Chicago Criminal Lawyer Blog
Chicago DUI Attorney Fred Mark Dry Talks About the Portable Breath Test
Interviewer: If someone is given the field sobriety tests, are they still given the portable breath tests after that?
Fred Dry: Sometimes they’re offered the breath test before the field sobriety tests. Sometimes they are offered after the field sobriety test. The portable breath test is not something you’re required to take. It can only be used to justify your arrest, it cannot be used as evidence to prove that you’re drunk. So there is no legal consequence for refusing it. I recommend to people that they not take it.
The Scenario in Which a Motorist Performs the Field Sobriety Test Yet Refuses the Portable Breath Test
Interviewer: What would happen in a case if someone performed these standardized field sobriety tests and then refused the breathalyzer?
Fred Dry: if a police officer has you do the field sobriety tests and then asks you for a portable breath test, it’s probably for 1 of 2 reasons. One, he is either on the fence about your performance on the field sobriety tests and isn’t sure if he should arrest and needs something to push it one way or another. Or two, he doesn’t think you did well on the field sobriety test and would probably arrest you anyway but just wants one more thing to be able to use to justify the arrest. Is it possible to know which way it is? You could pass the portable breath test and still get arrested if the police officer thought you didn’t do well on the field sobriety tests.
If a Person Performs Well on the Sobriety Tests But Fails the Breathalyzer, they Will Still be Arrested
Similarly, if you do moderately well on the field sobriety test and then fail the portable breath test you would definitely be arrested. Ultimately, the fewer tests you take, the better off you are. Because every time you do one these things, you’re potentially providing evidence that will be used against you. The law permits an arrest for DUI when you are not able to safely operate your vehicle because of drug and/or alcohol consumption or when the alcohol concentration in your blood is too high. I recommend that because there is no legal consequence for refusing these tests, then there’s no real advantage to taking them. If you get arrested but there are no field sobriety tests to show and there are no machine tests of drug or alcohol content in your blood stream, it makes it very difficult to prove a DUI because the law permits you to drink and drive, it just doesn’t permit you to drink too much and drive.
The Impact of Miscommunication or Misinterpretation of Instructions Pertaining to a Field Sobriety Test
Interviewer: Are there any examples of how there would be miscommunication or misinterpretation on part by the police in the field sobriety tests?
Fred Dry: By the time the police officers are on the street giving a motorist a field sobriety test, they’ve done these exercises numerous times, both administering them and taking the tests themselves in the course of learning how to do it. Its normal to them, they’re accustomed to how it’s done. They are less able to make gradations in people’s performance when they haven’t instructed the driver in a completely clear and complete manner. And they are not sensitive to the reality that most people have never done this before and that full, clear and understandable instructions are needed before the tests can be completed satisfactorily. If the instructions are given poorly by the officer or they are not understood well by the driver, then you’re just not going to get a good performance in the field sobriety tests. It’s simple, if the instructions are not clear or if they are confusing, you’re not going to have a good outcome in the performance of the tests.
If a Police Officer Relates the Instructions Properly then the Results are Considered Reliable Otherwise Not
That’s why when the police are taught how to do these things; they’re encouraged to use the script that is in their training materials. If they use the script, the instructions are given in the best possible way. But when police officers have their own way of saying it and they do it in their own words, then sometimes the instructions that they give are not clear, understandable or defining the expectation of what the officer wants to see the person do. When people don’t perform well in these circumstances, it’s up to the driver’s lawyer to point out these problems and suggest to the court that the performance wasn’t as good as it might have been because the instructions weren’t good. We’ve all taken tests where they’re scored by a computer and the instructor at the beginning of the test will say, “Make sure you use your number 2 pencil, because the computer needs that type of density of lead to read the answers. If you use some other pencil, it may not read the answer because the computer is not capable of doing it”. This is an analogy: if you do the instructions properly, the outcome is reliable, if you don’t then the outcome is dubious.