In my years of defending DUI cases in Pennsylvania, one of the most common misconceptions I come across is people questioning why I support DUI. The fact of the matter is, I don’t support drunk driving. It is dangerous and many lives are needlessly lost because of DUI each year. Asking a DUI defense attorney “why they support DUI” is akin to asking The Innocence Project “why they support murders.” Criminal defense attorneys do not support or encourage crime, they support and encourage justice.
PA DUI Attorney fights against injustice.
As a DUI defense attorney, I call for reform in the justice system because too many people are being falsely arrested and falsely convicted of DUI. They are too many problems that are going unchecked that undermine the justice system and put all of us at risk of a false conviction. Some of these problems include:
- Police officers who have very little training in DUI detection
- Faulty and inaccurate breath testing equipment
- Lack of oversight to ensure DUI testing equipment is working properly
- Field sobriety tests that are not scientifically validated
- Field sobriety tests do not tell whether the suspect is intoxicated- there are many people who may stumble when asked to stand on one leg for 30 seconds for reasons other than being drunk
- Blood testing is inaccurate
- Crime lab technicians are overworked, under-trained and many lack education in science to begin with
- Rampant lack of oversight in crime labs
- Corrupt police officers try to inflate DUI arrests for their own personal gain
- Prosecutors have been known to conceal evidence
On top of all of these uncertainties, the penalties for DUI are extremely harsh and will affect those convicted for the rest of their lives even if it is the only blemish on their criminal record. They may end losing job opportunities and will be humiliated when anyone searches their criminal record for the rest of their lives.
As a professional Pennsylvania DUI attorney I fight for justice so that innocent people are not convicted of a DUI under such unreliable circumstances.
The Standardized Field Sobriety Tests (SFST), are one of the major tools officers use to determine whether or not they should arrest the driver for DUI. The problem is, they are really a poor indicator of impairment and lead the police to make false assumption, false arrests, false conclusions and false accusations.
Here is a news report that shows the flaws of the SFST. I would particularly like to call your attention to 1:13 where the (presumably sober) police officer can’t even perform the tests himself:
(Video Credit to Attorney Bruce Kapsack)
If you were charge with a Pennsylvania DUI on the basis of a faulty Field Sobriety Test, please call 1-866-MCSHANE.
Should I Perform the Roadside DUI Tests?
Dear PA DUI Attorney,
A friend of mine was pulled over for a DUI in Shippensburg, Cumberland County PA and asked to do the roadside tests like standing on one leg, walking a straight line and following the officer’s finger with his eyes. Every day of the week, he is a total clutz. This time he fell over while trying to stand on one leg and they charged him with a DUI even though he was not drunk. What should he do?
Under Pennsylvania DUI Law You are not Required to Perform the SFSTs
The first thing I would like to point out is that no one should ever perform these tests called the Standardized Field Sobriety Tests (SFSTs). Here are some reasons why:
- The SFSTs are entirely voluntary under Pennsylvania DUI Law and there is no negative effect or penalties for refusing these tests. they are voluntary. It is your absolute right not to do them. In fact, the prosecution cannot enter your legal decision not to volunteer to do them as evidence against you.
- The DUI roadside tests are designed for failure. You will be asked to perform unfamiliar tasks (When was the last time you stood on one leg for 30 seconds or walked literally heel to toe on the the roadside with traffic whizzing by) in an extremely high pressure situation. In the case of your clumsy friend and of many other DUI clients we have represented, the pressure of having being accused of a DUI in combination with having an officer watch you try to do these unnatural acts causes people to lose their balance and perform poorly. The person performing the test is not told what the scoring criteria is before they begin. The police at the roadside frequently only give the complicated instructions of the tests one time and one time only.
- The results of these DUI tests are subjective. No matter how a person performs on these tests, it is up to the investigating officer to interpret whether or not to arrest and charge the driver with a Pennsylvania DUI. We have seen many officers in PA take a “better safe than sorry” approach to DUI cases and arrest drivers who performed well on these tests based on the premise that they “might be intoxicated.”
