The One-Legged Stand Test: In this FST, an officer will instruct a driver to stand up straight while raising one foot about six inches off the ground. After a few seconds, the officer will then tell the motorist to place their foot back on the ground. The officer is looking for whether the driver loses their balance, uses their arms to keep themselves up, or fluctuates the height of their raised foot.

The Walk-and-Turn Test: For this FST, the officer asks the driver to take nine steps forward, heel-to-toe, before turning around and coming back the same way. This FST tests a motorist’s ability to follow instructions, as well as their balance. Aside from signs of imbalance, cues of intoxication include when drivers take the incorrect number of steps, are unable to negotiate the turn, or otherwise fail to follow the instructions.

The Horizontal Gaze Nystagmus Test: When an officer conducts the horizontal gaze nystagmus test, he holds a pen or other object a few inches in front of the driver’s eyes, moving it from side to side. The officer takes note of any involuntary eye movements as the motorist’s eyes track the moving pen.

Of course, there are many problems with each of these specific FSTs, as well as with FSTs in general. One of the most common criticisms is that FSTs fail to account for certain medical conditions. For example, seizure medications can cause a person’s eye to jerk unpredictably, incorrectly sending an intoxication cue. Similarly, anyone who has suffered physical injury to their legs or feet may have a difficult time completing the walk-and-turn or one-legged stand tests.

Additionally, FSTs require the officer to use his subjective interpretation to determine whether the motorist passed or failed. This introduces the possibility for numerous other errors, further decreasing the effectiveness of FSTs in general.

Have You Been Arrested for an Arizona DUI?

If you have recently been arrested for an Arizona DUI offense, contact Attorney James E. Novak for a free consultation. Attorney Novak is a respected Tempe Arizona DUI lawyer with extensive experience handling all types of drunk driving cases, including extreme DUIs as well as first-time DUIs. Attorney Novak understands how to undermine the prosecution’s case with common sense, legal argument, and, when appropriate, scientific evidence. To learn more about how Attorney Novak can help you defend against the charges you are facing, call 480-413-1499 to schedule a free consultation to discuss your case today.

Additional Resources:

• A.R.S. 28-1381 – DUI Laws
• A.R.S. 28-1382 –Extreme DUI Laws

According to the court’s opinion, before the defendant was arrested, two sheriff’s officers, Deputy Davis and Deputy Gil, responded to a 911 call in Tucson and found the defendant in a stopped vehicle in the middle of the road, with the engine still running. The defendant was sleeping in the driver’s seat. Deputy Davis administered field sobriety tests, arrested the defendant, and obtained a telephonic search warrant to draw his blood. Testing showed that marijuana and oxycodone were present in the defendant’s blood.

Deputy Davis died before the defendant’s case went to trial, and Deputy Gil was the only officer to testify at the trial. While Deputy Gil was being questioned at trial, the prosecution asked her how she would administer the field sobriety tests (FSTs). Because Deputy Davis had administered the tests in this case, the defendant objected as to the relevance of Gil’s administration of FSTs. The court allowed her to demonstrate the walk-and-turn and one-leg stand FSTs despite the objection.

On appeal, the defendant argued that the demonstrations were irrelevant and prejudicial and should not have been allowed. He also argued that his Sixth Amendment rights were violated, because he claimed that his right to confront and cross-examine witnesses was violated. The defendant contended that Deputy Gil’s testimony related to the administration of the FSTs was improper because it violated his right to confront and cross-examine witnesses. He argued that Deputy Gil was testifying about Davis’s statements and opinions, and that the defendant could not confront and cross-examine Davis about those statements and opinions.

The Sixth Amendment to the U.S. Constitution gives a defendant the right “to be confronted with the witnesses against him.” Arizona courts have held that this includes the right to confront witnesses “face-to-face,” primarily through cross-examination. The appeals court, however, decided that even if the demonstrations were irrelevant and prejudicial, any error in allowing them was harmless because there was “overwhelming evidence” of the defendant’s guilt. Concerning the Sixth Amendment argument, the court found that Deputy Gil only testified about her own observations and opinions of the defendant. She testified that she observed the defendant while he was performing the FSTs and that he did poorly on the tests. Therefore, the court found that the testimony was based on Gil’s own observations, and that the defendant was able to confront Gil and cross-examine her. Therefore, the court upheld the defendant’s convictions and sentences.

Have You Been Arrested for an Arizona DUI?

If you have been arrested for driving under the influence in Arizona, you are subject to harsh penalties, even for first-time offenders. The Phoenix-based Law Office of James E. Novak has more than 13 years of experience representing individuals charged with Arizona DUI offenses and is committed to upholding the rights of those accused of DUI offenses. He represents individuals throughout Tempe and the surrounding areas of Arizona, including Mesa, Gilbert, Chandler, Phoenix, Scottsdale, and East Valley. Contact the Law Office of James E. Novak at 480-413-1499 or send us a message online to set up a free initial consultation.

