Interviewer: The field sobriety test is performed, and the individual then gets arrested. They're read their Miranda warning, and they're given a Breathalyzer at the station. Is that correct?
Kevin Roach: Yes. Sometimes, they're actually given the portable Breathalyzer shortly after being pulled over as well. Officers usually supply a portable breathalyzer that they can give you either before or after administering the field sobriety test; that Breathalyzer is not admissible, but can sometimes be used as well.
Interviewer: Are those Breathalyzers the same? Do they operate the same way?
Kevin Roach: No, this is why they have you administer another official breathalyzer at the police station. The portable Breathalyzer is carried with the officer and is never inspected or calibrated. It's one like maybe you've seen at a bar. They're not the same as the one back at the station. It's a preliminary check if there is any question as to whether or not there is alcohol involved. Someone can be impaired, but by a different substance like even prescribed medication.
If an officer is unsure, but have other clear indications like the smell of alcohol on your breath, they'll usually give the driver a portable test. I see them a lot in borderline cases, with a breathalyzer BAC reading very close to .08.
I have seen a few people that have actually been let go after taking the portable test. I've seen others that are borderline, so the officer will fast-track them to the station to blow into the official Breathalyzer.
Interviewer: Have there been any cases where a police officer will say that someone passed the field sobriety test and passed the Breathalyzer, but then they’ll change it and say, "I am determined to go and still take the guy over and test him with an additional Breathalyzer"? Has that happened before where they're just saying, "Hey, I am continuing to do this"?
Kevin Roach: I have seen one case in particular that comes to mind where a client of mine was pulled over for improper lane usage. He was belligerent with the officer because he didn't think that he was legally pulled over, and he in fact had not been drinking, but the officer administered a field sobriety test anyway. The officer determined that he failed the field sobriety test, and took him back to the station. My client wanted to blow into the Breathalyzer to prove that he was not under the influence. They put him down as a refusal because he was being belligerent. They said that he refused the test. That's just one particular case that comes to mind.
I suspect that happens occasionally. I don’t think most officers would conduct this practice, but that is one way to handle someone acting belligerent and calling names and whatnot. They can just put you down as a refusal and they charge you with DUI.
Kevin J. roach is a St. Louis DWI defense attorney who has defended thousands of DWI and DUI cases in the St. Louis Metro area. Call us today at (636) 519-0085 or (866) 519-0085 for your Free Consultation!