- These DUI agility tests are not scientifically valid. In fact, Pennsylvania courts regularly preclude the results of the horizontal gaze nystagmus (HGN) because there is not enough evidence to substantiate that it is widely accepted in the scientific community. The claims behind the design of these tested have not been peer reviewed. In fact there is a great number of scholarly research that points to the invalidity of these tests and the extremely high rate of false positives when in these cases, such as your clumsy friend, they assume that everyone can preform these tests to the officer’s satisfaction and the only reason that someone cannot is because they are drunk. We all know that is not so.
So the question is:
Why would you perform a test that is not accurate and produces a high number of false DUI arrests when you don’t have to?
As far as your friend goes, he should consult with a qualified DUI attorney who is certified in field sobriety assessment. All of the PA DUI attorneys at The McShane Firm are certified:
- in every level of NHTSA certification in terms of police screening tests: Standardized Field Sobriety Tests (practitioner and Instructor), Drugs that Impairs Drivers, ARIDE and Drug Recognition Expert.
- Forensic Sobriety Assessment which is the most advanced certification available to DUI professionals in behavioral sobriety assessment
We can investigate the facts of his case and chart out an effective strategy for his defense.
If you are a motorist in PA, this may be the most important blog post you’ll ever read. With the holidays approaching, Pennsylvania State and local police are busy planning out more DUI roadblocks and DUI focused patrols. You will likely be stopped as well.
OK. Here’s the truth that no one will tell you but me. If you are stopped by the police at night and if they even think that you are drunk or think that they smell alcohol, you are going to be arrested no matter what you say or what you do or what the evidence is. Most police officers adopt a “better safe than sorry” approach because if they are wrong and they turn out to not arrest someone who later turns out to be drunk and that person hurts property or people or kills someone, then they will be fired and the municipality or state will be sued. So, the bad news is, if you hear the words “Have you been drinking?” or “How much have you had to drink?” or “Please step out in the car,” you are going to be arrested. There is nothing you can do about it other than try to protect yourself from a false conviction after this false accusation.
That is why I have put together a short and handy guide of what you should do if you are pulled over by the police for DUI in PA.
Shut Up!
No one can talk their way out of a DUI so don’t try it. You can only hurt yourself by talking. Don’t admit to drinking any amount of alcohol or say anything and most especially don’t lie (don’t say “I had a few” or “I had 2″). Just politely say, “Officer, I choose to remain silent”. Provide the necessary documents and remain silent. Talking will only give the officer more evidence against you. Staying silent is the best thing you can do for yourself and it is your right.
Refuse the Roadside DUI tests
There are two types of tests the officer may ask you to perform at roadside. First are the awkward high-pressure and purposeless game of Simon Says such as the alphabet test or the finger count test and then there is the Standardized Field Sobriety Tests (SFSTs). With the SFSTs you will be told to follow the officer’s finger (Horizontal Gauze Nystagmus test-which is inadmissible in Pennsylvania, yet police all across the state continue to conduct it for some unknown reason), walk a straight line (Walk and Turn test) and stand on one leg counting out loud (One Leg Stand). These tests are not scientifically valid and are designed for failure. Furthermore, police officers incorrectly administer these DUI tests leading to many false arrests. Once again this can only be used as evidence against you and will not help you. These test are totally optional and your best bet is to politely refuse. You will not be penalized for not doing them. In fact, by not playing the high-pressure meaningless game of Simon says at roadside, you will provide the officer with less data to justify his reason to arrest you. Less data and information means that their justification in arresting you is weaker and in fact they may have no justified reason at all. It may result in there being insufficient evidence to justify your arrest and therefore suppressing all of the after-acquired evidence causing your case to be dismissed.
The other test the police may ask you to perform is the portable breath test (PBT). You may think to yourself that these tests are accurate and valid. You may even think that because in truth you only had one drink that you could not possibly be over the limit. You would be wrong. These hand-held PBT’s are not precise and create false positives.
