Prior to stopping your car, police officers must have “reasonable suspicion” to pull you over. What does this mean? Drivers have rights outlined in the Constitution, the Bill of Rights and their state laws which prevent police from stopping them without a valid reason.

If a police officer witnesses an illegal traffic violation they may stop your car and issue you a ticket for the driving violation. It is not uncommon for many drivers to be arrested for DUI after they have been pulled over by law enforcement, but first the officer must establish probable cause for the DUI arrest.

Keep in mind, if the police officer did not have a valid reason to pull you over, you may be able to successfully prove that your rights have been violated.

Establishing Probable Cause for DUI Arrest

Establishing probable cause for a DUI arrest may be more complicated than having reasonable suspicion for detaining you to investigate. First, let’s talk about reasonable suspicion. Police officers may establish reasonable suspicion by witnessing any of the following illegal driving actions (list provided by the National Highway Traffic Administration):

• Weaving
• Straddling the middle lane marker
• Turning with too wide a radius
• Erratic braking
• Driving into oncoming traffic
• Drifting into another lane
• Stopping and starting without cause
• Tailgating
• Swerving
• Inconsistent signaling
• Slow response to traffic lights
• Driving with the headlights off at night
• Speeding up and slowing down

Although reasonable suspicion may be established by these illegal driving actions, the police officer will generally need more evidence of intoxication to arrest you for a DUI.

Police officers may use field sobriety testing and breathalyzer tests to establish probable cause which is defined as “a reasonable belief that a person has committed a crime” or “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.”

Field Sobriety Tests

Field Sobriety Tests have been standardized throughout the United States and consist of the heel-to-toe walk, one leg stand, and horizontal gaze nystagmus test.

The tests could possibly include the following:

1. Horizontal Gaze Nystagmus

For this test the police officer will hold a pen (or other object) about twelve inches away from the driver’s face. The officer then slowly moves the object from one side to the other while watching the driver’s eyes. The officer is looking for the eyeball twitching or shaking. This involuntary movement of the eye could indicate that the driver has ingested an intoxicant. The officer is also paying attention to any incriminating statements the driver may make during the test.

2. One leg stand test

For this test driver stands with their feet together, arms at their side and they are instructed to lift one leg off the ground while counting. The law enforcement officer is looking for wobbling, swaying, raising the arms, or hopping. Research shows that drivers who demonstrates two or more of these indicators has a 65% chance of having a BAC of at least .10%.

3. Walk and turn test

For this test the driver takes nine heel-to-toe steps along a straight line. They then turn, and take nine steps back. What is the office observing? He is observing whether the driver can keep their balance while walking and turning and if they can follow instructions.

Breathalyzer Test

Breathalyzers measure the level of alcohol concentration in the driver’s blood. Alcohol is absorbed through the membranes in a person’s mouth, throat, stomach, and intestines and then into the bloodstream. Finally, the alcohol is expelled through evaporation into the driver’s lungs. The alcohol is then released into the driver’s breath.

A breathalyzer test allows the blood alcohol concentration of the driver’s blood to be measured. How do you measure a driver’s BAC? The amount of alcohol in 2,100 ml of the driver’s breath is exactly equivalent to the amount of alcohol in 1 ml of the driver’s blood.

Making a DUI Arrest

So how will the police officer establish probable cause? The officer must evaluate the totality of the evidence that they have established through observation, testing and the breathalyzer test. The officer may make the DUI arrest if they have enough evidence that “a reasonable person would believe that an offense has been committed and that the defendant is the one who committed it.”

The evidence must also suggest that not only has the driver consumed alcohol, but their driving is impaired by the alcohol, and it is unsafe for them to operate a motorized vehicle.

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Do you have to take the breathalyzer test? What happens if you refuse? These kinds of questions are asked every day by people who get charged with a drinking and driving. Sobriety tests themselves can be quite complicated, so this blog guide will help you understand how sobriety tests work, what rights you have, and how you can avoid major charges.

Do you have to take the breathalyzer?
While some tests you do not have to take, as no law says you must, the breathalyzer test is something you can be punished for denying. All states have laws in place where if you refuse a breathalyzer you can have your license suspended and risk other penalties.

Are breath tests 100% accurate?
No, breath tests are subject to human error. Therefore, if you fail one, it’s not always accurate. The majority of the time the breath test is correct, but the blood test is technically much more accurate. The problem with breath tests is the fact there is no difference whether you are 120 lbs or 220 lbs, nor if you’re a man or woman. Also, the officer may incorrectly operate the breathalyzer.

Do you have to take the blood test?
Yes, you must also take the blood alcohol tests. These have similar charges if you refuse them as breathalyzer tests. Blood tests are the most accurate form of sobriety test available. They too are subject to error, as is any test, but it’s very rare. If you fail both a breathalyzer and blood test, you may be in trouble.

Do you have to take other sobriety tests?
Other sobriety tests are quite often optional. There are no laws stating you have to walk in a straight line, or say the alphabet backwards, or count down in some way. These are all optional. If you are unsure, ask the officer if you must by law take this test. Rarely if ever are these field tests mandatory.

What happens if you fail and are charged?
If you fail a breathalyzer and/or blood test, you can be charged with a DUI. It depends on how many offenses you have received. Even first time offenses can be quite damaging, but of course they are less tough on you than multiple DUI charges. A first time offense often means you will get your license suspended for six months to a year, you may face some jail time, you may be fined, among other penalties. If you get further DUI charges, you risk getting a felony, which means a longer license suspension, more jail time, and bigger fines.

