9. An Improper 20-Minute Observation Before The Breath Alcohol Test
Regulations require the officer to watch the Nassau County DWI suspect continuously for at least 20 minutes prior to administering the breath alcohol test. The officer must make sure that during this period the person does not consume anything, burp, belch, hiccup or regurgitate. Any of these may cause alcohol to travel from the stomach to the mouth. Blowing this “mouth alcohol” into the breath machine triggers an exaggeratedly high BAC reading.
Nassau County DWI Officers rarely follow this required observation procedure. They usually perform paperwork, write reports, set up the machine and converse with their partners, diverting their attention from the DWI suspect who must be watched vigilantly during this period. Failure to follow this procedure casts doubt on the validity of the test result, and can sometimes get the test thrown out of court altogether.
10. The Police Officer Lacked Justification To Make The DUI Traffic Stop
Police officers cannot pull you over arbitrarily. To conduct a lawful Nassau County DWI traffic stop, the DWI officer must provide “specific articulable facts” indicating a “reasonable suspicion” that you were committing a traffic violation. You are entitled to a special court proceeding called a “suppression hearing” where a judge determines whether the DWI officer can meet this standard. If he cannot, in all likelihood the entire DWI case will be dismissed.
11. Inherent Error Rate In DWI Blood and Breath Alcohol Testing
Let’s assume maintenance and calibration of the machines are perfect, the breath or blood test is administered exactly according to procedure, and no background or physiological factors exist that would produce false results (and, by the way, such a “perfect scenario” is rare).
An inherent error still exists as to both blood alcohol testing procedures. Most experts agree the inherent error rate is about +/- .02 for DWI breath testing and +/- .005 for DUI blood testing.
12. The DWI Officer Has No Baseline For Your Performance On The Field Sobriety Tests
The Nassau County DWI officer will probably claim you “performed poorly” on the field sobriety tests, and that this serves as evidence of impairment. But “poorly” compared to what? This claim means very little without knowing how you would perform normally—even with nothing to drink. Indeed, people vary tremendously in their natural ability (or inability) to perform DWI field sobriety tests.
How well a given person performs the field sobriety tests depends on many factors: natural level of coordination and equilibrium, natural level of balance, fitness level, composure in the face of pressure, injuries, age and practice, among others.
13. Factors Other Than Alcohol Can Cause Poor Performance On DWI Field Sobriety Tests
Even if you performed less than perfectly on the Nassau County DWI field sobriety tests, this may be attributable to unfair test conditions such as:
The tests occurring on uneven surfaces or slippery terrain
The distraction of flashing lights and traffic whizzing by
The test area being too dark or amidst glaring lights
]Cold temperatures, rain or wind
Unsuitable footwear—such as boots, high heels or dress shoes
Nervousness, anxiety and/or frustration
Most people who had nothing to drink would still struggle with the FSTs under these conditions. The upshot is this: even if you struggled on the roadside tests, this may well be attributable to the setting and circumstances rather than attributable to you being intoxicated.
14. The DWI Standardized Field Sobriety Tests Were Not Properly Administered
The National Highway Traffic Safety Administration (NHTSA) devised national standards for how DWI officers are to administer the three standardized field sobriety tests: the Horizontal Gaze Nystagmus Test, the Walk-and-Turn Test and the One-Leg Stand Test. But DWI officers often fail to adhere to these national guidelines. Many never even received training as to the NHTSA guidelines. This opens up their whole Nassau County DWI investigation to attack.
Indeed, often times a DWI officer will say in his report the DWI suspect “failed” or “performed poorly” on the field sobriety tests; but when the performance is judged according to NHTSA’s national standards, the person did everything correctly! This underscores a basic fact of DWI defense: the arresting officers are biased and frequently do slipshod DWI investigations. Their claims and opinions should never be taken at face value.
15. The Non-Standardized Field Sobriety Tests Lack Reliability
The non-standardized field sobriety tests include (among others) the finger-to-nose test , the finger count test, the hand pat test, the coin pickup, the alphabet test, the reverse counting test and the Rhomberg test (tilting your head back and estimating 30 seconds). The National Highway Traffic Safety Administration (NHTSA) has set no standards for how to administer, score or interpret these tests, and no studies have ever shown them to be reliable indicators of DUI impairment.
16. Field Sobriety Tests Provide A Poor Measure Of DWI Impairment
Even when the standardized field sobriety tests are administered perfectly (which is rare), they still provide a very inaccurate measure of whether a Nassau County DWI suspect is impaired. According to NHTSA, for example, the one leg stand test has a 65% accuracy rate and the walk-and-turn test a 68% accuracy rate.
This means that if people were convicted based on these roadside tests, one third of them would be innocent and wrongly convicted. Or, viewed another way, when officers arrest DWI suspects based on failing these tests, one in three suspects is wrongfully arrested.
17. Mouth Alcohol Can Contaminate The Breath Alcohol Test Results
Ideally, Nassau County DWI breath testing devices detect alveolar air of the deep lungs, which is loosely correlated with blood alcohol level. But the breath testing machine can be “tricked” by latent alcohol in the mouth—often caused by burping, belching, or the recent use of cough syrup, cold medicine, mouthwash or breath spray.
When the breath testing machine picks up mouth alcohol rather than deep lung air, it gives BAC readings greatly higher than the true BAC. This becomes a particular problem for DWI arrestees with dentures, denture adhesives, braces, cavities, food impactions, orthodontic work or who have food particles trapped between their teeth (as all of these conditions tend to produce mouth alcohol).
