Drivers under investigation for DUI / DWI typically take field sobriety tests before being arrested. Although many drivers hope they will avoid arrest by “passing” the tests, field sobriety tests exist only to justify an arrest and gather evidence for a court case.

There are two kinds of field sobriety tests: Standardized and Non-standardized. The Horizontal Gaze Nystagmus test is one of three field sobriety tests standardized and recognized by the National Highway Traffic Safety Administration (NHTSA). A skilled DUI / DWI attorney from The Kavinoky Law Firm can successfully challenge the results of a Horizontal Gaze Nystagmus test or other field sobriety tests.

Horizontal gaze nystagmus is an involuntary jerking of the eyes as they move from side to side. The Horizontal Gaze Nystagmus Test is based on the theory that the greater the driver’s blood alcohol content (BAC), the sooner the eyes will begin jerking as they move from side to side.

The officer instructs the driver to follow a small object such as the tip of a pen using only the eyes. Police watch for uneven eye movement or sustained jerking when the eye reaches the furthest point. The officer also will make note if the eye begins jerking before it reaches a 45-degree angle.

Each of these three occurrences counts as a “clue” when observed in each eye. If the officer notes at least four of the six signs, he or she will conclude that there is a 77 percent chance that the driver’s BAC is greater than .10 percent, and the individual will be placed under arrest for drunk driving.

Although it is standardized by the NHTSA, the Horizontal Gaze Nystagmus Test is far from foolproof. Nystagmus, or involuntary jerking of the eye, occurs in every individual, regardless of whether he or she has been drinking. Alcohol and drugs may intensify the nystagmus effect, but so can many other factors, including injury or illness.

When an individual drinks alcohol, mental impairment always occurs before physical impairment. Physical impairment can be masked by those with a high tolerance for alcohol, but mental impairment cannot be hidden. Therefore, the mere presence of physical impairment such as involuntary eye jerking doesn’t mean the driver was under the influence of alcohol.

Some officers don’t even administer the Horizontal Gaze Nystagmus Test properly, and their conclusions may be inadmissible in court. The driver’s head and body must be facing the object, so if the officer conducted the test through the driver’s-side window, the results may be inadmissible because the driver’s head was turned at a 45-degree angle.

Luckily for accused drunk drivers, field sobriety tests don’t always hold up in court. The officer’s conclusions can be successfully rebutted during cross-examination. An experienced California DUI / DWI attorney can effectively challenge the results of the Horizontal Gaze Nystagmus Test and create reasonable doubt concerning the driver’s guilt.

Evidential breath tests, also known as EBTs, are breath-testing instruments commonly used in California drunk driving investigations. Police and prosecutors rely heavily on EBT results, but they are far from foolproof. A skilled DUI / DWI defense attorney from The Kavinoky Law Firm will use a proven strategy to effectively challenge the results of EBTs.

To see how EBTs can be successfully challenged, it’s helpful to understand how alcohol enters a person’s breath. When an individual takes a drink, the alcohol isn’t digested like other substances – it gets absorbed by the stomach and small intestine. From this point, the alcohol enters the bloodstream.

The alcohol is then distributed by the blood to all tissues and organs that contain water. Veins carry the blood to and through the lungs, where the blood becomes oxygenated. The lungs are made up of air pockets, which are surrounded by blood-rich membranes, thus exposing the lung tissue to the consumed alcohol.

Third, the alcohol is eliminated by the body in the breath by evaporation. Evaporation occurs because the alcohol circulating in the blood comes in contact with the blood-rich membranes in the lung tissue and evaporates. During exhalation, the air is forced out of the lungs and emerges into the breath.

Infrared breath testing instruments identify ethyl alcohol molecules based on the way they absorb infrared light. No other compound absorbs radiation at the exact same wavelengths. In this sense, ethyl alcohol has a distinctive fingerprint.

EBTs measure the amount of alcohol in the breath by a partition ratio and converts it to an estimation of blood alcohol content. The problem with EBTs is that they generally contain instruments that detect the presence of mouth alcohol, commonly referred to as “slope detectors.” Mouth alcohol is the undetected, raw, unabsorbed alcohol in the mouth that falsely elevates the results of the breath test. The sources of mouth alcohol may include:

• A substance ingested prior to the breath test, like mouthwash, breath strips, cough drops or syrups, or asthma inhalers
• A substance regurgitated or burped from the stomach
• A case of gastroesophageal reflux, also known as GERD
• Dental work, such as dentures, braces or bridges which trap alcohol
• Mouth jewelry, such as tongue piercings, which trap alcohol
• Food in the teeth, especially bread and products containing yeast
• Tobacco products

The EBT slope detector reflects a real-time reading of the breath sample. Mouth alcohol creates a different pattern than a normal breath sample. If a subject has no mouth alcohol, the EBT device will read a continuous, though not linear, rise in breath alcohol until it reaches a plateau. If mouth alcohol is present, there may be a significant and sudden drop. A slope detector identifies and reports this drop as mouth alcohol, thus invalidating the result.

