Can I Challenge the Results of a Field Sobriety Test If I Have Been Charged with DUI?

During a DUI arrest, law enforcement may rely on field sobriety tests to determine whether a person has been driving under the influence of drugs or alcohol. Because the results of field sobriety tests are often based on the arresting officer’s subjective observations, an experienced DUI defense attorney can help to challenge those results.

How are Field Sobriety Tests Conducted?

Generally, there are three common standardized field sobriety tests — one leg stand, walk and turn, and horizontal gaze nystagmus.

In the one leg stand test, the police will ask the driver to raise one leg and remain in that position for 30 seconds. If the driver cannot maintain his or her balance, the arresting officer may conclude the driver was imparied. The walk and turn test also evaluates the driver’s balancing by having him or her walk heel to toe along a straight line, turn and walk back. Finally, the horizontal gaze nystagmus (HGN) test involves the officer observing how the driver’s eyes to react to external stimuli (e.g. following a pen, flashlight).

It is worth noting that drivers have the right to refuse to participate in a field sobriety test, however, they can still be arrested based on other observations, such as the odor of alcohol on the driver or an open container in plain sight in the vehicle. In any event, it may be in the driver’s best interest to decline to perform these tests.

How can I challenge the results of a field sobriety test?

The fact that you have been charged with DUI based on the results of a field sobriety test does not mean that you will be convicted. These tests are usually administered under circumstances that increase the likelihood you will fail. Moreover, field sobriety tests are subject to human  error, which means an adept DUI attorney can challenge them in a number of ways.

First, the training and experience of the arresting officer can be questioned because the results may be flawed if the test was not properly administered. In addition, field sobriety test results can be skewed if you have a physical condition that affects your mobility, equilibrium and balance, such as a disability, an ear infection or vision problems.

Finally, the arresting officer is required to provide you with proper instructions on performing the test. The police must also consider the circumstances under which the test is being administered such as the lighting, terrain, and weather conditions. A field sobriety test can be challenged if the police fail to provide proper instructions or the road is uneven or not well lit.

The Takeaway

A DUI charge is a serious matter that can jeopardize your driving privileges and your freedom.

The best decision you can make if you have been charged with DUI based on the results of a field sobriety test is to consult an experienced DUI attorney.

Posted in DUI

New DUI Developments

On January 1, 2015, a new Rhode Island law made it possible for drivers convicted of drunk driving to apply for a conditional hardship license during the period of license suspension. A conditional hardship license allows a driver to drive to and from work during a specified 12-hour period and also can be granted for other non-employment related hardships. However, a conditional hardship license will only be granted in conjunction with an ignition interlock device.

A conditional hardship license will only be granted after a hearing and the requirements for the hardship license as well as the installation of an ignition interlock device are complicated. In fact, to date, not even all judges are in agreement about how the program should be implemented. If you are charged with a DUI or Refusal to take a chemical test, you should need to consult an attorney who is following the developments at the Rhode Island Traffic Tribunal and Rhode Island District Courts and will fight to protect your rights. Call me at 453-5633 for a free consultation.

This article was in the Providence Journal on May 17, 2015. It details a significant legal debate happening now regarding how the police and prosecutors should be adapting to the new conditional hardship licenses and what it could mean for anyone arrested for a DUI since January 1, 2015.

Paperwork compromises DUI cases

By Katie Mulvaney Journal Staff Writer

PROVIDENCE — Defense lawyers are challenging chemical test results in dozens of suspected drunken-driving cases, arguing their clients were not accurately informed about the penalties they could face if they refused to take the test.

Lawyers are seizing upon the “rights for use at station” forms used by police throughout the state to inform people accused of driving under the influence of their rights. The forms fail to reflect changes in Rhode Island’s driving-under-the-influence laws that took effect Jan. 1, including that drivers could request a conditional “hardship” license allowing them to drive to work while their license is suspended and that they might be required to use an ignition interlock device, they say.

They are asking that blood-alcohol test results be suppressed because their clients could not knowingly consent due to the information missing from the forms. In some cases, defense lawyers say those arguments has given them leverage in getting driving-under-the-influence charges reduced to reckless driving with a filing, meaning the case could be expunged and destroyed in a year as long as the person stays out of trouble.

Lawyer Matthew T. Marin filed some of the first motions to suppress test results relating to the forms, which he describes as “woefully inadequate.” “In my opinion, all those results should be thrown out,” Marin said of any tests administered after the changes took effect Jan. 1. He estimated he has filed a dozen suppression motions related to the form since March. A. Joshua Macktaz, who shares office space with Marin, put the number of times he’s challenged the form at about 30.

