Sobriety Tests for DUIs

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DUI Tests in Alabama

In the state of Alabama, Code section 32-5A-191 defines a DUI to include not just driving with a blood alcohol content above .08 but also driving while impaired or intoxicated by any substance that prevents you from being a safe driver. To determine whether you are driving under the influence and breaking the law, this means that there must be tests in place to assess not only your blood alcohol content (BAC) but also to test your faculties and determine if you are impaired.

Unfortunately, not all DUI testing is accurate and sometimes you may be charged with a DUI based on faulty testing or incorrect accounts of the situation given by law enforcement. Challenging DUI tests is one of the main ways that the experienced Birmingham DUI lawyers at Alabama Criminal Lawyers can defend clients against DUI charges and help them to avoid conviction. We have helped countless clients in Jefferson, Madison and Shelby Counties and throughout Alabama to walk away from a DUI with a clean record and we may be able to help you too.

Contact us today at (205) 981-2450 
for a free evaluation of your case to learn how we can help.

Field Sobriety Tests

A field sobriety test is a test conducted by law enforcement at the roadside to determine if you are impaired by alcohol. A breathalyzer test administered at your vehicle is one example of a field sobriety test, but there are also many other types of tests that law enforcement may use to determine if your faculties are impaired.

Field sobriety tests are often very subjective and unreliable, making them problematic evidence for a prosecuting attorney in a DUI case. If you have been accused of driving under the influence, you may be able to successfully challenge the accuracy of a field sobriety test in order to avoid conviction.

A Birmingham DUI attorney can assist you in determining whether a field sobriety test can be challenged and in building a strong case to raise questions about the test and avoid a conviction for DUI. Our attorneys have helped countless clients in Jefferson, Madison and Shelby Counties and throughout Alabama to avoid a DUI conviction by introducing doubt about DUI testing.

To learn more about how we can help, contact our Birmingham Alabama DUI lawyers today at (866) 831-5292 to schedule a free consultation.

Alabama DUI Laws & Sobriety Testing

Under Alabama Code section 32-5A-191, you can be charged with a DUI if your blood alcohol content is above .08 but you can also be charged if you are otherwise intoxicated or impaired by any alcohol, drugs or other mind-altering substances that affect your faculties and make it impossible for you to drive safely.

A number of field sobriety tests can be administered to assess whether you are over-the-limit or whether you are impaired. These include:

  • A breath test used to assess the percentage of blood alcohol content in your body, by weight. This is sometimes referred to as a PAS or preliminary alcohol screening test and is typically administered after other field sobriety tests.
  • An alphabet test, wherein you are required to recite the alphabet either forwards or backward.
  • A “Rhomberg test” where you are asked to put your feet together and close your eyes. If you begin to sway, this can be a sign of intoxication.
  • Being asked to stand on one leg.
  • Being asked to follow an object, such as a pen, with only the eyes while holding your head still.
  • Being asked to walk in a straight line from heel to toe and then turn.
  • A test to determine if you can touch your nose.
  • A divided attention test, where you are asked questions while doing other things such as finding your driver’s license or registration in your vehicle.
  • A test where you are asked to count fingers.
  • A test where you are asked to count and increase the speed at which you clap your hands.

These and other types of physical and mental challenges may be posed to you by law enforcement as a method of attempting to find out if you are intoxicated.

Unfortunately, many people have difficulty with these tests even when they are not intoxicated. This is especially true of people who might perform badly on the field sobriety tests due to a medical condition affecting balance or due to test anxiety. Age, gender, size, and environment can all have an impact on your ability to pass these tests as well.

Field sobriety tests are also problematic because there is no objective standard used to determine whether a person has correctly passed the test or not. The subjective opinion of law enforcement is used to determine whether a person failed the test, and this opinion may not be accurate, especially if the officer at the scene has not been thoroughly trained in field sobriety testing.

Fortunately, you are not required to submit to field sobriety tests, in part because there are so many questions as to their accuracy. While driving on the streets of Alabama is tantamount to having given implied consent to a BAC test, you may decline field sobriety tests- including a breath test. You will, however, have to submit to a chemical test such as a blood test or urine test after a lawful DUI arrest or you could lose your license for at least 90 days.