Once again this is voluntary. You are not required to do a PBT test. If you do not perform a PBT upon request at roadside you cannot be charged with a refusal for it and the jury will not hear about your refusal either. In fact, you should not do it. As these things are not specific to alcohol and are not accurate, you are voluntarily providing the police with more evidence against you. To do so, does not make sense even if you are 100% innocent. These tests are optional and you should politely refuse.
Request an Independent Blood Test
If the police take you to the station for a full evidentiary breath test or the booking center or hospital for a blood test, you have the right to to request an independent blood test. They won’t tell you that you have a right to an independent test, but you do. You simply tell them that you want them to follow the law. In Section 1547 of the Vehicle Code, we find the following language:
(h) Test by personal physician.–The person tested shall be permitted to have a physician of his own choosing administer an additional breath, blood or urine chemical test and the results of the test shall also be admissible in evidence. The chemical testing given at the direction of the police officer shall not be delayed by a person’s attempt to obtain an additional test.
Therefore any unreasonable delay in your release could frustrate your ability to get this second test and cause the original police-generated test to be suppressed. Oh yeah don’t worry if you are over the limit as the police will likely delay and not give you the opportunity to perform a second test any way.
Also, remember that the DUI crime labs that the police use are often overworked and underpaid and at times do not follow proper standards. Very few attorneys check their work. We always do. We frequently find errors that lead to a challenge of the validity of the result. The risk of a false positive from a lab error is high. (Read more about problems at forensic crime labs.)
Write things down
Another important piece of advice is to write things down. Try to establish a drinking history by going back and getting witnesses names and addresses so we can later go back and investigate it to make a true pharmacological history. People forget things and writing things down will help preserve the details. Remember, details provide for truth. The truth win cases.
The important things to take note of is who can confirm how little you had to drink and over what period of time as well as your stomach contents (what you had to eat). With this and other information we can construct what your BAC should have been at the time of driving or the time of the test to refute the state’s evidence. In addition, we want to talk with everyone who saw you so we can present witnesses that refutes the officer’s claim that you appeared drunk and instead that you were in charge of your faculties, that you made sense and that you weren’t stumbling when they saw you. Finally, we want to interview any passengers in your car or those who did not stop you from driving, so that we can gain their estimation from those who know you better than the officer who is a stranger to you as to whether or not you were capable of safe driving and how they thought that you were fine to drive and that they care about you and others and would not let you drive if they thought you were even possibly drunk.
Call a Qualified PA DUI Attorney Immediately
The best way to help yourself is to call a Qualified PA DUI Attorney Immediately. We have a 24 hour DUI helpline at 1-866-MCSHANE. As mentioned before, details win cases. The earlier you get us involved, the better we can prepare your case.
There are also time sensitive steps that need to be completed early on. For example, if your license is suspended due to a DUI refusal, you must appeal within 30 days or else your license suspension will stand. You will also want to consult a qualified attorney for your preliminary hearing. The preliminary hearing is an important legal step for your DUI defense and you should have an attorney present to represent your case.
Every Friday we take a look at some of the most commonly asked questions about Pennsylvania DUI so we can clear up any misconceptions and provide you with the most up-to-date and accurate information about Pennsylvania DUI laws and related topics. Today:
Dear Pennsylvania DUI Lawyer,
I was pulled over in Berks County and the officer asked to perform some tests like walking a straight line, standing on one leg and following his finger with my eyes. I thought I did well on them but he booked me anyways. What should I do?
The Standardized Field Sobriety Tests (SFSTs) are a series of tests used by officers to evaluate those they suspect of DUI. Most, if not all of the police out there believe that it was intended to “record” impairment when the creators of the test clearly say this is not so. It is at best a screening tool used to determine the likelihood that someone may be above 0.10 or 0.08 BAC. There is no real validated and robust research validating these roadside tests. There are some scientific-like research behind their design. In these studies that the Government points to are not peer-reviewed and they evidence some very fundamental design and experimental flaws. The percent false positive are unacceptably high. The likelihood ratios and positive predictive power are not where real science would want it. In the real world and in most cases, officers incorrectly instruct drivers on how to perform them and incorrectly interpret the results. So even if it was a valid method, then it will lead to an invalid conclusion if there is deviation from the method. I have previously blogged before about how expert research show that 93% of the time officers incorrectly administer the DUI roadside tests. Scientific studies also show that incorrectly administered roadside tests, do not yield the benefit of the science behind their design.