Another problem with EBTs is that police don’t always follow the proper waiting period before starting the test. Mouth alcohol evaporates after a 15-minute period, as long as no additional alcohol is introduced. Thus, police agencies are mandated to continuously observe the subject for 15 minutes before giving the breath test. This observation period cuts down on the possibility of a contaminated sample producing a falsely high BAC result.

Another issue with EBTs is California’s implied consent statute. According to the California Vehicle Code, a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense committed in violation of Section 23140 (DUI for those under 21 years of age) or 23152 (DUI) or 23153 (DUI with injury). That means that a driver is only required to consent to a chemical test if arrested. However, police often administer breath tests prior to making an arrest.

Generally, a person has the choice of either a blood or breath test. However, if drugs are suspected the person may have to submit to a blood or urine test. But if only one type of test is available, then the person must submit to the available test. For example, if the person in transported to the hospital, they may have to undergo the blood test because no breath testing machines are present at that location.

Further, according to the California Vehicle Code, the person must be told that failing to submit to a chemical test will result in a fine, suspension or revocation of driving privileges, and mandatory imprisonment.

Finally, if only a breath test is chosen, the driver must be given the choice of having a blood test done in order to retain a sample for independent testing later on, because the breath test does not retain a sample.

Because of the many variables present in EBTs and the regulations governing their use, it is possible to challenge test results in a drunk driving case. Any driver who took a breath test and is facing charges of drinking and driving should consult with a qualified California attorney who specializes in DUI / DWI defense.

A driver arrested for DUI / DWI in California is required by law to take a chemical test to determine blood alcohol content (BAC). Any driver who refuses to take a chemical test faces stiff consequences both at the DMV and at trial. In drunk driving trials, juries are given specific instructions on how to consider chemical test refusals.

Prosecutors typically use refusals as evidence of consciousness of guilt in driving under the influence cases. This type of tactic is necessary because the prosecutor doesn’t have any actual evidence showing the driver’s BAC. The typical argument is that the person arrested for DUI / DWI must have been drunk, or he or she would have agreed to a chemical test.

This prosecutorial strategy isn’t always effective. If jurors hear a valid reason for the refusal, such as injury, inability, or a desire to speak to a lawyer first, they often excuse the refusal. Because of this, prosecutors lose more refusal cases than any other type of DUI / DWI case. The skilled defense lawyers at The Kavinoky Law Firm can help defendants who refused chemical tests plan a strategy to convince a jury to excuse the refusal.

The California Jury Instructions (CALJIC) addresses refusals specifically:

• The law requires that any driver who has been lawfully arrested submit to a chemical test at the request of a peace officer who has reasonable cause to believe that the person arrested was driving under the influence.
• If the defendant refused to submit to such a test after a peace officer asked (him/her) to do so and explained the test’s nature to the defendant, then the defendant’s conduct may show that (he/she) was aware of (his/her) guilt. If you, the jury conclude that the defendant refused to submit to such a test, it is up to you to decide the meaning and importance of the refusal. However, evidence that the defendant refused to submit to such a test cannot prove guilt by itself.

These instructions are typically read to jurors preparing to deliberate California DUI / DWI cases. CALJIC also addresses the enhancement of punishment in a refusal case, even though the jury is told that they cannot be concerned with penalty or punishment in a DUI case:

• Driving under the influence or with a blood alcohol level of 0.08 percent or more AND failure to submit to or complete a test will result in suspension of (his/her) driving privilege for one year or revocation of (his/her) driving privilege for two or three years.

As the instructions make clear, jurors must decide for themselves whether a driver’s refusal of a chemical test constitutes consciousness of guilt, and whether it can be excused. There may be a valid reason for a refusal that can be excused, and help to minimize or even eliminate the consequences of a drunk driving case. A qualified California lawyer who focuses on DUI / DWI defense will thoroughly evaluate a refusal to determine whether a valid reason existed to decline a chemical test.

