As a criminal defense attorney here in State College, Pennsylvania, Julian Allatt is often asked by friends and clients what they should do if they are stopped on suspicion of DUI. Answering this question requires a basic understanding of the “anatomy” of a DUI stop — how it works, what the police officer is looking for and what your rights are at every stage in the encounter.
To answer these questions, you must understand some basic concepts from the law of criminal procedure and how they bear on the three essential components of a roadside DUI stop. The three components of a roadside DUI stop are:
This post will discuss the second of the three components. The others are discussed in separate posts. You can click the links above to view them.
As discussed on the initial roadside stop page, once police have pulled a motorist over roadside, their job is twofold: issue the ticket for the motor vehicle infraction(s) that formed the basis for the initial stop and investigate whether the person is driving under the influence:
If the police officer asks a motorist to exit the vehicle to perform field sobriety tests, the officer must already have formed a reasonable suspicion that the motorist is driving under the influence of alcohol or a controlled substance based on observations of both the motorist’s driving and the driver while seated in the vehicle. This reasonable suspicion provides the legal justification for extending the length of the stop and further detaining the driver to conduct an investigation to confirm or dispel the officer’s suspicions that the motorist is sufficiently intoxicated to impair his or her ability to safely operate a motor vehicle.
Remember: The sole purpose of roadside testing is to assist the officer in determining whether there is probable cause to arrest the driver on suspicion of DUI.
Roadside testing comes in two general forms:
Once the officer has requested that the driver exit the vehicle, the officer will request that the driver perform a battery of tests generally referred to as field sobriety tests (FSTs). Unlike some states, Pennsylvania law does not require particular FSTs.
The tests employed by law enforcement in Pennsylvania include the alphabet test (recite the alphabet from A to Z or from a certain letter to a certain letter); the finger-to-nose test (stand erect with feet together, tilt head back as far as possible and then touch nose with both left and right index fingers); the coin pick-up test (the officer places three coins or paper clips around the motorist, who is directed to squat, rest an elbow on his or her knee and pick up each coin/paper clip in a certain order and place them in the opposite hand).
Most typically, however, the following three tests are employed. These are the only tests that qualify for standardization in Pennsylvania:
All field sobriety tests consist of two distinct phases: the instructional phase and the performance phase. The police will introduce each test to you and explain in exacting detail how it is to be performed. It is essential that the motorist comply exactly with these instructions.
Assume a heel-to-toe position on the line (usually a line on the road) with your arms at your sides [motorist is then required to actually assume this position for the remainder of the instructional phase]. When I tell you to, make nine heel-to-toe steps on the line in front of you, turn around and return in nine heel-to-toe steps. Watch your feet at all times, making sure that you walk in a straight line and that every step is heel-to-toe (officer should demonstrate). The motorist is then instructed to begin.
In scoring the walk-and-turn test, the officer looks for the following eight clues: 1) Cannot balance during instructions; 2) Starts before instructed to start; 3) Stops while walking; 4) Misses heel to toe; 5) Steps off line; 6) Uses arms to balance; 7) Makes an improper turn; and 8) Takes more or less than nine steps. According to the 1992 manual on standard field sobriety testing produced by the National Highway Traffic Safety Administration, unsatisfactory performance as to two or more of the previous clues indicates a 0.10 percent BAC or greater 68 percent of the time.
Please stand with your heels together and your arms at your sides (officer demonstrates and does not resume instructions until the driver is in the correct position). When I tell you to, I want you to raise one leg about 6 inches off the ground and hold that position while you count rapidly from 1001 to 1030 (officer demonstrates). The motorist is then instructed to begin by raising either the right or left foot.
In scoring performance of the one-leg-stand test, the officer looks for the following four clues: 1) Swaying; ) Using arms to balance; 3) Hopping; and 4) Putting the foot down before the count of 30. According to the 1992 manual on standard field sobriety testing produced by the National Highway Traffic Safety Administration, unsatisfactory performance as to two or more of the previous clues indicates a 0.10 percent BAC or greater 65 percent of the time.
