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Cover Story: Don't Blow It

Don't drink and drive (or take the tests)

By Leslie Blade · October 1st, 2003 · Cover Story
If you're pulled over by police and asked to touch your nose while standing with one leg in the air or to recite the alphabet, you don't have to comply.

"Field sobriety tests," as they're called, are supposed to indicate whether a suspected drunk driver is actually impaired. But the tests are unscientific and designed for failure, according to Robert Andrews, former president of the Greater Cincinnati Defense Lawyers Association.

Breathalyzers are no better, he says.

"The chemical tests can be successfully challenged, and the sobriety tests are just an opinion," Andrews says. "Neither one involves any scientific evidence, and you do not legally have to comply."

Most people don't know their legal rights, particularly when a roadside or traffic stop is involved. Ohio law doesn't require a person to submit to any verbal or nonverbal field sobriety tests, including reciting the alphabet, the gaze test, the walk-and-turn test, the one-legged stand or a hand-held breath-testing device.

Since July 1, newly enacted Ohio legislation lowers the presumptive level for blood alcohol content (BAC) for drivers from 0.1 percent to 0.08 percent. This new standard brings Ohio into compliance with requirements for the state to collect millions of dollars in federal highway funds.

The new standard makes sense, according to a statement by Col.

Paul McClellan, superintendent of the Ohio State Highway Patrol.

"Virtually all drivers are substantially impaired at .08 BAC," he wrote. "Laboratory and test track research shows that the vast majority of drivers, even experienced drinkers, are impaired at .08 with regard to critical driving tasks."

But a BAC below .08 percent doesn't mean you can't be charged with drunk driving. There is no absolute "legal limit" except zero. If you fail a roadside sobriety test, the charge could rest on the police officer's opinion.

In an article called "Five Myths About Defending Accused Drunk Drivers," Columbus attorney William C. Head says the equipment used to test drivers' BAC is unreliable.

"Most attorneys have no idea how woefully inadequate infrared breath machines are as evidence-gathering devices," Head wrote. "These machines are so unsophisticated that virtually no scientist would ever trust the results as a basis for scholarly research or scientific investigation. Yet attorneys assume that, since the state has approved the machine, its accuracy and reliability are not subject to challenge."

But Columbus attorney D. Timothy Huey knows better. He's the only Ohio lawyer to own breath-testing devices made by every manufacturer that provides machines to Ohio law enforcement agencies for DUI evidential breath testing. Having studied the imperfect science of blood/breath alcohol testing, Huey knows the machines can be challenged.

On his Web site (www.ohio-dui-defense.com) Huey urges drivers charged with DUI to mount a strong defense.

"When lawyers are arrested for DUI, what do they do?" he says. "They hire a lawyer to represent them. Why? Because they don't want to be convicted and because they know that an attorney focusing on DUI cases knows a heck of a lot more about it than they do."

Taking a DUI case seriously can save money in the long term, according to Andrews, co-chair of the DUI Committee of the Ohio Association of Criminal Defense Lawyers.

"The investment of $4,000 in a decent defense resulting in an acquittal or lowering of the charge can save a person nearly $15,000 if convicted when all of the costs are calculated -- not least of all insurance premiums rising 500 percent to 1,000 percent" he says. ©



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