Suspected drunk drivers in California typically take field sobriety tests before getting arrested. These exercises shouldn’t even be called tests, because they’re designed to be failed. They exist only to create probable cause for a DUI / DWI arrest and to generate evidence for a drinking and driving court case. However, this evidence can be effectively challenged by a skilled defense attorney. A knowledgeable defense lawyer from The Kavinoky Law Firm can use the driver’s performance on a field sobriety test to demonstrate that the driver was not impaired.

Field sobriety tests fall into two categories: Standardized and Non-standardized. Three standardized tests recognized by the National Highway Traffic Safety Administration (NHTSA) are the Horizontal Gaze Nystagmus Test, the Walk-and-Turn Test, and the One-leg Stand Test.

A second category of tests are such unreliable gauges of alcohol intoxication that they aren’t even recognized by the NHTSA, yet are still used by police. These Non-standardized field sobriety tests include the Rhomberg Balance Test, the Finger-to-Nose Test, the Finger Tap Test, the Hand Pat Test, the ABCs, the Numbers Backward Test, and coin tricks.

Non-standardized field sobriety tests are more easily challenged in court, because they aren’t recognized by the NHTSA as accurate indicators of intoxication. While police claim that these tests measure mental and physical impairment from alcohol use, many of these so-called signs can be traced to physical problems other than alcohol.

This is a key aspect of successful DUI / DWI defense: Experts agree that when it comes to alcohol intoxication, mental impairment always occurs before physical impairment. Some individuals have a high tolerance for alcohol and can mask signs of physical impairment, but mental impairment can never be disguised. If a driver is physically impaired but not mentally impaired, the physical impairment must come from a source other than alcohol, and a jury must acquit a driver on a charge of driving while impaired.

Keep in mind that in order to return a DUI / DWI conviction, a jury must be convinced of the driver’s guilt beyond a reasonable doubt. An experienced DUI attorney knows that the inherent flaws in non-standard field sobriety tests pose great problems for the prosecution, and create doubt in the minds of jurors.

Obviously, many factors unrelated to alcohol intoxication can cause physical impairment, including injury, illness, fatigue, or nervousness. By taking a complete medical history, a lawyer who specializes in California DUI / DWI cases can establish whether causes other than alcohol impairment contributed to any physical impairment. Ultimately, the results of field sobriety tests can be successfully challenged.

Police who suspect a driver of DUI in California typically require the driver to take a field sobriety test such as counting numbers backward before making an arrest. Although many drivers hope that “passing” a field sobriety test will help them to avoid arrest, these “tests” exist solely to create probable cause for an arrest and generate evidence for a drunk driving court case. Fortunately, a skilled DUI defense attorney from The Kavinoky Law Firm can challenge the results of field sobriety tests as part of a strategic defense plan.

The Numbers Backward Test is so subjective an indicator of impairment from alcohol that it isn’t even standardized by the National Highway Traffic Safety Administration (NHTSA). Because the test isn’t endorsed by the NHTSA, it carries less evidentiary weight than Standardized field sobriety tests. The numbers backward exercise has no objective scoring system, and only the officer’s opinion determines whether the driver passes or fails.

When administering the Numbers Backward Test, the officer tells the driver to listen to the instructions before counting from one to ten, then back down to one. Sometimes the driver is instructed to begin at 100 or 1,000, and told to count backward until told to stop. As the test progresses, the officer will watch closely for signs that could be interpreted as alcohol impairment.

The Numbers Backward Test is a divided-attention test that’s designed to force the driver to concentrate on two tasks simultaneously. The officer will interpret the following as signs of intoxication: an inability to follow instructions, an inability to count, swaying or other balance problems, or starting or stopping the test too early.

However, many factors unrelated to alcohol intoxication could cause a driver to perform poorly on the test, including nervousness, fatigue, or motor-skills impairment. Some officers explain the instructions poorly or even administer the test incorrectly. An experienced DUI lawyer can successfully challenge the results of the numbers backward exercise or another field sobriety test.

Many drivers fear there’s no hope of successfully fighting a driving under the influence charge after a poor performance on a field sobriety test. However, counting backward and other field sobriety tests can be successfully challenged in court. A California drunk driving attorney who focuses on DUI / DWI defense can evaluate a driver’s performance on a field sobriety test and use the results to convince a jury that the driver was not impaired.

