The Weight Of A Breath Test In A DUI Investigation In Utah

Interviewer: In the hierarchy of the evidence that’s used against someone for a DUI, where does a breathalyzer fit in there or how much weight does it have compared to like the standardized field sobriety tests or something along those lines?

Matthew Nebeker: Yes, that’s a good question.  And that question is relevant because the way our statute is written, the law says, you know, if the person has a breath alcohol or blood alcohol of 0.08 or higher at the time of the test or at the time of driving, yes, breath test or blood tests, that’s the most reliable as far as the evidence that they’re going to use against my clients because they have a machine; theoretically it’s been checked and calibrated according to law and it doesn’t matter if the person was driving just fine, did the field sobriety test perfectly. If they’re over that number, if they’re over that 0.08, that’s all the prosecution has to show because that’s what the law says.  But a lot of times, the Intoxilyzer machine will print out a number like 0.075, just below the legal limit and the prosecutor can’t win on 0.08 or higher because he doesn’t have it but that’s when he falls back on the field sobriety tests.

A Person that Performs Poorly on Field Sobriety Test is Assumed as Being Impaired

If the driver did poorly on the field sobriety tests and they can’t maintain their balance, they can’t walk a straight line, their eyes are bouncing are over the place, then the prosecutor can say, “I don’t have the 0.08 but all of these field sobriety tests, they were determined”, the studies done that gave them validity say if they have a certain number of clues, a certain number of points that result in a failure, then that means this. So, all those clues added up, there’s science and data that says that because they have those clues, the driver’s blood alcohol is likely to be 0.10 or higher.  There’s 80 per cent chance that because they failed these field sobriety tests that they are over 0.08.  And so, that’s how they kind of use that but then, our statute says that if anyone is under the influence of any drug or alcohol or a combination of the both that renders them incapable of safely operating their vehicle, then that’s enough to convict them for DUI.

Poor Performance in the Field Sobriety Tests Coupled with Driving Patterns Can Lead to a DUI Conviction

So, what they do is they say, “Well, they have this breath test, it’s 0.75.  Look how poorly they did here.  Look at their driving pattern”, if they were swerving or weaving and they’ll try and say that they were incapable of safely operating the vehicle and therefore, you can convict them of DUI.  They compile it, so to speak. So, that’s how they use the field sobriety tests if they do not have a number to put them over the limit but if they have a number just short, poor field sobriety tests and the driving pattern, they can still go for the DUI conviction.  It’s just a little bit harder for them.

A Police Officer Must Complete all the Tests to Deduce Impairment in a Subject

Interviewer: In another words, it’s kind of like a little checklist that they have so there’s a field sobriety breathalyzer 1, breathalyzer 2 and whatever else, maybe if someone makes some sort of comment or something to the police officer, they’re still going to use that, so you try to figure out the strategy of eliminating the evidence for each one of those, right, is that correct?

Matthew Nebeker: Yes.  Let’s suppose they didn’t walk the straight line, walk the line on the 9-step Walk and Turn test, then we could say that they have a recent surgery if they have back problems or leg or knee or ankle problems, I’ll have to bring a letter from the doctor or whatever and say, “Well, this is why they were walking poorly and couldn’t keep their balance is because of this medical condition.  You can’t just assume it’s just alcohol or drug related”.

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