18. The Breath Alcohol Test Yields Unduly High Results During Absorption
Breath alcohol testing while alcohol is still absorbing into your bloodstream often yields falsely high BAC readings. During the absorption stage, which can last as long as three hours after you finish drinking, the BAC in arterial blood is significantly higher—as much as 60% higher—than the BAC in venous blood. Because the alveolar deep-lung air blown into the breath machine is bathed in arterial blood, not venous blood, a falsely high BAC is generated.
19. Police Have No “Special Ability” To Judge Intoxication Levels
Police and Nassau County DWI prosecutors like to suggest that trained and experienced officers have a “special ability” to discern when a DWI suspect is under the influence (and therefore jurors should defer to the officer’s opinion that the DWI defendant was, in fact, impaired).
But a controlled study by Rutgers University’s Alcohol Behavior Research Laboratory found otherwise. Police officers’ ability to judge intoxication levels was no more accurate than that of bartenders or social drinkers. Moreover, none of the three groups—experienced police officers, bartenders or social drinkers—correctly judged levels of intoxication more than 25 percent of the time.
20. No Sign Of Mental Impairment
Being “under the influence” consists of two types of impairment: mental and physical. Most police will admit that upon being pulled over, the DWI suspect was coherent, alert and responded appropriately to the officer’s questions. Therefore no sign of “mental impairment” existed.
But, as any DWI toxicologists will tell you, “mental impairment” always precedes “physical impairment.” So if mental impairment was not present, then, presumably, neither mental nor physical impairment was present.
21. Innocent Explanations For The Symptoms Of Intoxication
Police officers almost always claim to have observed certain “objective symptoms of intoxication” in the Nassau County DWI suspect. The standard list includes:
Bloodshot and watery eyes
A flushed face and
An unsteady gait
DWI police reports feature pre-printed boxes for these symptoms that officers merely check off. Of course, the officers almost never photograph, videotape or audiotape the DWI suspect so that jurors can later judge for themselves whether and to what extent these symptoms were present.
In any event, non-alcohol causes often explain these observations. For example, fatigue, allergies and eye strain cause bloodshot eyes. Nervousness, embarrassment and anger over the DWI traffic stop cause flushing. Intimidation and fluster cause slurred speech.
The officer rarely takes these innocent explanations into account. The Nassau County DWI defense lawyer must emphasize to the jury that the evidence is just as consistent with non-alcohol explanations as it with intoxication.
22. Speeding Is Not Correlated With DWI
In many of our Nassau County DWI cases, the officer pulled the client over for speeding. And the officer alleges the client to be under the influence based (at least in part) on the fact the client was speeding. But national studies demonstrate no correlation between speeding and intoxication. A speeding driver is no more likely to be drunk than sober. To be sure, speeding is often unsafe and a violation of the law in its own right; but it is not evidence the driver is DWI.
23. Radio Frequency Interference May Have Contaminated Your BAC Tests
Radio waves in the air—known as Radio Frequency Interference (or RFI)—can alter the results of almost any DWI blood or breath alcohol testing device.
Radio Frequency Interference emits from almost any electronic device, including police radios, police scanners, radar devices and computers. Although studies have confirmed the danger of Radio Frequency Interference or electromagnetic interference to render false BAC readings, it is difficult to determine whether or to what extent RFI altered the result in a given DWI case. Yet it is one more reason for skepticism.
24. Breath Testing Machines Mistake Other Chemicals for Alcohol
DWI Breath alcohol testing machines also detect non-alcohol compounds, which they frequently mistake for alcohol. Among the compounds most commonly mistaken for alcohol are ethylene, toluene, nitrous oxide, diethyl ether, acetonitrile and isopropanol.
The presence of any of these compounds in the DWI suspect’s lung tissue will likely cause a false, or falsely high, blood alcohol reading. We find that people frequently ingest these compounds at work or in other environments where the chemicals are present.
25. Low-Carb Diets Can Cause Falsely High DWI Breath Test Readings
A DWI suspect on a low-carb diet may generate an erroneously high blood alcohol reading from the DWI breath testing machines. On a high-protein diet, the body produces ketosis as it burns stored body fat for energy (a process that has produced dramatic weight loss for many adherers to Adkins style diets).
Consumption of carbohydrates (such as alcoholic beverages) during ketosis can cause the body itself to produce a substance called “isopropyl alcohol.” Most Nassau County DWI breath testing machines cannot distinguish “isopropyl alcohol” from ethanol (the alcohol that we drink and that causes impairment).
26. Breathing Techniques May Alter Breath Test Results
Breathing techniques may produce falsely high breath test results. A longer breath sample—more than 10 seconds—may generate a significantly higher BAC reading because the machinery is calibrated to test a 10 second sample. Additionally, a person who breaths shallow or holds her breath may blow residual mouth alcohol, again producing a higher reading than her true BAC. Hyperventilation may also impair the test.
27. Breath Temperature May Alter Breath Test Results
Most Nassau County DWI breath devices calibrate to test breath at 34 C. Simulator solutions use the same temperature. But when a DWI suspect’s breath temperature varies—as is often the case—this can produce a falsely high BAC result. Even a variation only one degree higher can produce a BAC reading 7% higher.
30. A “Disconnect” May Exist Between Your BAC And Symptoms Of Intoxication
Certain symptoms of intoxication can predictably be observed at each successively higher blood alcohol level. Often we see Nassau County DWI cases where the person’s BAC reading comes back very high, two or three times the legal limit.
However, the person’s driving, behavior and FSTs are consistent with sobriety or only slight impairment. We know the BAC reading is wrong. It doesn’t match the other evidence. We call this a “disconnect case.” Any time the alleged blood alcohol level does not match up with the symptoms we would expect to see at that level, the prosecution’s whole Nassau County DWI case is called into question.