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Q. The police officer never read me my Miranda Rights. Does that make my DUI arrest illegal?

A. The answer is generally no. This is because once an arrest is made, officers seldom question DUI arrestees. However, this is a sophisticated area of the law which you should discuss with a lawyer. Certain situations do arise where officers improperly question or coerce a motorist.

Q. What is a Field Sobriety Test?

A. Field Sobriety Tests are probably the most complicated aspect of a DUI arrest. In the first place, a distinction must be made between Standardized Field Sobriety Tests (SFSTs) and non-standardized Field Sobriety Tests. A large majority of police officers are trained in Standardized Field Sobriety Tests. These tests were developed by the U.S. Department of Transportation National Highway Transportation Safety Association (NHTSA). These tests are supposed to be uniformly applied across the United States for consistency and accuracy. SFSTs consist of:

  1. The Horizontal Gaze Nystagmus test,
  2. The walk and turn test, and
  3. The one legged stand test.

If you were given any other FST (including counting backwards, saying the alphabet backwards, or finger to nose test) call Goldberg Legal Services right away. NHTSA’s 2006 manual explains FSTs best: “The test . . . must be one that is reasonably simple for the average person to perform when sober. Tests that are difficult for a sober subject to perform have little or no evidentiary value.” NHTSA 2006 Student Manual at VII-4.

Q. I don’t think I “failed” the field sobriety tests, but the police officer said I did. What can be done about this?

A. The term “fail” is not used by experienced police officers. There is no such thing as “failing” a Field Sobriety Test. The NHTSA student manual, which is the foremost authority on Standardized Field Sobriety Testing, and which should form the basis of every officer’s DUI enforcement training, never uses the word “fail.” Instead, the NHTSA manual trains officers to look for “clues to impairment.” According to NHTSA, there are a total of six clues to impairment for the HGN test, eight clues to impairment for the walk and turn test, and four clues to impairment for the one legged stand test. According to NHTSA, if a motorist displays four of a total six clues to impairment on the HGN test, two of a total of eight clues on the walk and turn test, and two of a total of four clues on the one legged stand test, then “it is likely that the suspect’s blood alcohol concentration is above .10.”

Q. The only reason I couldn’t complete the Field Sobriety Test was because I have a bad leg or bad back. What can I do to challenge the test?

A. Preexisting injuries can cause motorists to “fail” a Field Sobriety Test. In fact, NHTSA’s student training manual acknowledges that, “The original research (on Standardized Field Sobriety Testing) indicated that certain individuals over 65 years of age, (and individuals with) back, leg, or inner ear problems, or people who are overweight by 50 or more pounds had difficulty performing this test.” Id. At VIII-14.

Q. The officer gave me a breathalyzer before he arrested me, it that admissible?

A. Results from an on-scene breathalyzer are not admissible as evidence. On-scene breathalyzers are generally known as Preliminary Breath Tests or (PBTs). PBTs are inaccurate and Pennsylvania law excludes them from evidence. Police officers are instructed to give PBTs only after they have administered SFSTs. The sole purpose of an on-scene breathalyzer is to confirm whether or not a motorist has consumed alcohol. Because PBTs are not calibrated, they are not accurate and cannot be relied upon to give an accurate indication of a person’s BAC.

Q. The police say my BAC was above .08, but I only had a few drinks. How can this be?

A. BAC or blood alcohol content is completely dependant on your body’s ability to absorb and metabolize alcohol. Eating food is the primary way to slow the absorption of alcohol. Thus, if you drink on an empty stomach, it may be possible to have a BAC level above .08 or .10 after just a few drinks.

Q. When I was arrested I consented to a blood draw. The test results came back with a BAC above .08, but I know I wasn’t drunk. Is there any way to fight this?

A. Fighting blood test results can be done. It is a complex process which begins with subpoenaing the gas chromatograph, mass spectrometry, or similar test results. Computers print out a chart or graph for each blood sample tested. Depending on abnormalities in these graphs, the test results can be challenged. This is the most likely technical challenge to be made against blood test results. However, many other challenges can be raised. A lawyer must review the case thoroughly to see what defenses may be raised.

Q. I’ve appeared in court two times already. The police failed to appear both times, and the Judge keeps letting the prosecution postpone the case. Shouldn’t the case be dismissed if the police fail to appear a second time?

A. Court postponements can aggravate even the most patient clients. Two Pennsylvania Rules of Criminal Procedure control court postponements. Pennsylvania Rule of Criminal Procedure 106 favors the prosecution. Under this rule, a judge can grant any postponement as long as the decision is made in the interests of justice and is not arbitrary. Under this rule, it is irrelevant whether the case has been postponed numerous times. Pennsylvania Rule of Criminal Procedure 600 is the other rule that controls postponements. This is the more defendant-friendly rule. While difficult for most clients to accept, Rule of Criminal Procedure 600(A)(3) theoretically favors defendants by requiring that a trial must be held within 365 days of the filing of a written complaint. While 365 days seems like a long time, Rule 600 ensures that clients get a (more or less) speedy trial.


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Phone: 412-926-8898
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