In a previous blog post, DUI/DWI attorney Danny Russell took us through Louisiana DWI law and the consequences of refusing a chemical breathalyzer test. As explained, the breathalyzer is a device that tests a person’s blood alcohol content (“BAC”) and immediately tells an officer whether or not a person is above the legal limit (0.08 for adults over the age of 21).
- 1 So does the officer have to get your consent to give you a breathalyzer test?
So does the officer have to get your consent to give you a breathalyzer test?
Well, according to Louisiana law, you already gave your consent to a chemical breathalyzer test just by operating a vehicle on public highways or streets, so if you refuse the test, the law has some built-in penalties. The standard consequences look something like this:
- First Refusal – suspension of license for 1 year
- Second Refusal – suspension of license for 2 years
- Third Refusal – penalties are the same as a first offense DWI, if the person has refused the test after already refusing on two previous/separate occasions of DWI or was involved a crash resulting in a fatality or serious bodily injury
So we know about the chemical test, but what about the steps officers take before using the breathalyzer?
Before a chemical test is administered, officers perform what is referred to as a “Standard Field Sobriety Test” (SFST). This usually consists of three tests developed to tell an officer whether or not a person might be over the legal limit. It includes the:
- Horizontal gaze nystagmus (HGN)
- The walk and turn
- One-leg stand
Horizontal Gaze Nystagmus (HGN)
“Display nystagmus” is the involuntary jerking of the eye which occurs when a person must look sideways at an angle greater than 45 degrees. A person with a high BAC will twitch when the light is held at less than 45 degree. Typically when a person is sober, the human eye will show a normal degree of display nystagmus, meaning their eye will involuntarily jerk. But when a person has consumed a great deal of alcohol, the movement occurs at a lower threshold.
However, it is important to note that a person can display high levels of HGN due to medication or a non-alcoholic substance.
The Walk and Turn
The second test is the walk and turn. This is a “divided” attention test which requires a person to listen and follow simple instructions while performing a physical movement. For a sober person, the test might be a piece of cake, but for someone who has been drinking heavily, it could be a challenge.
To administer the test, the officer will ask you to a number of steps with your heel to your toe in a straight line. At the end of nine steps, you are to turn on one foot and return in the same manner. While you’re completing the test, the officer is looking for signs of intoxication – a lack of balance, beginning before instructed, stopping to regain balance, inability to touch heels to toes, stepping off the line, taking too many or too few steps, an incorrect turn, etc..
1-Leg Stand test
The third and final part of the SFST is 1-Leg Stand test. The person is instructed to stand with one foot about six inches off the ground while counting “one thousand-one, one thousand two, etc.,” until the officer tells you to put the foot down after about thirty seconds. The officer is looking for swaying, arm use, hopping, or inability to keep the foot elevated.
Can I Fail if I’m Sober?
Yes. The field sobriety test must be completed to the officer’s satisfaction. Because these are observatory tests rather than chemical, they are not failsafe. It is possible that a person subject to the HGN test might have an eye disease or a condition that renders them incapable of completing the test to an officer’s satisfaction. The same goes for a person suffering from a disease or injury or someone of an advanced age. All three of these factors could limit one’s ability to successfully complete a part of the test. If this is the case, a person should immediately notify the officer as to why they are unable to pass the test, and the officer is obligated to take careful note of this report. Additionally, outside elements where the test is administered can result in failure. Gravel, uneven pavement, even wet pavement can cause a person to fail. Passing cars, flashing lights, and even nervousness can cause someone to lose their balance or impair a person’s ability to concentrate and complete the tasks.
But the end of the day, the only way to be absolutely positive that a person is indeed over the legal limit is to administer a chemical or blood test. On top of that, the only way to make sure you pass that test is to never drink and drive.
In the case that you do need someone to protect your freedom, finances, and reputation, Danny Russell can help. As a Baton Rouge based DWI/DUI lawyer, he has extensive knowledge of Louisiana DWI/DUI statutes and how to evaluate evidence that law enforcement and district attorneys might attempt to use against you. Don’t take that kind of chance with your future. Reach out to Russell Law Firm for a free consultation.
****The photograph above is not a depiction of any actual event or scene, but merely a dramatization.