In the horizontal gaze nystagmus test or HGN, the officer asks the motorist to keep his or her head still and follow an object such as a pen with only the eyes. The officers move the pen back and forth in front of the person and look for “nystagmus,” which is involuntary movement of the eye. According to some studies, early onset of nystagmus can be an indicator of alcohol intoxication.
The PBT is exactly what it sounds like — portable Breathalyzer units carried by officers that are used to obtain a rough estimate of the driver’s blood alcohol in the field. We say rough estimate because these PBT devices are not subject to the same exacting calibration requirements as the Breathalyzer machines used by some counties to conduct formal post-arrest testing. Unlike the PBT, the chemical breath tests used for official testing purposes are performed on calibrated devices that are tested for accuracy and approved by the Department of Health using approved procedures.
The results of the PBT are not admissible in court because the device is not tested and calibrated. Accordingly, the only purpose it serves is to give the police a basis to arrest you on suspicion of DUI.
The purpose of roadside testing is to assist the officer in determining whether there is probable cause to arrest the driver for DUI. We repeat: assist the officer.
You do not have a right to refuse roadside testing in Pennsylvania, but you may refuse testing. What does that mean? If you had a right to refuse testing, the fact that you refused testing could not be admitted by the prosecution in court. For instance, you have a right to refuse an officer’s request to search your home without a warrant.
Because it is your right to refuse a warrantless search, at trial, the commonwealth would not be able to tell the jury that you exercised this right and told the officer to get a warrant because it could give rise to negative inferences such as “he was trying to hide something.” If you refuse roadside testing in a DUI case, because you do not have a right to refuse roadside tests, the commonwealth can introduce your refusal into evidence. The jury will be instructed that no presumptions are to arise from your refusal, but a judge or jury could very well assume you were hiding something.
The practical advice we offer people is generally the following: Only you know whether you will be able to perform the FSTs. If you think you can do the one leg stand and the walk and turn, do them (practice it sometime when you’ve been drinking). Be sure to follow all instructions and DO NOT START UNTIL YOU HAVE BEEN INSTRUCTED TO START.
Politely ask the officer if there is a dash cam on the cruiser. If there is, politely ask the officer to activate it and ensure that you are performing the tests on camera so that an accurate record of your performance will exist.
DO NOT perform the horizontal gaze nystagmus test. It is meaningless. Pennsylvania courts have repeatedly held that the results of this test are inadmissible at trial. As a result, the only purpose it serves is to give police a reason to arrest you. Unlike the one-leg-stand and the walk-and-turn, the court will not be able to view your performance of that test on a dash cam- the wide-angle view from a dash cam will not pick up whether your eyeballs were shaking. Accordingly, you will have no extrinsic evidence to confront the officer with in a preliminary hearing or motion to suppress to show that you did perform the test satisfactorily.
Refusing the PBT and FSTs does not constitute an “implied consent” violation, meaning that you do not receive an automatic one-year driver’s license suspension under Pennsylvania law for refusing to perform roadside tests.
Remember: During the roadside testing phase, you are in control. You cannot be compelled to perform any of these tests. If you have been drinking, there is no point in taking the PBT. Any positive results on that device will immediately give the officer a reason to arrest you. Perform only the FSTs that you are comfortable performing. Again, all you are doing is giving the officer evidence that can be used against you. Exercise your best judgment in deciding what evidence you are willing to provide.
Ultimately, if the officer forms probable cause to believe that you were driving under the influence of alcohol or a controlled substance, you will be arrested and transported to the hospital for a blood test. You can read about your rights at the post-arrest phase here.
In DUI cases, State College criminal defense attorney Julian Allatt of Rehmeyer & Allatt will analyze the circumstances surrounding the roadside tests. An experienced DUI lawyer will use this information as the second line of attack in your DUI case. If the police officer did not have probable cause to arrest you on suspicion of DUI based on his or her observations and your performance on the PBT and FSTs, that alone can be the basis for dismissal of your case.