Arizona Criminal Defense Attorney Blog
How good AZ DUI Attorney Can Challenge Field Sobriety Test (FST) to help get your AZ DUI charges Dismissed
If you are stopped by police for Arizona DUI, generally the police officer will use a set of five-to-six common tests called Field Sobriety Tests (FST). One thing that top Arizona Criminal Defense and DUI attorneys agree on is that so many aspects of the FST can be challenged on behalf of your defense, in an effort to get your case dismissed or charges reduced.
The Arizona FST is a battery of tests that include such motor skill and cognitive testing such as the “heel-to-toe,” “finger-to-nose”, “one-leg stand”, eye test called “horizontal gaze nystagmus” test, alphabet recitation, modified position of attention (Rhomberg), “fingers-to-thumb”, “hand pat and others. Note: These are the least reliable source of evidence the prosecution can use against you. Police generally use it as a preliminary
Tool o determine if further breath or blood tests are needed. Then they will later use your performance of these tests against you. They will make it sound like you did poorly on the tests. But in fact, even a person unimpaired by drugs or alcohol may perform these tests to a “poor” standard. That is why they are often challenged.
Below is a sample of Field Sobriety Test defenses taken from “101 DUI Defense Strategies” © Winning Arizona DUI Defense Strategies © Book to give you an idea of a few defense strategies a good Arizona DUI defense Attorney may use to defend your case by active winning defense Attorney and author James Novak:
WAS YOU BATTERY OF FST CONDUCTED WITH CLIMATE, ENVORNMENTA OR LANDSCAPING DISADVANTAGES TO YOU?
The roadside could be uneven and covered by debris. The climate conditions could cause inability to perform the tests well. Were you doing the tests a surface on a hill, or a surface that contained mud, rocks, melting tar or oil, ice, snow drifts or other rough or other unsmooth or level surface? NHTSA requires that the Walk and Turn & the One Leg Stand be performed on a smooth, level surface.
THE HORIZONTAL GAZE NYSTAGMUS (HGN) IS NOT A SCIENTIFICALLY VALID TEST UNDER ROADSIDE CONDITIONS:
Did the officer report that you failed or did poorly on the HGN test?
This is the “follow the pen with your eyes test” actually has a very complicated name- the Horizontal Gaze Nystagmus (“HGN”) test. This test is allegedly meant to measures the involuntary jerking of the eye when a person is impaired by alcohol. When medical doctors conduct this test they do so in an areas with good lighting, employing medical equipment that holds the patient’s head still and clearly lists the angles. The officer, for one test, must determine whether he detects the onset of nystagmus prior to 45%. It is almost impossible without be accurate on the angle. The test can be challenged as invalid under almost all roadside and lighting conditions.
BREATH TEST OPERATOR UNLICENSED
Did the breath test operator possess a valid, unexpired operator’s license?
If not, the DUI breath test result is inadmissible.
IMPROPER PRESERVATION OF THE BLOOD SAMPLE
Was your blood sample preserved properly?
The preservation process can be an issue. The blood vials must have been stored properly prior to its use. The blood vials must not be used beyond the expiration date. The blood vials must be preserved in order to provide your defense attorney with the opportunity to test the sample with an independent lab for purposes of objectivity in your defense.
BLOOD KIT
Was the blood kit and contents in the kit, within the expiration date period? Was it properly sealed, packed, inspected, and maintained at the required temperature? When the police take your blood they usually do so using a pre-packed blood kit. However, safekeeping and inspection of the kits must be routinely performed to ensure that tubes have not expired, are sealed properly and are kept in an appropriate place that is not temperature extreme like the trunk of the car in the summer heat of Arizona.
IMPROPER TEST TIMING, PROTOCOL, PRESEVERATON OR TRANPORT OF URINE SAMPLE
Was your urine sample properly tested?
The urine taken for drug testing must also be properly tested according to required testing procedures and protocol, for timing, specimen handling, transport, labeling, and preservation, including the containers for which the urine specimen is stored.
RISING BAC
Was your blood drawn within three hours of consuming your last alcoholic beverage?
It can take up to three hours for alcohol to be absorbed in your blood stream. If the blood draw was outside of the three hour window, the results of the BAC may be challenged as invalid.
These are just a few aspects of items that can be challenged to your favor if you have received Arizona DUI charges. That is why it is important to hire an Arizona DUI attorney who defends cases in the jurisdiction for which you were charged with the AZ DUI, and challenges such issues on a daily basis. It takes experience, special skills, training, knowledge and a great amount of defense litigation experience to challenge these issues in your defense. The ultimate goal of your AZ DUI Attorney is to examine some of these issues to pave the way for flaws in the prosecutions case for total dismissal, or in the alternative reduction of charges, suppression of evidence, and getting the best outcome in your case.
If you have been arrested for any Arizona DUI other criminal charge contact the Law Office of James Novak, for your Free Consultation at 480) 413-1499. Speak directly with experienced Arizona criminal Defense and DUI Defense Attorney and James Novak (Former Prosecutor).
The Law Office of James Novak is devoted to handling 100% DUI, Drug & criminal cases in Phoenix, Tempe and surrounding cities within Maricopa County.
This post was intended to provide general information only and is not intended as specific legal advice. You should not rely upon this information alone, but should consult legal counsel regarding the application of the laws and regulations discussed and as applied to your specific case or circumstance.