When an officer pulls someone over, the first thing that they are going to ask for is license and insurance. That’s actually the beginning of the evaluation by the officer of whether or not this individual is intoxicated. They’re looking for how the person complies with that first request. It’s considered a divided attention test—giving you two things to do at once. They’re going to see if you pull out the requested items immediately and hand them to the officer. They’ll be looking to see if you overlook them or fumble with them, etc. If you don’t do those things, then that’s evidence that you are not intoxicated. However, if you get confused, you can’t find something, or you hand the officer the wrong thing, then that’s evidence of intoxication.
If you exhibit behavior that would make the officer believe you’re intoxicated, then the officer will continue to ask you questions designed to test your level of intoxication. Next, the officer will check to see if you have any outstanding warrants. If the officer smells alcohol, he’ll probably ask, “Have you had anything to drink?” Most people say “Yes”, if they have been drinking. Most people believe that you might as well admit to having drank something. The vast majority of people say it was only two drinks, maybe three. Very few people say that they had more than that.
At this point, the officer is most likely going to attempt to administer the standardized field sobriety tests (SFSTs), which are the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. Any other tests are not part of the SFSTs.
There are certain procedures that should be followed with each test, and hopefully there is a dash cam or body cam video of what goes on so that I can later evaluate whether the test was properly conducted. Sometimes these officers may not have been trained properly or have not have had any refresher training in years. They may not know the current ways these tests should be administered.
Before these tests begin, the officer needs to ask whether you have any medical conditions which might make it so you can’t perform the tests. If you have a big cast on your leg, then you’re not going to be able to perform the walk and turn test or the one-leg stand test.
The portable breath test is not used very much in Oklahoma due to the way the laws are written. If it is used, then the officer will ask if you consent to it or not. If you refuse, that is not considered a refusal of a chemical test. But, if it is administered, then the level of intoxication that the device tells the police officer can only be used as probable cause to determine whether or not you were actually intoxicated. It can’t be used in court to show level of intoxication. For example, if the case were to go to trial, then it could only be used to say something like, “The read out from this machine was such that it gave me probable cause to believe this person was intoxicated.”
Once the officer determines that there is enough evidence to believe that you’re intoxicated, you’ll be placed under arrest and then taken to the police station. At that point, you’ll then be asked if you will submit to a breath or blood test.
As an implied consent state, Oklahoma law states you have consented to a chemical test and you will be asked to do either a blood or a breath test. The vast majority of time, they initially ask just for a breath test. If you refuse that test, they don’t typically ask for a blood test. However, if it is believed that you are intoxicated by drugs and not alcohol, oftentimes evidenced where someone submits to a breath test and blows a very low level of alcohol, then they will ask for a blood test. If you refuse that blood test, then that’s considered a refusal. The bottom line is that they don’t have to ask you for both. If you say, “No, I am not going to do the breath test but I’ll do the blood test”, it doesn’t matter. At that point, you’ve refused. That’s all they need.
Like the field sobriety tests, there are many procedures that need to be followed when doing a breath test as well. Therefore, there are many points at which mistakes can happen. That’s where I come in and look at the video of the breath test room and try to piece together or examine what the police officer did and whether or not they followed those rules.
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