You should certainly consult with a qualified Pennsylvania DUI Lawyer to review your case and identify potential areas to challenge.
Here is s a list of additional posts you should read that help clarify some of the issues related to SFSTs:
Roadside DUI Test: Standardized Field Sobriety Tests Explained
Do the roadside DUI Tests Actually Measure Impaired Driving
Are the Field Sobriety Tests Scientifically Proven?
And Finally..
On February 19, 2010, Attorney Tim Barrouk became one of the first lawyers in Pennsylvania to be certified in Field Sobriety Assessment or (FSA). Attorney Barrouk is one of the finest DUI attorneys, not only in the Harrisburg area, but in the entire state of Pennsylvania and we are proud to have him as a member of our team at The McShane Firm.
From, the the FSA website
FSA promotes objective, science-based behavioral assessment of intoxication, including the use of field sobriety testing. It provides training and certification to professionals involved in DWI / DUI enforcement. FSA recognizes the serious problem of intoxicated drivers, as well as the large financial and personal costs that can accrue from an incorrect arrest.
The FSA is comprised of credentialed scientific board of:
- Steve Rubenzer, Ph.D., ABPP is a Board Certified Forensic Psychologist (American Board of Professional Psychology), serves as a reviewer for three peer-reviewed assessment-related psychology journals, and is Section Editor for Forensic Instruments for the Open Access Journal of Forensic Psychology. He completed the NHTSA Standardized Field Sobriety Test (SFST) Practitioner and Instructor courses and has written extensively about sobriety testing, including the first peer-reviewed critique of the Standardized Field Sobriety Tests. To better understand the Horizontal Gaze Nystagmus Test (HGN), he completed the graduate course on eye movements at the University of Houston College of Optometry and is first author of the most extensive and only peer-reviewed critique of the HGN test. He recently authored a review of the literature on assessing intoxication through behavioral indicators and sobriety tests that is undergoing peer review.
- Joel P. Wiesen, Ph.D., Industrial Psychologist, Director of Applied Personnel Research of Newton, MA, expert in test development and validation. Dr. Wiesen served as an expert witness on the field sobriety tests in the seminal case of US v. Horn, the only federal case to address the SFSTs.
- Scott B. Stevenson, Ph.D., Associate Professor of Optometry, University of Houston. Dr. Stevenson teaches the graduate eye movements course at the UH College of Optometry, performs original research on this topic, is a reviewer on current eye movement research for several scientific journals, and is currently conducting research on the HGN sobriety test.
This certification shows that Attorney Barrouk has demonstrated knowledge of the science and forensic use of roadside sobriety testing and evaluation of intoxication far beyond the scope of NHTSA meaning that Attorney Barrouk is certified at a higher level then the vast majority of police officers commissioned to enforce DUI laws. This knowledge and commitment is the key to successfully defending DUI cases and what makes Attorney Barrouk one of the best DUI lawyers you can find in Central Pennsylvania.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
Harrisburg based Pennsylvania DUI Lawyer, Justin J McShane, Esquire on January 8, 2009, became Pennsylvania’s first and consequently only certified attorney in “Field Sobriety Assessment” or (FSA).
From, the the FSA website
FSA promotes objective, science-based behavioral assessment of intoxication, including the use of field sobriety testing. It provides training and certification to professionals involved in DWI / DUI enforcement. FSA recognizes the serious problem of intoxicated drivers, as well as the large financial and personal costs that can accrue from an incorrect arrest.
