Roadside Sobriety Test
On Tuesday, on the way to pick up Mike and see Superman, I was pulled over because I had a broken tail light.
Unfortunately, I had had a beer shortly before I was stopped, which meant that I was queued up to experience something special: The roadside sobriety test!
There were two officers in the car, and I had the feeling the one who was working with me was new at it. I was definitely nervous, but I know enough about my blood alcohol level to know that there was no way I was at a California DUI-level: 0.08%.
I stepped out of the car and was led over to a stretch of sidewalk.
First, the officer asked me to follow her finger with my eyes, not my head, as she moved it through the air, from left to right. My eyes slid all the way from the left to my right ear, as if I was trying to see my own ears. I guess that went alright, but she wasn't giving any feedback yet.
After the first physical test, she asked about 15 questions about my drinking and driving.
- Where are you headed?
Where did you come from?
Where are you now?
I had already told her I had had one beer, but she had follow up questions.
- Did you have any other drinks tonight?
Where did you drink the beer?
How long ago did you finish the beer?
How long did it take to drink it?
What type of beer did you have?
What size was the glass?
What have you had to eat tonight?
How much sleep did you have last night?
Are you on any medication?
Do you have any medical problems?
These questions seemed like they were designed to defeat any legal defenses I might have if and when my DUI case went to court.
I didn't think it would come to that, but I did find myself answering in a way which would demonstrate how lucid I was, instead of in ways which would help my legal defense, such as "I don't remember".
Next it was time for the physical challenges! There were two more. Before a physical test, she gave me the instructions on what to do. She warned me not to start until she told me to, and not before I understood the directions. I don't think I've ever paid closer attention to a set of instructions in my life!
Pass these tests and save $10,000.
First, she asked me to tap my fingertips together on my left hand, using my thumb, I was to tap each fingertip on that hand and count one to four as I tapped them. 1,2,3,4. Then I'd reverse it and count backwards.
4,3,2,1. Three times. No problem. I exectuted this flawlessly, and was ready to try the right hand.
The right hand test was just as successful.
The next test was to check my balance. She reminded me again to wait for all the instructions before I started.
This time I'd need to stand on one foot, with the other foot raised up about two inches, and I'd have to count off the seconds in this manner, "one-one thousand, two-one thousand, three-one thousand..." until she instructed me to stop. I acknowledged that I understood and she instructed me to start. I lifted my foot and started counting off the seconds. No problem.
I was surprised she didn't stop me at 10-one thousand. I kept going. I was steady.
At about 21-one thousand, I realized I wasn't on a flat part of the sidewalk. This was a ramp which was constructed to help cars into a now-fenced off parking lot off of the street. I probably should have asked to relocate before we started these tests.
I think she stopped me at 25. Next I tried the other foot. No problem. That was it. I didn't slip with my balance or with my counting.
That was it for the physical challenges. I had assumed that my flawless execution of these tests would allow me to forego the breathalyzer test, but I was wrong. I had to blow the breathalyzer.
Tests she didn't conduct:
- Walking a straight line
- Reciting the alphabet backwards
- Touching my own nose with an outstretched arm
Her partner had prepared the test equipment, a small machine about the size of a walkie-talkie. It had a new plastic mouthpiece.
Once I realized I'd be blowing a test, I did the only preventative measure that I was aware of, taking several super-deep breaths, trying to expel any immobile air from my lungs which had risen to the level of alcohol in my blood. Deep breaths, like I was hyperventalating. At first I was doing it subtly, to not arouse her suspicions of my counter-measures, but she didn't react to it. She actually seemed concerned that I was freaking out.
"Don't worry, if you really only had one beer, you have nothing to worry about".
She gave me the instructions. "when I say go, take a deep breath and blow. Keep blowing until I say stop."
I complied. It wasn't blowing very long before she got a reading.
"See! You had nothing to worry about." She withdrew the breathalyzer, satisfied with my relative sobriety. "Usually we give the breathalyzer twice, but you aren't close to the limit."
She didn't tell me what my BAC was, and I didn't ask. She then asked me to go back and wait in my car. I considered reaching up to take a photo of their blue and red lights, but I resisted the temptation.
That was it. I passed the test. A few minutes later she came back to my window with a fix-it-ticket, compelling me to fix the taillight and get the violation checked by another police officer. I was on my way. The whole stop lasted about 20 minutes, and we got to Superman in plenty of time to snag a good seat.
It was an interesting experience, I kind of hated it, because I felt like if I slipped up, I would have been in serious trouble. Don't drink and drive. Even if your driving is indistinguishable from that of a sober person, you may be betrayed by a broken taillight.
Update! An officer from Ohio wrote to give me some more information.
I am an officer from Cleveland, Oh and I have a lot of OVI training. Here is some info for you. Your state laws and case law may differ.