If you are asked to take a field sobriety test, it is advisable to decline so there will be less evidence to use against you in your DUI case. If you have already taken a field sobriety test and the evidence is being used against you, an experienced Birmingham Alabama DUI lawyer can help you to challenge the test and introduce doubt as to the accuracy of the evidence.

Urine Tests

When you are arrested for DUI in the state of Alabama, you are required to submit to a chemical test or you will lose your driver’s license for at least 90 days (for a first refusal). By driving on the streets of Alabama, you give implied consent to being tested for alcohol and failure to submit to a test leads to an automatic administrative license suspension. One such test that may be performed is a urine test.

In the state of Alabama, DUI charges can be brought under code section 32-5A-191 for driving with a BAC of .08 or higher, but also for driving while impaired by any combination of alcohol, drugs or mind-altering substances that render you unable to drive safely. This means that you can be arrested not just for drinking and driving, but also for driving while you are high or stoned.

Urine testing is a common method used to determine if you are impaired or on drugs while you are driving a vehicle. While breath tests may be a simple method of detecting blood alcohol content that is used in the field when DUI is suspected, only blood and urine testing can be used to assess whether you are on drugs at the time of your arrest.

Sometimes, however, there are mistakes made in the collection and testing of urine that can result in inaccurate results or that can raise questions as to whether your urine test accurately revealed your status as intoxicated or impaired. At the Eversole Law Office, we can help to identify when these mistakes occurred and we can use these mistakes to introduce doubt about the accuracy of the urine testing.

Because a prosecutor has a burden of demonstrating your guilt in a DUI case beyond a reasonable doubt, if you are able to successfully challenge the urine test, you may be able to get the charges against you dropped or to win a not-guilty verdict in a DUI case.

Some of the mistakes that the Eversole Law Office can help to identify and use to exclude a urine test or introduce doubts as to its veracity include:

  • The collection of the urine by an unauthorized person or someone not properly trained in evidence handling.
  • A lack of witnesses to the collection of the urine.
  • The contamination of the urine sample by putting it into an unclean container or by failing to securely and appropriately cap and seal the sample.
  • Incomplete or inaccurate labeling of the container.
    Improper storage of the urine sample such as failure to keep it refrigerated.
  • Incorrect or incomplete analysis procedures of the urine sample.
  • Lack of confirmatory testing when drugs were present.
  • Incorrect documentation of the chain of custody of the urine evidence.
  • Lack of proper training or compliance with procedural guidelines at the lab where the urine test was performed.

Urine tests may also be inaccurate in regards to showing the concentration of drugs or alcohol in the blood and sometimes drugs may be present in the urine even though you were not actually on drugs or intoxicated at the time when driving.

Portable Alcosensor Tests

A portable alcosensor test is a preliminary alcohol screening (PAS) that is often performed before you are formally arrested for DUI. A PAS provides evidence of your blood alcohol content that can be used against you in court and/or confirmed after your arrest by a blood or urine test.

Although a portable alcosensor test is used in the vast majority of DUI cases, there are problems with this test and the test may not be an accurate measure of whether you are actually driving while intoxicated or not

A portable alcosensor test is a fancy name for a portable device that is intended to sense or determine the amount of alcohol in your blood stream. Most people are familiar with the most common type of portable alcosensor test: the breathalyzer or breath test.

Breath tests have long been used as evidence in DUI cases, despite warnings as to the accuracy of breath tests going back as far as 1985 when a University of Washington Professor of Physiology, Medicine and Biophysics cautioned in an article Physiological Errors Associated with Alcohol Breath Testing against the use of breath tests in a legal setting because so many physiological variables could affect them.

Today, however, the breathalyzer is not the only test that can be performed in order to sense or detect alcohol using a breath test. New technologies that are used in order to assess your alcohol level in the field include devices that make use of technologies such as infrared spectroscopy technology.

In your DUI case, this means any number of different devices and technologies may have been used in the field in order to assess the amount of alcohol in your blood stream. These devices may include the BAC Datamaster; an Intoxilyzer; a Draeger or an Intoximeter.

No matter which device is used, however, there are typically ways to challenge whether the device actually provided an accurate measure of your intoxicated. Each different test is challenged in a different way, but it is important to remember that your breathing pattern; medical conditions such as diabetes; use of common household products such as mouthwash; your metabolism and other variables can all affect results.