The FSA is comprised of credentialed scientific board of:
- Steve Rubenzer, Ph.D., ABPP is a Board Certified Forensic Psychologist (American Board of Professional Psychology), serves as a reviewer for three peer-reviewed assessment-related psychology journals, and is Section Editor for Forensic Instruments for the Open Access Journal of Forensic Psychology. He completed the NHTSA Standardized Field Sobriety Test (SFST) Practitioner and Instructor courses and has written extensively about sobriety testing, including the first peer-reviewed critique of the Standardized Field Sobriety Tests. To better understand the Horizontal Gaze Nystagmus Test (HGN), he completed the graduate course on eye movements at the University of Houston College of Optometry and is first author of the most extensive and only peer-reviewed critique of the HGN test. He recently authored a review of the literature on assessing intoxication through behavioral indicators and sobriety tests that is undergoing peer review.
- Joel P. Wiesen, Ph.D., Industrial Psychologist, Director of Applied Personnel Research of Newton, MA, expert in test development and validation. Dr. Wiesen served as an expert witness on the field sobriety tests in the seminal case of US v. Horn, the only federal case to address the SFSTs.
- Scott B. Stevenson, Ph.D., Associate Professor of Optometry, University of Houston. Dr. Stevenson teaches the graduate eye movements course at the UH College of Optometry, performs original research on this topic, is a reviewer on current eye movement research for several scientific journals, and is currently conducting research on the HGN sobriety test.
The course is sixteen (16) hours of study with proficiency based testing at ten (10) different parts. There are over two hundred (200) questions in this multi-part course. It is listed as sixteen (16) hours of training.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
Board Certified Criminal Trial Advocate
By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
We have all heard of the “Innocence Project” which is a national joint legal and scientific project to identify and where appropriate re-examine cases where guilt has been found and after being examined with “fresh eyes” and with the use of DNA to either confirm or exonerate those actually convicted of a crime. To date, over two hundred (200) people who have been convicted after a full-blown Jury trial have been factually and totally exonerated through the use of DNA. I think everyone thinks this is a good idea.
Or do we?
There is little doubt that a certain segment of our society believes that someone who is simply accused of a DUI should be found guilty automatically. No trial. No Due Process. No Constitution. No Bill of Rights.
When people ask me what I do, I respond that I think that our office’s work is sort of like the DUI Innocence Project where we use science and facts to examine the Government’s case against the accused without pre-conceived notions and without pre-fixed conclusions in mind. If the accused is factually and scientifically guilty, then he or she is. If he accused is not, we contest the case using the truth as a defense: we use forensic science, metrology and experts much like the DNA based “Innocence Project’ does to exonerate the falsely accused.
Consider this scenario…
Traffic Stop. Officer approaches. Officer says, “Have you been drinking?” [You say either yes or no.-It really doesn't matter as the next event is unavoidable]. Officer says, “Step out of the car. We’re going to do some tests.”
Now this is where it gets scary. The Officer is going to try to administer the battery of roadside tests known as Standardized Field Sobriety Tests (SFSTs) as developed and published by the National Highway Traffic Safety Administration (NHTSA). The stated purpose behind these tests is to use a standardized method that has been supposedly scientifically validated to correspond to behavior by using divided attention psychomotor function tests to arrive at an objective opinion that the test taker is possibly above a .10 or a .08 BAC level.
At the conclusion of these tests, the police officer is about to make a decision as to whether or not to arrest you. In this decision you have no control or influence. In this decision, the Officer is making perhaps the single most important decision that another person will ever make for you. In this decision, the Officer holds not only your liberty in his or her hands, but also your license, your job, your self-esteem, and just about everything. The consequences are huge.
But what if the Officer, doesn’t know what he or she is doing?
What if the Officer is under-educated or improperly trained?
What if the Officer cut corners?
What if the Officer just simply doesn’t care?
Well, that is what one expert has looked into…
Lance Platt is a renowned NHTSA/IACP SFST Instructor who has testified as an expert in the proper instruction, administration and interpretation of the Standardized Field Sobriety Tests, in many, many state and federal courts. In the DWI Journal: Law & Science Journal, he published an article that examined the differences between the manner in which officer was trained to perform the Standardized Field Sobriety Tests and the manner in which the Officer actually administer them.
In other words, the difference between the book and the real world.
