Richard Nedlin: Guest opinion
The Aspen Times
Aspen, CO, Colorado
This month, we take a look at what happens after you are pulled over on suspicion of drunken driving, and what happens during those infamous standard field-sobriety tests, and whether you have to take them and what they really mean.
First, the officer will ask you out of your car to meet face to face in order to determine whether to place you under arrest.
As you exit your car, the officer is paying close attention to your body movements, balance and ability to walk, and depending upon the law enforcement agency, the patrol car may be equipped with an in-car video camera. Aspen police have them, but the Pitkin Sheriff’s Office does not.
At this point, it is the last chance the officer has to establish probable cause to make an arrest based on what he observes should you choose not to perform the standard field sobriety tests. Law enforcement will be looking for the odor of alcohol on your breath, especially if there were other people in your car, because it gives them the ability to confirm that the odor of an alcoholic beverage was in fact coming from you. Alcohol has no actual odor; it is, in fact, the congeners (flavorings) that create its smell and taste.
Next comes probably the most important question you will be asked, which is whether you will take the field sobriety test. The current law states that you must be told that these tests are voluntary and that you have a right to refuse. If you refuse the tests, then law enforcement must decide whether to place you under arrest or let you go based on the information and observations they have made up until that point.
Remember – it is not illegal to drink and drive in Colorado; therefore, case law has held that the odor of alcohol alone, with no other signs of intoxication, does not give law enforcement probable cause to make an arrest. As my years as a prosecutor, I never saw someone who chose to take the field sobriety test and be released after successfully completing it.
Let’s assume you have decided to take the field sobriety test, which comes in three parts: horizontal-gaze nystagmus, walk and turn and the one-legged stand.
The horizontal-gaze test, in simplest terms, is conducted by the officer placing a finger or pen in front of your face and directing you to follow it with your eyes only. The officer is looking for nystagmus, which is the involuntary jerking or movement of the eye. Alcohol intoxication can cause nystagmus, but so do more than 30 other factors, ranging from head trauma to sexually transmitted diseases.
The horizontal-gaze test is the one most relied upon by law enforcement. However, the test must be done in strict adherence to proper protocol; if not, a court may find that the test was conducted improperly and therefore unreliable, and the results may not be admissible.
Next are the “divided attention” tests. Both the walk-and-turn and one-legged-stand tests require a suspect to listen to and follow instructions while performing simple physical movements. Studies have shown that impaired people have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises.
In the walk-and-turn, you would be directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, you must turn on one foot and return in the same manner in the opposite direction. While you are completing this test, the officer will be observing for eight indicators of impairment.
During the one-leg-stand test, you are instructed to stand with one foot approximately 6 inches off the ground and to count aloud by thousands (one-thousand-one, one-thousand-two, etc.) until told to put the foot down. You are timed for 30 seconds. In this test, the officer looks for four indicators of impairment.
The last test, which may be offered, is a portable breath test. This is a handheld device that you blow into that gives a digital readout of your breath-alcohol content. Once again, the officer must inform you that it is voluntary and you have the right to refuse.
These portable breath tests have been highly susceptible to incorrect readings and therefore not admissible at a subsequent trial. If your breath-alcohol content is a .05 or greater, that alone will give the officer probable cause to place you under arrest.
Once you hear the words “please turn around,” be prepared for the feeling of cold steel around your wrists and the words “you are being paced under arrest for driving under the influence.”
Next month, I will discuss what happens after the arrest such as express consent, the Intoxilyzer and blood tests and the ride to jail.
Richard Nedlin is a former prosecutor who currently practices defense law in Aspen. His column runs monthly in The Aspen Times.