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3 Big Problems With DUI Tests During COVID-19

Melinda Morris
By: Melinda Morris
Dec. 31 2020

COVID-19 has changed the world, but it has not changed what happens during a DUI stop in Florida.  If you are stopped for a DUI there are several aspects of the stop that deserve special attention during the pandemic.

DUI TEST PROBLEM #1 DURING COVID-19: 

Once you are pulled over the law enforcement officer will make personal contact with you.  The officer is attempting to make observations of your movements, speech, eyes, and odor on or about your person.  The classic observation is that the driver had, “slurred speech, bloodshot or watery eyes, and an odor of alcohol on or about his person.”  During COVID-19 these observations may be called into question.  For example, if an officer is observing social distancing protocol, how accurately can the eyes of the driver be seen?  As well, if the driver is reasonably wearing a mask when the officer approaches, how well can the officer really smell alcohol emanating from the driver?

DUI TEST PROBLEM #2 DURING COVID-19: 

After these initial observations, the officer may ask you to perform a set of Field Sobriety Exercises (FSTs).  Here the officer is looking for indications of impairment or clues of impairment to establish probable cause for a DUI arrest.

There are three standard Field Sobriety Tests:

  1. Horizontal Gaze Nystagmus (HGN) Test: The law enforcement officer requests the driver follow a stimulus, usually a pen or a light, horizontally with his or her eyes. The officer is observing from a close distance the driver’s eyes for an involuntary twitching of the eye.

  2. Walk-and-Turn Test: The walk-and-turn test is a common FST used to test the driver’s coordination and ability to follow instructions. The officer will request the driver to walk in a straight line, heel to toe, and count the steps.

  3. One-Leg Stand Test: During the one-leg stand the law enforcement officer will request the driver stand with both feet together, lift one leg approximately six inches off the ground, and keep both hands at his or her side while counting up to a prescribed number.

While the Walk-and-Turn and One-Leg Stand may be observed from a distance and comply with social distancing, the HGN test cannot be performed from a distance as it requires the close observation of the officer to see the driver’s eye movement.  It has not yet been tested in a Florida Court whether or not a driver may lawfully refuse the HGN portion of the Field Sobriety Tests due to concerns of COVID-19 exposure to the officer who would be face-to-face with the driver.

DUI TEST PROBLEM #3 DURING COVID-19: 

After the DUI arrest has been made, the law enforcement officer will ask the driver to submit to a Breath Test.  The breath test can be performed on the side of the road (using a handheld device not admissible as evidence), or more typically in a mobile breath testing vehicle or back at the police station or jail using the Intoxilyzer 8000.  In Florida the legal limit is a breath-alcohol level of 0.08.

The law enforcement officer instructs the driver to blow into a tube connected to the Intoxilyzer 8000 and the breath sample is captured into a chamber.  The Intoxilyzer 8000 then shines an infrared light through the sample to measure the breath-alcohol level.

While the tube has a disposable mouthpiece, it is unknown whether or not the chamber of the Intoxilyzer 8000 could contain pathogens from prior uses.   It has not yet been tested in a Florida Court whether or not the driver could lawfully refuse the breath test due to concerns over potential exposure to COVID-19.

Law enforcement and the State Attorney typically assume that a defendant’s refusal to perform Field Sobreity Tests or a Breath Test can be used against him or her in a criminal prosecution as “consciousness of guilt.”  Given the current COVID-19 pandemic and the potential health consequences to drivers of complying with these tests, that presumption may be challenged in Court.

If you have been arrested for Driving Under the Influence (DUI) in the Tampa Bay area including St. Petersburg, Tampa, Clearwater, Largo and the surrounding counties of Pinellas, Hillsborough, Pasco, Manatee or Sarasota, call the Morris Law Firm for a strategy session on your case.  Call 727-388-4736, Option #1 for New Clients.