Additional Resources:

• A.R.S. 28-1381 – DUI Laws
• A.R.S. 28-1382 –Extreme DUI Laws

Clearly, police officers are not able to obtain a warrant when they witness someone commit a crime. Therefore, courts have determined that if a police officer has probable cause to believe that someone has broken the law, the officer can stop and arrest them.

Sometimes, however, police officers have a belief that a crime has been committed, but cannot be sure. In these situations, a police officer can stop a citizen, ask them questions, and conduct an investigation so long as they have reasonable suspicion that the person has committed, is committing, or is about to commit a crime. In order to justify this type of stop, an officer must be able to point to articulable facts supporting the officer’s belief that the person stopped was involved in criminal activity.

more How Police Use Evidence of Intoxication to Justify Searching a Car

While police are supposed to rely on objective information, in reality, this is not always the case. Police routinely act on “hunches” that are based on simple – and often incorrect – stereotypes. While this is not legal, it happens. For example, an officer might think a motorist is too young to have such a nice car. That “hunch” by itself cannot be the basis for a traffic stop; however, if the officer claims he believed the driver to be intoxicated a traffic stop is justified.

Thus, it is not uncommon for an officer to justify the stop of an individual they believe to be involved in criminal activity by claiming that the person was intoxicated. However, as noted above, the officer must be able to point to facts supporting this conclusion. If an officer cannot do so, the stop may be invalid and any evidence recovered as a result of the stop can be suppressed. As a recent case illustrates, sometimes officers will bootstrap their intoxication observations with claims that the driver was also very nervous.

In some cases, an officer’s cited reasons for his suspicion may not make sense, calling into question whether the basis of the traffic stop was legitimate. For example, if an officer claims to smell marijuana smoke emanating from the vehicle at a stop light, it would stand to reason that there would be marijuana in the car. If no marijuana is found, that may cast doubt on the officer’s credibility.

Have You Been Arrested for an Arizona DUI?

If you have recently been arrested for driving under the influence in Arizona, you should contact the dedicated Arizona DUI defense attorney James E. Novak. Attorney Novak is a preeminent Tempe DUI attorney with extensive experience handling all types of DUI cases. To learn more about how Attorney Novak can help you defend against the charges you are facing, call 480-413-1499 to schedule a free consultation today.

Additional Resources:

• A.R.S. section 28-1381
• 4th Amendment to the U.S. Constitution

Other Articles of Interest from The Law Office of James Novak’s Phoenix DUI Blog: Court Discusses Spousal Privilege in Recent Arizona DUI Case, Phoenix DUI Law Blog, December 11, 2018

Court Allows Results of Defendant’s Blood Test to Show Her Knowledge of the Drugs That Were Found in Her Car, Phoenix DUI Law Blog, November 29, 2018

While some people may legally obtain and use marijuana in the state, Arizona still does not have a proper means of testing for pot in a driver’s system. The entire country is struggling with this issue. Marijuana DUI law is still evolving given the country’s changing attitudes toward marijuana. With that in mind, our legal office serving the Phoenix, AZ area would like to consider some of the current issues related to field sobriety tests to detect marijuana use.

About Field Sobriety Tests

A field sobriety test is a way for law enforcement to assess the motor skills and decision-making skills of a driver who is suspected to be under the influence of a controlled substance.

The nature of these tests can vary, but they generally involve:

• Demonstrations of balance, such as standing on one leg or walking a straight line
• Demonstrations of basic coordination and motor skills, such as touching one’s nose
• Assessment of mental state, such as reciting the alphabet and simple information
• Checking the tracking ability of the eyes

Can Field Sobriety Tests Detect Marijuana Use?

No.

There are many problems with field sobriety tests even when trying to determine if a person has been drinking. The effects of marijuana can vary from person to person. Additionally, field sobriety tests are unscientific, and the nervousness of a traffic stop and other factors may contribute to poor performance of simple tasks.

Simply put, field sobriety tests are not a reliable way for law enforcement to determine if a driver has been using marijuana.

Stories in the News About Marijuana Sobriety Testing

These assertions are backed up by stories in the news.

In the state of Massachusetts, for instance the Supreme Judicial Court ruled that field sobriety tests cannot be used as concrete evidence against a driver who is suspected to have been driving under the influence of marijuana.

Law Enforcement Doesn’t Have Reliable Marijuana Testing

While some law enforcement is using special swabs to detect the presence of THC in a person’s saliva, the accuracy of these tests is still up for debate. Blood tests can measure the amount of THC in someone’s system, but again, marijuana can affect people in different ways. Someone may have more than 5 nanograms of THC in their system but function completely normally without any impairment. By contrast, someone with that much THC in their system may not be able to operate a vehicle safely.

How an Attorney Can Help You

At the moment, scientists are still working out a reliable form of testing that is accurate for marijuana DUI cases that also take into account actual impairment. Research is ongoing.

Because of these facts, it’s important to have an attorney on your side who understands the limits and inaccuracies of field sobriety tests when it comes to marijuana DUI cases.

Contact an Experienced Marijuana DUI Lawyer

For more information about your legal rights and options following an arrest for driving under the influence of marijuana, be sure to contact the Law Office of James Novak. We will fight diligently for you during your time of legal need.