Drivers under investigation for DUI / DWI in California typically take a field sobriety test, such as the One-leg Stand Test, during a traffic stop. The One-leg Stand Test is one of three field sobriety tests standardized by the National Highway Traffic Safety Administration (NHTSA).

Unfortunately, police officers don’t use the One-leg Stand Test to determine whether a driver is impaired; they are used to justify an arrest and gather evidence for a court case. A knowledgeable DUI / DWI criminal defense attorney can effectively challenge the results of the One-leg Stand Test as part of an aggressive drunk driving defense.

The One-leg Stand Test is a divided-attention test. It purportedly assesses mental and physical impairment from alcohol intoxication by requiring drivers to focus on two tasks at once. Police and prosecutors routinely ignore everything drivers do correctly and focus on even insignificant errors as evidence of alcohol impairment.

When administering the One-leg Stand Test , an officer directs the driver to stand with arms down and feet together during the test instructions. The officer then instructs the driver to raise one leg six inches off the ground, keeping the foot parallel to the roadway. The driver is told look at his or her foot while counting “one thousand one, one thousand two…” until told to stop, typically for 30 seconds.

Police watch for four signs of impairment: Swaying, using the arms to balance, hopping on one foot, and/or lowering the foot three or more times during the test. If the officer spots two or more of these signs, he or she will presume that the driver has a blood alcohol content (BAC) of .10 or greater, and the motorist will be arrested for DUI / DWI.

Police and prosecutors regard field sobriety test results as solid evidence of intoxication, but the results of the One-leg Stand Test can be successfully challenged. To understand how this evidence can be challenged, it’s useful to know how alcohol affects the human body.

When an individual drinks alcohol, mental impairment always occurs before physical impairment. Individuals with a high tolerance for alcohol can mask physical impairment, but mental impairment cannot be disguised. If no mental impairment can be proven, then any physical impairment must be attributed to factors other than alcohol.

In order to convict a driver of DUI / DWI, the prosecutor must present evidence of both mental and physical impairment. The physical impairment displayed in the One-leg Stand Test can be attributed to sources other than alcohol, such as injury or illness. A skilled DUI / DWI attorney can prove that there are many reasons other than alcohol impairment why a driver might perform poorly on the One-leg Stand Test .

Even people who haven’t had a single drink might have difficulty standing on one leg for 30 seconds. The One-leg Stand Test is especially difficult for drivers with back or leg injuries, individuals with inner-ear disorders or other balance problems, people over age 65, and individuals who are overweight. Drivers who perform the test on uneven ground or who are wearing shoes with heels higher than two inches also face challenges.

Because field sobriety tests are extremely subjective, they can be effectively challenged in court. A California defense lawyer who focuses on drunk driving defense will show that the driver’s performance in the One-leg Stand Test and other field sobriety exercises can be attributed to many factors other than alcohol intoxication.

Per Se Law as an Element of a California DUI / DWI

The per se law operates in a way such that if it can be proven that a motorist’s blood alcohol content was .08 percent or greater at the time of driving then as a matter of law, it is illegal for that person to drive. The question of a person’s blood alcohol content level is not a question of whether a person was impaired. However, someone’s blood alcohol level can be used as circumstantial evidence that that person was too impaired to drive.

In defending a charge under the per se law, the focus will be on the accuracy of the blood alcohol test or the breath test. An experienced DUI / DWI attorney who has advanced knowledge and training in field sobriety testing will be able to present facts, theories, and technical reasons that can effectively cast doubt on the results of the sobriety tests and create a chance for their client to beat the charge.

Oftentimes, a prosecutor will try to argue that blood alcohol content levels that were measured in a test at the police station long after the motorist was driving is an indication that the motorist had that same blood alcohol content at the time he or she was driving. Well, science indicates that this is not certain to be the case.

Skilled DUI / DWI attorneys know that the absorbing and metabolizing of alcohol by the human body can vary and that oftentimes a person’s blood alcohol content can escalate long after that person has his or her last drink. That means that a person can have two shots of tequila and feel sober for some time afterwards until the alcohol can begin to take its impairing effects.

There are two tests that can be used by the authorities to determine the blood alcohol content of a motorist. These tests include a blood test and a breath test. The breath test is commonly given on the roadside and can be conducted at the police station too. Currently it isn’t practical to conduct blood tests on the side of the road, so the blood test is done exclusively at the police station or hospital.