Furthermore, the accuracy of an alcosensor test may also be impaired if the machine is not calibrated properly according to manufacturer instructions or if the law enforcement officer administering the test has not been fully and completely trained.

One Leg Stand Test

When you are facing DUI charges, prosecutors will typically try to collect as much evidence as possible since they have the burden of proving your guilt beyond a reasonable doubt. One piece of evidence that they may use against you is your performance on field sobriety tests including the DUI one-leg stand test.

When you are asked to do the one-leg stand test, law enforcement will request that you balance on one foot. You typically will need to maintain your balance- without sticking your arms out or hopping up and down or swaying-for 30 seconds in order to successfully pass the test.

Unfortunately, many people who are sober are unable to successfully complete this test. It is natural to extend your arms up and out to your sides in order to get better balance, and in fact, for most people, this is a reflex when standing on one foot. This natural reflex is one of the signs of intoxication.

People who are clumsy, nervous about law enforcement watching them, or who otherwise suffer from test anxiety may also be unable to complete the one-leg stand test. Those with balance problems caused by medical conditions will also find this test impossible.

Because there are so many reasons you might fail a one-leg stand test, it is advisable to decline to take this and other field sobriety tests if law enforcement requests that you do so. Although implied consent rules mean that failure to submit to a chemical test can result in the suspension of your driver’s license, there is no requirement that you submit to a one-leg stand test.

If you politely and respectfully decline to take this test, this will be one less piece of evidence that law enforcement could potentially use against you to obtain a conviction for DUI.

If you have taken a one-leg stand test already, there are plenty of questions you can raise about this test and plenty of ways to challenge it. You do not need to prove that the test was faulty either. Because the prosecutor has the burden of proving guilt in a DUI case, you can discredit the evidence provided by the test simply by introducing doubt as to its accuracy.

Walk and Turn Test

The DUI walk and turn test is one of several field sobriety tests that you may be asked to submit to when law enforcement suspects that you are intoxicated. The walk and turn test is exactly what it sounds like: you will be asked to walk and turn for police officers. However, it is a bit more complicated than it sounds, since you will typically be made to walk heel-to-toe in a street line, then turn, then walk back again going heel-to-toe.

Many people who are not intoxicated can have difficulties with this type of test. A number of medical problems that affect balance or coordination can make this test impossible. Some people are also simply uncoordinated and have difficulty walking in this manner, especially when they might be feeling test anxiety as they stand at the side of the road under the strict scrutiny of police officers.

All of this is made worse by the fact that there really is no objective measure of how well you have to perform on the walk-and-turn test in order to “pass” and not have the test used as evidence against you. Whether you are able to walk in a straight enough line and successfully complete the test will be up to the discretion of the officer.

Walk and turn tests can be used against you in a DUI case not only in the form of the officer testifying about what he has seen but also because a video is often taken from the dashboard cameras of officers at the scene. This video may be introduced as evidence in court and, if you appear to fail the test, the jury determining your guilt might get the wrong idea and not understand all of the circumstances surrounding why you failed.

As such, the best option you have is to refuse to take the DUI walk and turn test or other field sobriety tests. Although you give implied consent to chemical testing when suspected of DUI if you drive in Alabama, you do not have to agree to sobriety tests and can instead take a blood or urine test instead. Refusal to submit to a walk and turn test will give law enforcement less evidence to use against you in a DUI case.

Field Sobriety Tests vs. Breathalyzers

Police agencies have numerous tools at their disposal when it comes to crime-fighting, with technology expanding at a seemingly exponential rate. And yet, many continue to rely heavily on decades-old methods in the course of their drunk-driving arrests. Primarily, these include the field sobriety test and the breathalyzer.

The recent U.S. Supreme Court decision in Missouri v. McNeely held that in most cases, officers have to first obtain a warrant from a judge in order to legally pull a sample. This means many more officers will simply fall back on the older methods.

They don’t need a warrant, but your consent is necessary to perform either one. There is one major difference, though: There is no penalty for refusing to engage in field sobriety testing. However, Section 35-5-192(a) of the Alabama Code explains that motorists in this state are offering complied consent to chemical testing.

