officer, Samantha Davenport, denied that request, later saying she didn't carry a portable Breathalyzer in her cruiser. That "wasn't my thing," she said.

Taken directly to jail, Boyd took a Breathalyzer test about an hour later that seemed to prove she was telling the truth. The test results registered a 0.0 — showing no evidence of any alcohol in her system.

Boyd, still handcuffed and under arrest, then asked for an independent blood test and was taken to a hospital, continuing along the way to ask why she was being charged.

With Davenport looking on, a nurse told both her and Boyd the blood test was clean — with the medical record saying she was "clinically sober" with an "undetectable blood alcohol level."


Regardless, despite this critical lack of evidence, Boyd was briefly jailed and had to fight the case in court for 14 months before it was dismissed. She since has died.

"The officer continued the prosecution for DUI with the knowledge that she was sober," said attorney Greg Simms, who is representing Boyd in a 2024 wrongful arrest lawsuit against Davenport. "That's egregious misconduct."

quote:

Originally posted by doublesharp:
Here's a bad one that's in the news in Louisville right now.
…
"The officer continued the prosecution for DUI with the knowledge that she was sober," said attorney Greg Simms, who is representing Boyd in a 2024 wrongful arrest lawsuit against Davenport. "That's egregious misconduct."

And yet there is wonder and disbelief that law enforcement is not universally loved. And what about the prosecutor?

well, whether there’s a payout or not, if the article is true, there’s a nurse losing their license over that.