Although all of these tests have great potential for error, the most fallible one of all is the roadside breath test (PAS test). These tests are typically given with handheld devices that are unable to distinguish between alcohol in the mouth and alcohol on the breath. This means that if you swished some brandy around your mouth and then spat it out, never swallowing any of it, the roadside breath test would indicate some blood alcohol content even though there really is none. This test is simply not accurate.

The breath testers at police stations also have their problems. One of the most common causes of error in the stations’ machines is that they are unable to adjust for the temperature of a person’s breath. A person’s mouth temperature can have the effect of greatly inflating a person’s blood alcohol content. Another problem is that the tester is calibrated for the ‘average’ person, but it is also widely known that people metabolize things at different speeds. There is no ‘average’ when it comes to processing alcohol. If you are not ‘average,’ whatever that may be, the test is inherently unfair to you. A skilled DUI / DWI attorney can make a solid case out of these problems.

Blood tests carry their own set of problems too. These problems range from contaminated equipment to lab mix ups. It is not too uncommon for labs to get different people’s blood samples confused. Also, oftentimes labs take time to get samples tested, which also increases the chances for errors.

While prosecutors might not want the public to know it, there are several effective ways to challenge evidence in a per se drunk driving case. The best way to fight a per se drunk driving case is to hire the best and most experienced lawyer skilled in DUI / DWI and drunk driving defense.

Drivers arrested on suspicion of DUI / DWI in California are required by law to provide a sample of their blood or breath for chemical testing for alcohol content, or a sample of blood or urine if they are suspected of driving under the influence of drugs (DUID). This is known as California’s Implied Consent Law. Any driver who refuses a chemical test after a lawful driving under the influence arrest faces stiff consequences from the Department of Motor Vehicles and during a court trial.

But what constitutes refusal? Police and prosecutors consider a refusal to be anything other than absolute assent to the test. However, there are actually two types of refusals: Express, where the driver says no, and Implied, where the police say a refusal occurred but the person did not expressly refuse. An experienced California DUI / DWI lawyer from The Kavinoky Law Firm will evaluate each case individually to determine whether an implied refusal might be excused.

In some cases, an implied refusal may be excused. For example, if the driver chose to take a breath test, but was unable to provide a sufficient sample of breath to allow for a reading, police often record this as a refusal, assuming the person is deliberately blocking the mouthpiece or not blowing hard enough. However, the driver may have been ill or injured and was unable to provide a sufficient sample, or the breath machine may be faulty. In this situation, if a police officer does not allow a person who chose a breath test to take a blood test instead, and records it as a refusal, this refusal may be excused.

Another implied refusal that may be excused occurs when a driver refuses to take a breath test but police then draw the driver’s blood. If the individual doesn’t object to the draw – even though technically there is no permission granted either – police shouldn’t record it as a refusal. If the police officer had honored the initial refusal and not done the forced blood draw, a refusal would have existed. However, when the officer chose not to honor the refusal and took blood anyway, the refusal is lost.

Another type of implied refusal exists when a driver arrested for DUI / DWI was physically unable to either refuse or consent, or was in and out of consciousness. California courts have ruled that a driver who is semiconscious cannot be punished for a refusal that stems from a medical condition that is unrelated to alcohol use.

If an individual charged with drunk driving isn’t advised of the consequences of refusal, namely that their driver’s license will be suspended or revoked, or if the officer fails to advise the person of the Implied Consent Law, the refusal may be excused.

A police officer’s failure to advise the driver of the consequences of refusal may also serve as a valid defense at the DMV hearing to determine whether the driver’s license should be suspended.

Refusing a chemical test carries serious consequences with both the Department of Motor Vehicles and in criminal court. However, an implied refusal, where police merely assume that the driver refused a chemical test, can often be successfully challenged by a California defense attorney experienced in handling DUI / DWI cases.

Drivers arrested for DUI / DWI who refuse to take chemical tests face consequences both in court and with the Department of Motor Vehicles. The refusal can be used to suspend or revoke the person’s driving privileges in a separate DMV action. And although refusing a chemical test means there is no evidence of a driver’s blood alcohol content (BAC) to introduce at trial, the refusal can be brought as a separate criminal charge, and the fact that the person refused a chemical test can be used as evidence of “consciousness of guilt.” Fortunately, the skilled defense attorneys of The Kavinoky Law Firm have strategies available to diminish or even eliminate the repercussions of a chemical test refusal.