So if you refuse a breathalyzer, you are violating this law, which subjects you to automatic revocation of your driver’s license for up to 90 days. You can always request a hearing to have that decision reviewed.

Motorists have a good reason for refusing to submit to either field sobriety tests or breathalyzers. If you can honestly say you aren’t intoxicated, it’s probably best to submit. However, if you believe there is any chance you won’t pass either test, it’s often better to take a pass.

The latter means you will likely be arrested for DUI, but you won’t have provided the police with additional information to use against you in court.

A field sobriety test is one in which an officer conducts a series of tests that are supposed to determine whether you are intoxicated. These might include directives to walk heel-to-heel in a straight line, follow the movement of a handheld pen using only your eyes or reciting portions of the alphabet.

We believe these tests are inappropriate for a number of reasons, including the fact that failure could be an indicator of some other medical condition. Also, whether you “passed’ the test relies heavily on the officer’s perception of your performance. When results are so highly subjective, there is always the potential for testing flaws and biases.

Breathalyzers are certainly not without their flaws either. In fact, evidence of breathalyzer errors – almost always with the results skewed higher than what they should be – have resulted in the thousands of cases being thrown into limbo nationwide.

Just look at the District of Columbia, for example. An outside consultant hired in early 2010 found that the breathalyzer machines routinely used by police there were inflating results by as much as 20 percent. Some 400 people were convicted based on inaccurate results. Police were forced to stop using the devices for about three years, and dozens successfully sued the district.

Sobriety Checkpoints in Alabama

Alabama is one of 38 states, plus the District of Columbia, to permit sobriety checkpoints and unlike some other places, state law doesn’t restrict how many can be held monthly or annually.

However, our Birmingham DUI defense attorneys know that law enforcement agencies are quite restricted in their actions during these operations. That doesn’t mean, of course, that each officer or agency always adheres perfectly to these stringent requirements – which means you may have a better chance of having your DUI case dismissed than you think.

While each case is going to be different, some of the most common defenses in these scenarios include:

  • The supervising officer or officers were not present or in charge of checkpoint operations;
  • There was no adequate warning of an upcoming checkpoint;
  • There were no available routes for a driver to turn away from the checkpoint if he or she chose;
  • They can’t be set up at random, without any other DUI deterrent efforts in place with total disregard for the need for such an operation at that location;
  • Officials didn’t properly notify the public in advance of the checkpoint.
  • Authorities did not consistently maintain a proper, randomized system to stop vehicles.

It’s worth noting that if you choose to turn around and drive away from a sobriety checkpoint, you can’t be legally stopped for doing so. Officers can only stop you if you commit a traffic violation or display some obvious sign of intoxication.

Even though the primary goal of a DUI checkpoint is to remove intoxicated drivers from the road, police are looking for evidence of any criminal activity when you are stopped.

They are going to look to see if you seem nervous. Do you fumble with your license and vehicle registration? Do you smell like alcohol? Are there any alcoholic beverages, drugs or drug paraphernalia visible in the vehicle? Is your speech slurred? Eyes watery? Is there any other sign of intoxication present?

They will try to get you to answer as many questions as possible. Bear in mind that you are not obligated to answer any questions at all.

If an officer singles you out for a more thorough questioning or search, he or she has to have some probable cause to do so.

Any chemical testing that takes place on-site has to be fast and efficient. Per implied consent laws, if you do not submit to a breathalyzer test at a checkpoint, you could automatically lose your license. However, you can decline field sobriety tests without penalty. These tests are often highly subjective and usually only end up being used against you.

Blood testing and vehicle searches cannot be conducted without a warrant. Be warned that a magistrate may be on-site to sign those warrants if an officer really wants to obtain one quickly, and you could be forced to submit. It won’t necessarily stop you from being arrested, but your clear refusal will be an important part of having the evidence later suppressed if it turns out officers didn’t follow the law.

As with any encounter with police, do your best to maintain your composure and remain polite, no matter how the officer treats you. This will almost always work in your favor.

And finally, understand that no matter what, you don’t have to answer any questions until you’ve spoken with an attorney.

Contact Alabama Criminal Lawyers

Contact Alabama Criminal Lawyers today at (205) 981-2450 for a free consultation.