Transcript of Episode 006 “Ask a Lawyer with Joey Franks” – What do I do if I’m asked to take a DUI Field Test?

What do I do if I’m asked to take a Field Test?

Attorney Franks: There are a few options. You don’t have to do the test in the field and you won’t get the charge. If you refuse the Intoxilyzer test at the station, then you get the charged with refusing.

I advise not doing the field exam because they’re structured for you to not pass and it’s confounding. I took one from a cop so I’d know what my clients experienced. I was sober and failed it. So again, don’t do the field exam. It won’t help you and about the only thing it does is give the police probable cause.

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The police told me to follow an object with my eyes. What was that?

Attorney Franks: They are looking at nystagmus to see if your eyes wiggle. With depressants, often times there’s involuntary eye movement. It could be booze is not involved, but it’s a depressant. Some cops will have you follow their finger, but typically that’s drug related and not alcohol. By the way, those cops have to go through training and be qualified for the horizontal gaze nystagmus test to be validated.

What happens if I refuse?

Attorney Franks: Most times the cop will have you stand at the front or rear of your car or have you stand by the police car. Normally a cop won’t offer once and then put you back in the police car. The cop needs to prove beyond a reasonable doubt and the field exam can be one of the processes. They carry the breathalyzers in their cars and they get jostled around with the spare tire in the trunk. That’s why there are no penalties if you refuse that test. But most likely they will take you to the jail and ask you to blow in the Intoxilyzer. If you refuse the big Intoxilyzer, then you can be charged with refusing a DUI test. If that happens, you can file a petition for refusing a breath test l hearing.

Can I refuse all the tests at jail?

Attorney Franks: Sure. But, then you get that refusing DUI test charge and an automatic 90-day suspension of your license. The Department of Public Safety mails a notice to the address on your driver’s license. (That’s important to note because folks move and don’t remember to change their license address.) Then you get 10 days to file the petition for the breath test hearing at your county or circuit court, which depends on the county. Then a judge will decide if a refusing a breath test happened. If the cop didn’t ask for it at the station, then it didn’t happen.

Can prescription drugs generate false positives?

Attorney Franks:  Yes. prescription drugs can show impairment in a field sobriety test but not the breath test. However, a urine or blood test can show the drug in your system and that’s especially true with the blood test, but probably not so much with the urine test. The blood test will simply show the prescription drug and won’t be an issue at all. Depending on the drug, they might see metabolites in your urine and they should look into it further. However, no doubt, there can be false positives with the field sobriety test. As a Jackson MS lawyer, I’ll make sure to study all of these sorts of things. You see, I do my best to be the best DUI attorney in Jackson MS.