The most immediate consequences of a chemical test refusal in a California DUI / DWI case will likely occur at the DMV. For a first offense with refusal, the offender’s driver’s license will be suspended for one year, with no opportunity to receive a restricted license.

The penalties are even harsher for multiple drunk driving offenses. Although the Department of Motor Vehicles will suspend the driver’s license of an individual charged with DUI / DWI even if the driver submits to a chemical test, the suspensions are longer for those who refuse.

In a second-offense DUI / DWI case within 10 years of a prior offense, the driver’s license will be suspended for two years. For a third offense within 10 years, the driver’s license will be suspended for three years. For a fourth offense within 10 years, the punishment is the same whether or not the driver refused a chemical test: A four-year revocation of the individual’s driver’s license.

Courts also punish accused drunk drivers for refusing to submit to a chemical test if the prosecutor files the refusal as a separate criminal charge. If the accused DUI / DWI driver isn’t specifically charged with refusal, the court cannot increase the punishment. The refusal must also be proven beyond a reasonable doubt, just like the driving under the influence charge. Further, a person must first be found guilty of the underlying offense of drunk driving in order to be found guilty of refusal.

If the driver is found guilty of both DUI / DWI and refusal to submit to a chemical test, the punishment meted out will depend on the number of prior offenses. The driver may face additional jail time and a longer alcohol education program. This jail time is in addition to any other term imposed by the court.

For a first-offense DUI / DWI with chemical test refusal, the driver faces an additional 48 hours in jail. For a second offense, a refusal means 96 hours of jail. On a third offense with refusal, the penalty is 10 days in jail. For a fourth offense, the jail time is 18 days.

Because of the harsh penalties imposed, it’s in the driver’s best interest to submit to a chemical test when arrested for drunk driving or driving under the influence of drugs, but that’s not always what happens. A lawyer who is well-versed in the consequences of chemical test refusal may be able to ease sanctions against drivers who refuse the test.

The Rhomberg Balance Test is a non-standardized field sobriety tests used by police investigating drunk driving or driving under the influence of drugs (DUID) in California. Many drivers hope they will avoid an arrest by “passing” a field sobriety test, but that’s almost never the case. Field sobriety tests exist solely to create probable cause to make an arrest and generate evidence to support a drunk driving court case. A skilled DUI / DWI defense attorney from The Kavinoky Law Firm can effectively challenge a field sobriety test and other evidence in a drinking and driving case as part of an aggressive defense strategy.

The Rhomberg Balance Test is not a standardized test recognized by the National Highway Traffic Safety Administration (NHTSA), so it carries less weight in court than a standardized test.

Police administer the Rhomberg Balance Test by instructing the driver to stand with feet together, head tilted back, and eyes closed. The driver must estimate the passage of 30 seconds, tilt the head forward, open his or her eyes, and say “stop” when 30 seconds have elapsed.

Unfortunately, the Rhomberg Balance Test is almost always a no-win situation for the driver. If the driver overestimates the 30-second period by counting too slowly, the officer likely will conclude that the driver has been drinking. If the driver underestimates the passage of 30 seconds by counting too quickly, the officer may conclude that the driver has been using stimulants.

During the test, the officer also is testing the driver’s ability to follow instructions and watching for swaying and muscle tightening or tremors. The officer also will note any statements the driver makes as well as the pattern of speech.

It isn’t difficult to see how a driver can “fail” the Rhomberg Balance Test as the officer is using a watch to gauge the passage of 30 seconds, while the driver is standing next to a busy street or freeway with his or her eyes shut, and can only guess at how much time has passed.

Some drivers are physically unable to perform the Rhomberg Balance Test for reasons that are unrelated to alcohol use. For example, a driver with a neck or back injury may not be able to tilt his or her head back for 30 seconds. Although this inability to perform the test is caused by a genuine disability, police may regard it as an inability to follow test instructions.

To know how field sobriety tests’ reliance on physical ability is inherently unfair, it’s useful to understand how alcohol affects the human body. Alcohol intoxication causes both mental impairment and physical impairment, but mental impairment always comes first. Physical difficulties can be hidden in individuals with a high tolerance for alcohol, but mental impairment cannot be masked. Therefore, if a driver displays physical impairment but no evidence of mental impairment, the physical difficulties must stem from a source other than alcohol.

The bottom line is that the Rhomberg Balance Test and other field sobriety tests can be effectively challenged. An experienced California DUI / DWI criminal defense attorney will attack field sobriety tests and other evidence in a drunk driving prosecution as part of a proven defense strategy.