The DUI Field Sobriety Test, and all the associated Fourth Amendment violations that come with it, is motivated by the notion that if law enforcement arrests a high enough percentage of the actual people driving under the influence, it will have a deterrent effect on those who were not arrested.
As such, every State in the Union now has some form of “Implied Consent” law driver’s must agree to in order to be issued a driver’s license by their State’s Department of Driver Services. This implied consent law mandates that drivers must consent to a test of their breath, urine or blood upon request by a law enforcement officer. If a driver refuses, this is grounds for a 1 year suspension of the driver’s driving privileges.
In addition to suspension of driving privileges, two Georgia counties (Gwinnett & Douglas) have now begun engaging in the sinister practice of using physical force to extract blood from uncooperative drivers. This is a practice that should not be tolerated in a so-called “free society”. Arrestees are taken to the county jail, strapped to a table and are held down by multiple deputies while a technician extracts blood from the arrestees arm. The blood is then tested for alcohol in order to garner physical evidence of the arrestees’ guilt.
In defense of this practice, law enforcement will refer to the necessity of deterrence described above and will, undoubtedly, use the code word “safety” which they use to justify every erosion of our liberty. Of course the question should be, “Why do you need to take his blood if he’s already under arrest?”
If the person is already in jail, that means he/she must have already “failed” the Field Sobriety Test to a degree that the arresting officer believes establishes probable cause. So what’s the need for forcing someone to give blood against their will?
You see, “pro se” DUI law is when a person’s blood alcohol level is .08 or above. That does not mean the driver is actually “dangerous” or what the law describes as “less safe DUI”. It means that the law has arbitrarily set .08 as the limit. The best way to observe this blood alcohol level, roadside, is with the horizontal gaze & nystagmus test (HGN). That’s the test where the officer waves his pen or a finger in front of the driver’s face for a few minutes. The moving of the eyes, that the officer observes, is believed to be “involuntary” and, no matter how accustomed the driver is to drinking, if the person is .08 or higher, the eyes should reveal it. Therefore, even if a driver performs really well on the One-Leg-Stand and/or the Walk-and-Turn, the officer has made up his/her mind to arrest the driver after the HGN test.
It should be noted that the involuntary jerking of the eyes is VERY hard to observe and observing the correct blood alcohol level of the driver is observing a matter of degree of the involuntary motion of the eyes.
More importantly, the dash-cam, on most patrol cars, doesn’t necessarily have video evidence of the driver’s “impairment” because the driver simply isn’t impaired. Their HGN test (as interpreted by the officer) suggests they have a blood alcohol level of.08 or higher, but this observation doesn’t show up on camera. So, the officer needs physical proof via blood serum.
So, what we have is an eye exam which is subject to interpretation being used to justify throwing driver’s in jail… an officer who knows full well that the eye exam alone may not be enough to convict the driver in front of a jury (or just not wanting to spend the time justifying his/her decision to arrest in front of a jury) and Magistrate Judges who often consider themselves “on the same team” as the police who are a