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Frequently Asked Questions

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I met with another person recently who felt that they “passed” their field sobriety tests. Stated shortly, you can’t really tell if you “passed” them.

There are two basic purposes for field sobriety tests:

  1. To develop probable cause to arrest you.
  2. To use as evidence of DUII even if you turn out to be under .08 BAC.

It’s probably sometimes true that the officer is screening you to determine if he is going to proceed or not. In the majority of cases, however, the officer will admit that he was going to arrest you before he even asked you to do these tests. That is, he’s asking you because he thinks you are drunk.

That as it turns out, is the biggest fault with the field sobriety tests. They rely almost entirely upon the objective findings of that same officer. So, take the HGN, the moving pen test. What he’s doing is making your eyes go to their extreme right and left position. He’s looking for 3 “clues” in each eye.

One of them is whether your eyes have nystagmus, ie twitching, at “maximum deviation.” There is no scientific standard for the level of twitching. The officer just checks off “nystagmus present” or absent based on his opinion. Remember, that’s the same guy that already has concluded that you are drunk. When you blow a .05, that opinion of twitching is going to be important evidence against you at your DUII trial.

So why take the field sobriety tests at all? The theory is that you can convince the officer that you are not drunk and he’ll turn you loose. There is also a mistaken belief that something happens to your license if you don’t. That’s not the case. Something happens to your license if you refuse to give the breathalyzer test (or a urine test under certain circumstances), not the field sobriety tests.

The penalty for not taking the field sobriety tests is that the DA can argue at your trial that you didn’t take them because you knew you were drunk. In response, you can argue the other good reasons why you didn’t. In my experience, failing them is much worse than refusing them.

I frequently get calls from parents who have discovered that their children are using illegal drugs. They have attempted to give the child access to treatment but the child refuses to participate or participate meaningfully. At the end of their rope, they are tempted to turn the child in to the police hoping that the child will be scared straight.

My experience is that the criminal justice system has just enough money to cause problems for a person but not enough to actually help them solve anything. The arrested person ends up with a felony conviction, a “case bank” probation, and the “drug package.” In other words “Go get treatment or we’ll put you back in jail.”

I look at treatment like giving a homeless person a hammer, boards, and nails. If the person is very motivated and fairly ingenious, they can probably build a shelter. Most people, however, are not that motivated.

Don’t confuse addiction treatment with medical treatment. If you have, say, a tumor, medical treatment will hopefully remove the tumor. You have to participate, but the doctors do the heavy lifting. Addiction treatment gives the person the tools to be sober, if they want to. If they don’t want to, they won’t be. No amount of forced treatment is going to make that happen.

A few counties have taken a more enlightened approach to criminal prosecution. For instance, STOP in Multnomah County will dismiss your possession case if you attend treatment and pass UA’s for a year. They have a high success rate. Again, though, it requires that the person cares that they are looking at a felony conviction, has some self-motivation, and has a legitimate desire to change. Those that don’t end up with the felony conviction and a short jail sentence.

Also, I should point out that jail is preferable to the alternative if that alternative is some sort of serious injury or death. Know, however, that even if the situation is that desperate, the jail can’t and won’t hold them very long and the issue will reassert itself in short order.

Finally, I recommend Al-Anon and Nar-Anon to parents who are looking for a community of like situated parents who support and encourage each other in seeking sobriety for their loved ones.

I get this question a couple of times a month. I get why people ask this, I really do. They are busy professionals with kids and mortgages. No one wants to take an unpaid day to do a bunch of sitting around.

The easy answer is that you have to because the law says you do. The real answer is much more complex than that.

First, recognize that the law doesn’t really do anything to you if you elect to just not respond. If a jury pool of 100 is needed, Multnomah County will send out 1000 summons! That’s right. Nine out ten people just don’t respond to the summons and nothing happens to them. Granted, a good portion may be because of bad addresses, deaths, moving, etc. but that still leaves a lot of people that just blew it off.

So, okay. Good for you. You are in a minority who at least takes the summons seriously. Let’s take it to the next level. Do you vote? If you do, it’s because you care about the way your county, state, city, school district, or country is being run. The effect of that one vote? Practically nothing. If you personally had not voted, the result would have been the same. That never differs. Your vote always mathematically means nothing.

Now think about jury duty. Did you think it was outrageous when somebody got millions from McDonalds for spilling hot coffee? Do you think it’s ridiculous that people are being charged with DUII in this state when they are two points below the legal limit? Do you think medical insurance rates are too high? Do you think that big corporations should be held accountable when they know in advance that a certain number of people are going to die because of their product? In short, do you have any opinion about justice or social issues at all?

If you do, jury duty is your most direct route to having your opinion matter. Your vote makes a difference. It has a direct impact on the way things are done. Truly a juror makes more impact on his/her community in one day than he/she will in a lifetime of voting. Now take it the final step. You’re smart, well educated, socially conscious.

In short, you’re clever enough to get out of jury duty if you want. Most people want to. Therefore, juries are over-represented with people who had nothing else to do or were not clever enough to get out of it. Is that who you want deciding the way things are done in your community? Is that who you want making policy decisions?

Fortunately, there are still some people who don’t equate “duty” with “legal obligation.” They recognize that to have a just society, they have to be an active participant. Be one of those people. It’s just a couple days out of your life. Yeah you spend a lot of time waiting. Bring a lap top, get some work done. Your community needs you.