Most people are familiar with the concept of driving under the influence (DUI) checkpoints. This is just one method that law enforcement agencies employ to try to snag drivers who are under the influence of drugs or alcohol while operating an automobile. They do this by setting up a transitory blockade, often just by placing a cop car or two along a roadway, with the officers randomly stopping vehicles to question drivers, check drivers’ licenses, assess whether the driver seems inebriated, or to determine if they detect the smell of alcohol. Thousands of unfortunate drivers have spent the night in jail, and subsequently been convicted of DUI, through the use of these DUI road blocks. Many times, the driver may be completely sober and simply had a couple of beers with friends or a glass of wine or two with dinner. However, with Florida’s standard blood alcohol content (BAC) level of .08, it doesn’t take much for someone who has had a couple of drinks to be faced with a DUI charge. It is, therefore, imperative to remember a couple of things if you find yourself in this situation.
Always remain polite. If you become aggressive, not only will it make the cop edgy, but there is a general perception that there is a link between aggression and drunkenness. You are already being looked at with suspicion so there is no need to exacerbate the issue. As a matter of fact, you may have noticed that the cop is watching you very closely, to the point of being a bit creepy. From the moment that the police officer suspects you may have been drinking, he is watching you for signs of inebriation.
The first of these assessments is called Horizontal Gaze Nystagmus. According to the National Highway Traffic Safety Administration, HGN is “an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object.” This is why officers often will ask you to follow a pen or some other object with your eyes as he slowly moves it back and forth. He or she is checking to see if your eyes can follow the object smoothly. There are other factors based upon science that are used such as amount of deviation and the angle within 45 degrees of center that the jerking begins. This is something that an officer can only guess at in the field without scientific testing equipment, yet it is still considered to be a valid assessment by law enforcement. In addition to alcohol use detection, this method is also used to try to determine whether someone has consumed any of a variety of prescription medications, as well.
Then, most assuredly, you will be asked to perform a field sobriety test. I highly recommend that you very politely decline. Claim illness or infirmity if you must, but it is NEVER in your best interests to comply with this request. This is because if you have ever tried to complete a FST, you know that it is virtually impossible. In addition to the HGN test, officers conduct two other near-impossible tests as part of the field sobriety test. The first of these is the walk-and-turn test. The suspected drunk driver is told to take a number of heel-to-toe steps while walking in a straight line. He must then turn and repeat the process in the direction that he came, in the same manner. The officer then looks for the following: the driver’s ability to follow instructions; the driver proceeding before instructions are fully given; the driver stopping in effort to regain his balance; an inability to walk heel-to-toe; needing to use arms to maintain balance; the driver being unable to make a smooth transition while turning; or the driver does not take the correct number of steps, as requested by the officer.
The second of these tests is referred to as the One-Leg Stand test. As you might expect, the driver is told to stand with one foot raised to approximately six inches from the ground while counting aloud. The officer allows this for 30 seconds while watching the driver so that he can look for swaying, use of arms for balance, hopping, or placing the foot down to keep from falling over. How many people do you know that can do this even with effort, much less with ease? Both of these tests are considered divided attention tests. The idea behind them is that someone who is impaired will have difficulty in following directions while performing a physical activity. I know a number of people who have difficulty doing two things at one time while perfectly sober, especially when you combine those efforts with the nervousness and anxiety that is bound to arise by from being questioned by the police. The failure to achieve any one of these actions could be based upon individual issues or a combination of factors. These include attention deficit disorder, lack of balance due to a physical condition, a simple lack of grace, and even being overweight can cause many of these things to be difficult or even impossible. Although law enforcement claims that they look for drivers to fail two or more of these actions, that can easily happen from something as seemingly insignificant as having an old basketball injury.
Sometimes during roadblocks, K-9 cops will be present, as well. The objective is that the K-9 ‘alerts,’ thereby indicating that the dog detects an illegal substance. Of course this results in the obligatory car search, as the State of Florida has determined that when a K-9 indicates to its handler that there is the presence of an illegal substance, this establishes probable cause to conduct the search. That’s right. Unlike with your home, this is all that Florida requires to allow a search of your vehicle.
I will never advocate drunk driving, however, the system is structured so that a single drink can end up costing you your driver’s license, your job, or just a whole lot of money. It is NOT illegal to drink and drive in Florida; it is illegal to be drunk and drive. Unfortunately, the system has been skewed by such arbitrary things as roadside sobriety tests, and most of the time, drivers who have had just one drink are treated by law enforcement as though anyone who drinks must surely be drunk. Consequently, consenting to a FST or a breathalyzer will almost always work against you. Instead of providing law enforcement with evidence to use against you, prepare yourself to spend a night in jail, as this will surely happen, and then give our office a call for a free consultation at 954-976-9888.
Jason Diamond, Esq. is the Founding Lawyer Partner of the Traffic Ticket Team. His Attorneys have over 50 years of combined experience and have handled over 1,000,000 Florida traffic tickets. As Traffic Ticket Lawyers we have given traffic ticket legal clinic seminars throughout Florida. To find Attorney locations, click HERE. Our traffic tickets are defended in Miami-Dade, Broward & Palm Beach counties and we also fight traffic tickets statewide.