For example, the Horizontal Gaze Nystagmus test (the eye tracking test which is one of the 3 supposedly validated tests), Mr. Platt wrote that there are sixteen (16) distinct elements that make up the test. Mr Platt chose to examine at random three hundred and sixty (360) video recorded administrations nationwide to determine whether or not the test was given correctly by the Officers at roadside.
He found only twenty-four (24) were performed correctly per the NHTSA Manual. Those 24 represent only 7% of the tests administered, meaning that officers administered the test incorrectly 93% of the time.
Now this is 93% figure only speaks as to the incorrect administration of the test. It is very likely that when those twenty-four (24) tests that were administered correctly are further examined to see if the interpretation of the tests were correct, we will get closer to zero.
This is only for the HGN test which is only one out of the three tests given at roadside in most cases.
This is why a DUI Innocence Project is so important. This is why we do what we do.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter, Facebook or Linkedin
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Board Certified Criminal Trial Advocate By the National Board of Trial Advocacy
A Pennsylvania Supreme Court Approved Agency
As a Pennsylvania DUI Attorney, I get asked a lot of questions when I meet people socially. I was just at the Harrisburg International Airport where my flight was delayed and I struck up a conversation with another modern day refugee who was now stranded with me as we cycled through what seemed like endless 15 minute delays.
So, the topic got around to roadside testing and the Standardized Field Sobriety Tests (SFSTs). I actually asked him first what he thought of them and how useful he thought they were as a measuring tool. Without any pause, he said they were great in his opinion. “If you cannot walk a line, then you’re drunk”, he said.
Then I started ot ask him some questions about what he thought referring to what I have blogged on before about the SFSTs (“Are those tests at roadside anything more than glorified stupid human tricks?“) and (“Are the Field Sobriety Tests Scientifically Proven?“)
Then I went back to his assertion and when he said “If you cannot walk a line, then you’re drunk”. I asked him if he still thought that. I showed him this Youtube video to drive home my point.
(This video proves that the “failure” of the SFSTs does not mean guilty of a Pennsylvania DUI)
Bottom line: Just because you “fail” the roadside Standardized Field Sobriety Tests in Pennsylvania doesn’t mean you are guilty of a Pennsylvania DUI.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter , Facebook or Linkedin.
I know the title is a little provocative, but it is a question worth examining.
Today, one of the nation’s best DUI lawyers, Lawrence Taylor, posted on his blog, the DUI blog (which is a must read), a post entitled "A ‘Fraudulent’ Field Sobriety Test?"
Within his blog post, he writes about a peer-reviewed article from Science and Justice:
This summary critique [of the HGN test] demonstrates that it is scientifically meretricious and that the United States Department of Transportation indulged in deliberate fraud in order to mislead the law enforcement and legal communities into believing the test was scientifically meritorious and overvaluing its worth in the context of criminal evidence….
He further writes:
Deliberate fraud. Pretty strong language for a scientific journal. After reviewing the flawed and deceptive justifications for using nystagmus in DUI investigations, the researchers concluded that the test was essentially without scientific validity.
The scientific article reads:
The state’s argument for the field sobriety tests does not rest on proof of merit, but upon qui tacet consentit reasoning that those tests have been so widely accepted they must have been subjected to some kind of review prior to adoption in the many jurisdictions where they are used, that somewhere along the way someone would have spotted the flaws and shortcomings. Considering that the student manual was originally considered to be a confidential state document and was only obtained through an Open Records Act request, silence from the scientific community cannot be considered an endorsement of the program.
In other words, it is not science. I could not agree more. I have written on this before Are the Field Sobriety Tests Scientifically Proven?
The roadside tests are not unlike the old David Letterman Show acts of Stupid Pet Tricks. The truth is that it does not matter how well you preform on them, you are going to be arrested. If there is an odor of alcohol and you admit to drinking at all, if you fail the roadside tests, then you are going to be arrested. If there is an odor of alcohol and you admit to drinking at all, if you PASS the roadside tests, then you are going to be arrested because the officer will say that you must be an alcoholic and/or tolerant. So, it really does not matter. The only logical conclusion is to just say no to the glorified stupid human tricks.
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