Blood, Breath, and Tears: Challenging the Accuracy of DUI Testing Methods

4th September 2023

In many states, including North Dakota, field sobriety tests are responsible for helping law enforcement determine whether someone has been drinking. For example, some common types of field sobriety tests include:

• Horizontal Gaze Nystagmus Test
• One-Leg Stand Test
• Walk and Turn Test
• Finger to Nose Test
• The Romberg Balance Test

The above tests are considered the standardized field sobriety tests by the National Highway Traffic Safety Administration (NHTSA). However, there are many other non-standardized field sobriety tests that officers use. For example, these include backward counting, reciting the alphabet backward, and the finger dexterity test.

Field sobriety tests are used to ensure that safe driving is occurring, especially in high-risk areas. For example, near bars and nightclubs. A police officer will pull over a driver they suspect might be drinking and ask them to perform one or more of these tests.

Using the knowledge they’ve acquired from watching the driver complete the sobriety tests, they’ll decide on their next steps.

What is considered driving while intoxicated?

In North Dakota, it’s illegal to drive with a blood alcohol concentration (BAC) of 0.08% or higher. Driving with a BAC of 0.08% is legally called driving under the influence (DUI).

However, this only applies to those who are 21 and older. For those under the age of 21, DUI is driving with a BAC of 0.02% or more. North Dakota doesn’t follow the zero-tolerance policy because it often leads to an unlawful arrest.

Because breathalyzer only estimates BAC and doesn’t actually measure it, it is often off by a small percent. Additionally, some medicines and foods contain alcohol naturally, so arresting any young driver that has a BAC above zero would be a mistake.

When is a law enforcement stop legal?

There are a few different ways that police officers regulate drunk driving. One common way is through DUI Checkpoints. DUI Checkpoints are often stationed on busy roads that lead away from areas where people may be drinking, like bars and nightclubs. Additionally, they may be stationed on streets after concerts or a sports game.

Police cruisers will block the road and ask simple questions of each driver as they pass. Answering these questions will help the police officer determine if further testing needs to be done, such as a field sobriety test or a breathalyzer test.

To stop a driver, a police officer must have reasonable suspicion that the driver may be drunk. Examples of reasonable suspicion include:

• Straddling the centerline
• Illegally turning
• Drifting in and out of lanes
• Nearly hitting vehicles or objects
• Slow or too fast driving
• Frequent braking
• Stopping for no reason

Officers may also perform a field sobriety test if they pull someone over for another reason (like running a stoplight). For example, if they were to pull someone over for a broken tail light only to realize that their breath smells of alcohol, they would be able to ask them to participate in a field sobriety test.

Are North Dakota drivers required to take a field sobriety test?

North Dakota law does not require individuals who are pulled over to submit to field sobriety tests. Unlike with chemical and blood tests, there are no penalties for refusing to take field tests. Police officers, investigating officers, and the court are also not allowed to use your refusal of these tests to indicate guilt.

What are the consequences of failing a field sobriety test?

According to the NHTSA, if the driver fails three or more standardized field sobriety tests, they likely have a blood alcohol concentration of 0.1% or more, a level that’s illegal in all 50 states.

After failing a field sobriety test, you’ll likely be given a breathalyzer test. If the breathalyzer test comes back with a BAC of 0.08% or over (if above 21) or a BAC of 0.02% or over (if under 21), you’ll likely be arrested. You may be required to perform a blood test to confirm your breathalyzer test results.

The results of your BAC tests are what will be used against you in court. Field sobriety test results may also be used to show how impaired you actually were. For example, a driver stumbling around during their field sobriety test doesn’t look good. That, in combination with BAC test results, would likely lead to a conviction.

Are field sobriety tests accurate?

Field sobriety tests as a whole are not accurate. There are many disparities amongst the different tests, which is why they’re often used together. For example, the one-leg stand test is only 65% accurate. The walk and turn test is only 68% accurate. And the horizontal gaze nystagmus test is only 77% accurate.

Drivers may fail these tests because of:

• Inner ear problems
• Poor balance
• Speech impediments
• Injuries
• Obesity
• Mental impairments

What are the consequences of a DUI charge?

In North Dakota, the consequences of a DUI charge vary depending on whether or not you’ve been convicted before, as well as how high your BAC was.

After your first offense in seven years, you’ll have your license revoked for 91 days. On the second offense, it will be 365 days, and on the third, the revocation is doubled to two years. If your BAC were above 0.18%, these suspension periods would be much higher, 180 days, two years, and three years respectively.

Depending on how many convictions you’ve had and how high your BAC was, you’ll also face penalties such as imprisonment, fines, addiction evaluations, program participation, and more.

Should I hire a North Dakota DUI defense attorney?

If you’ve been arrested for driving under the influence, it’s in your best interest to hire a DUI defense attorney to help with your case. With field sobriety tests being untrustworthy and occasionally inaccurate, an experienced criminal defense attorney will be able to protect you from wrongful conviction.

For more information or a free case evaluation, please contact us online using our chat box option or by calling us at 701-609-1510.