Who can help?
If you are charged with a drinking and driving, it’s not the end of the world, but it’s a serious charge. It may be the toughest legal battle you have to fight in your lifetime. Therefore, you need proper help, and that means hiring an experienced DUI lawyer. It’s his or her job to fight for your rights. There may have been mistakes in the arrest. The breath test may have been wrong. You may have proof you were not intoxicated. If you were drinking, you might think pleading guilty is a good idea. Pleading guilty is rarely a good idea when charged with drinking and driving. Hire a DUI lawyer and make no decisions yourself.

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Even if you have some idea of what a breathalyzer is and can do, this blog guide can give you valuable information and answers many questions. Let’s get started.

What a Breathalyzer Is Scientifically
It can seem to be a simple device until you really see how it works. A breathalyzer has a sample collection system, a chemical reacting system consisting of glass vials containing a solution sensitive to alcohol, and a meter which measure the electrical current between photo cells. Yes, it seemed easy before, but for our purposes, just remember it collects your breath for a chemical reaction; if you have alcohol in your system, technically it can be read on the breathalyzer.

How Breaths Tests Are Given
The officer asks you to breath heavily into the breathalyzer so a reading can be made. This is not exactly a blood test; it will be estimating alcohol in your blood by ratio in your breath. You breath into the breathalyzer, a reading is given, and the officer multiplies it. All states use the .08% BAC (blood alcohol content) legal limit for drinking and driving.

False Readings and Other Problems
Breathalyzers are not full proof. The best means for seeing if you are under the influence of alcohol and/or drugs is a blood test. Alcohol goes into your blood, not your urine. The blood test is also more effective than the breathalyzer itself. False readings are common enough to be a problem, as the officer giving the test may read it incorrectly if not use the device wrong. This is not always their fault; the breathalyzer requires some guess work. Because of this, defenses can be based on incorrect usage of the breathalyzer.

Defending a Positive Breathalyzer Test
Legally, all states bind you to taking the breathalyzer tests. If you refuse the breathalyzer, you can expect immediate penalties. Usually, your license is automatically suspended, and you may get further penalties. If the arresting officer believes you are clearly over the limit, he or she can still legally arrest you. If you take the breathalyzer and it comes up positive, the game is not over. The breathalyzer, as noted, is a device with great potential for error. If your BAC level is very close to the legal limit, your defense can be based on whether you truly were drinking and driving. Since the breathalyzer isn’t full proof, typically other evidence such as blood tests are brought. In any DUI defense, you need an experienced attorney.

Getting Help
If you were recently pulled over and failed a breathalyzer, you may feel the game is up. You won’t be able to drive for some time, you’ll pay large fines, worse yet you may even have some jail time. Actually, a strong DUI defense can at the least limit the penalties you receive, if not stop them entirely. In order to get help with DUI defense, you need a DUI attorney. You want a specialist who can take the time to spend on your case, defend you in court, and fight for your rights if mistakes were made.

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You admit to the officer you’ve been drinking, and she asks how much you drank. You answer, and she says you’ll have to take a breathalyzer and a sobriety test. Then, you fail the breathalyzer, or you pass it and completely fail the sobriety test.

Many mistakes are being made in these examples. It’s not wrong to admit you’ve been drinking, but there is a fine line when it comes to answering questions you may have to fight in court. Yes, you can admit to drinking, but 1) just because you fail a breathalyzer does not mean your guilty, 2) the officer has to follow the  law too, and 3) you do not have to take sobriety tests.

An effective defense against DUI  is often  bargaining with the prosecution for a lesser charge. In other ways, you can show the judge or jury enough doubt about the case to make it tougher for the prosecution to win with full charges.

Why can the breathalyzer be wrong?
Breathalyzers can be wrong. The most effective test  for BAC (blood alcohol content) is in fact not the breathalyzer which any officer can give, but the blood test. Alcohol goes into your blood and that’s the best way to test for it.

Breathalyzers can vary in accuracy from person to person. It is clearly not an exact science. The breathalyzer tests blood alcohol from exhaled air, which is then multiplied greatly to get an estimate. If it sounds flawed, that’s because it’s simply the most convenient test for officers on the road. Yes, it is accurate much of the time, but it often does not stand in court without further evidence. Breathalyzer tests have been proven to be wrong in many cases. Just because you fail one does not mean you should plead guilty.

Why not take a sobriety test?
Also, if you plead guilty based on a sobriety test, it’s a mistake. If you fail both the breathalyzer and sobriety test, you still need not necessarily plead guilty. Why? Quite simply, sobriety tests are optional, and some officers perform them incorrectly. So we now know breathalyzers and sobriety tests can be inaccurate.

What mistakes can the officer make?
The officer can pull you over without probable cause. He or she might pull you over based on how your car looks or more often how you look. This is against the law, “profiling” suspects before they’ve done anything wrong. Also, if you choose to take a sobriety test just to prove your not drunk, the officer may  not perform it accurately. Another way officers make mistakes is never reading your rights, the Miranda.

When should you plead guilty?
There are cases where pleading guilty to lesser charges is definitely smart. However, never make this decision without the counsel of a DUI lawyer. You need someone who has years experience in handling cases just like yours. Never, ever plead guilty without consulting a lawyer.

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