“The biggest problem is that the form is wrong,” Macktaz said.

District Court Judge William C. Clifton last Thursday agreed and suppressed the breath-test results in the case of Mark Zimmerman. Pawtucket police accused Zimmerman, 36, of driving under the influence at 1:37 a.m. on Feb. 1. Court records indicate Zimmerman’s blood-alcohol content was .15.

“I feel as though it’s misleading not to have that provision in the rights for use at the station [form], and I also feel as though that would influence the decision on the part of someone subjecting themselves to the breathalyzer,” Clifton said according to a recording of the proceedings.

Marin, who represented Zimmerman, declined to comment on the case. Pawtucket City Solicitor Frank J. Milos Jr., who argued on behalf of the city, did not return two phone calls.

The attorney general’s office stands by the form. “It is the state’s argument that the form is sufficient as written, and we will await, with anticipation, rulings on the matter,” Amy Kempe, spokeswoman for Attorney General Peter F. Kilmartin’s office, said in an email. Kempe said the office has not reviewed Clifton’s ruling, but that it would not be binding on other judges. District Court Judges Christine S. Jabour and Pamela Woodcock-Pfeiffer, too, are expected to rule soon on the issue.

State lawmakers last year approved significant changes to driving-under-the- influence laws. As of Jan. 1, a judge or magistrate may grant a person convicted of drunken driving or refusing a chemical test for the first time a conditional “hardship” license to drive to and from work during the license suspension. That license would be valid for 12 hours a day and granted only in conjunction with an ignition interlock device, essentially a test that prevents a driver from starting a car if alcohol is detected on the breath.

Also, lawmakers gave judges and magistrates the flexibility to impose sentences that combine license suspensions with requiring an ignition interlock device. This means a person convicted of driving under the influence could face a license suspension of as few as 30 days and be required to use an ignition interlock device for three months to a year. A person convicted of refusal would face a license suspension of a minimum of 30 days along with the imposition of an ignition interlock system for six months to two years.

Prior to the changes, refusing a chemical test carried a minimum suspension of six months if found guilty. Judges and magistrates, too, didn’t have the authority to sentence anyone to less than a six-month license suspension. The attorney general’s office distributed revised “rights of use” forms to police departments throughout the state in January that arresting officers read to people accused of driving under the influence. Written by Assistant Attorneys General Jay Sullivan and Stephen Regine, the form informs suspects of their right to remain silent and asks that they submit to a chemical test. It goes on to warn that if they are convicted of refusal, for the first time, “mandatory” sanctions would be imposed, including a license suspension of six months to a year. “The sentencing court may also prohibit you from operating a motor vehicle that is not equipped with an ignition interlock device for 6 months to 2 years,” the form continues. It also informs alleged re-offenders about the consequences they would face.

What troubles Marin, Macktaz and others in the defense community is what’s missing from the form. The form doesn’t say that a person refusing the test could face a 30-day license suspension combined with the imposition of an interlock device, not a mandatory six-month suspension, said Andrew Horwitz, Roger Williams University Law School professor. It doesn’t mention that a person convicted of driving under the influence can request a hardship license.

The form, as written, leads a person concerned about not being able to drive to work for a long period to believe the only option is to submit to a test, Horwitz said. “They haven’t captured the essence of the legislation … It really doesn’t give the most important information.” Kempe said state prosecutors have not pled down cases in which the rights form was challenged, but that she couldn’t speak to how city and town solicitors were handling such challenges. Several have sought guidance from the state, and the state has asked to be informed of any cases in which the rights form is being challenged, she said.

“It is not unusual that there are challenges to the rights form. The form has been changed four or five times in the past 20 years or so — every time there is change in the DWI laws,” Kempe said. “Each time the form has been changed, there have been challenges filed.

The state, in responding to motions to suppress, contends that the grant of more lenient sentences and the imposition of an interlock device for first-time offenders only come into play at the discretion of a judge. “Therefore, the possible grant of leniency is not required to be part of the penalties of which a motorist must be informed when asked to submit to a chemical test,” wrote Assistant Attorney General John E. Corrigan.

Charlestown Solicitor Robert E. Craven Sr. said he is following the state’s lead in approaching DUI cases and is not pleading down cases in response to challenges to the rights form. “They’re standing by it,” he said.

It’s a matter that should be left for the judiciary to decide, he said.

Posted in DUI