We have the .08 BAC limit also here in ohio. Even if you test at or above the limit, if we can prove impairment, then we do not need you to test over. But
that would be a rare case where the subject is unreasonably impaired by the limited alcohol intake, possibly partnered with drug use. Drug impairment is
becoming an increased issue.
Now I know you are a smart guy and do your research so I apologize for anything that you already know.
A minor equipment infraction is a great way to perform a "positive citizen interaction". Thus meaning, if that is the only violation and the plates and driver's license is valid, and there are no other issues, you can tell the driver to get the light fixed without suffering any financial loss. The citizen is happy that they did not get a ticket or have to pay, and we get a chance to interact with a potential "bigger fish". Completely legal and people like it when they are told nicely to fix their car by the mean officer.
The eye test was the Horizontal Gaze Nystagmus (HGN) test. It is basically a reflex of the eye that can very reliably tell an officer with high percentages that the person is impaired. If you were closer to Ohio, I would gladly show you, but I am sure there are videos on the net that show the same. Your eyes give off an involuntary jerking when you are under the influence of alcohol and other drugs. You do not realize it, you think your eyes are pursuing smoothly, but the trained officer can detect and visibly see distinct incremental movements of the eyes. It is a pretty interesting technique and in my experience, it has been very reliable to prove and to disprove someone's lever of intoxication.
Asking questions helps cover defense issues and also can cover the problem of divided attention tests. Like if I were to ask you for your license and then ask you where you were coming from right after that. An intox person is likely to stop looking for their license and engage in the question. Also, you are asked to not to put your hands in your pockets and not to start until instructed to. Many people have a hard time with this if they are impaired.
A good OVI or DUI attorney can really cover the bases well. They can verify your certifications to perform the breath test, to administer the physical tests, and to administer the HGN test. There are Drug Recognition Experts (DRE) officers that are very talented in detecting specific types of drugs being used but that is another topic.
A good attorney can challenge your testing practices, your breathalyzer mandatory tests (which have to be done once every 192 hours), the testing fluids were certified, properly kept refrigerated, and within valid expiration dates.
The attorneys will make sure the officer knows what he is doing and that he did it with compliance of the state or federal standards. The new standards are getting away from the alphabet test and the "touch your nose" test, and the one leg stand test, which has a high rate of sober people failing it.
The HGN test, and the walk and turn test are becoming the current norm. You can do the alphabet test and the finger test to lead up to your standardized tests though.
A smart OVI/DUI officer looks at the big picture and many subtle clues to determine intoxication levels. There are plenty of officers out there who do not know their rear from a hole in the ground when detecting sobriety or intoxication. Some just assume a strong odor of alcohol is all they need. Shame on them. There are a lot of clues an intoxicated person can give that have to be realized by a good DUI/OVI officer.
After you took those tests and impairment wasn't near their thresholds, they should have ended the tests. The portable Breath Test devices have no legal standard here in Ohio and are not admissible in court. A well trained officer could easily deduce that you were telling the truth and that you were not intox or impaired. The breath test was possibly to confirm what they already knew, but here in Ohio, it could not be used to prove impairment which would show cause for a full blown Breathalyzer test. The test results would probably be thrown out here, but even without that test, if the officer has video/audio and can prove impairment, they could win the case.
I am not sure that taking your deep breathes helped you or not. I do know that when we administer the breath test, we have you take a deep breath so that it can test your alveolar air which is your deep lung air. Your test will generally increase as the breath gets deeper. If you stop giving a breath sample, the machine knows it and allows you to continue with a deep breath. Otherwise, the test is considered incomplete.
One mistake or indicator does not prove impairment. A lot of people are very nervous or have conditions that would explain certain limitations or behaviors. Again, a good officer isn't looking for one clue. You don't fail the tests per se, you indicate a likelihood of intoxication or impairment. Never say two beers. That is what every one says. And don't say beer when it was a 5th of whiskey.
I tend to look for the obvious cases. I like to believe that most people can have a couple and be ok and shouldn't be worried about getting into trouble. If I think that they are borderline, and they have everything else running in the right, a valid license, decent record, insurance, etc, I will call someone to pick them up.
But if you are obviously impaired, you have to learn a lesson.
Everyone knows someone that has been affected by drinking and driving. No one ever thinks that they would hurt anyone, but it happens all the time.
Your advice to not drink and drive is a good one. Not because I am a holier than thou, but that I lost the girl I was going to marry to a drunk driver. Head on crash, wrong way. She was wrong too.
She was intox when she died. She possibly denied herself the opportunity to respond and save her and her friend's life. Her response was probably a factor in the crash too. No one wins and when you get caught or alter someone's life, your life is never the same.
This is not a boo hoo email. Things happen in life for a reason whether you understand or not. I would have determined that you weren't impaired pretty quickly. A novice or over aggressive officer could ruin your day when they shouldn't have.
Hope this wasn't too boring and at least a little bit helpful.