What is The Most Failed Test?

Interviewer: What would you say is the test that everyone fails the most now?

Jerald Novak: I think they fail the common sense test. The common sense test is, “Here’s my license and insurance card. Sir, I don’t wish to answer any questions.”

Breath Machine Test and Its Problems

Interviewer: Well put, yeah. If a police officer asks to do a field sobriety test, and you do the field sobriety test, will there be any other test administered after that?

Jerald Novak: Often times, the police officer will carry a portable breath test machine or device. That is also something I would recommend people decline to participate in. People all the time, “If you haven’t been drinking and you’re not drunk, why wouldn’t you take the test?” Let’s start out with the fact that this is a device, it’s a mechanical device, and all mechanical devices are subject to fail. That’s just the nature of being a mechanical device.

Now, let’s also remember that the way this device works, we discussed it briefly at the beginning of this interview, that it measures the infrared light within your breath. It does that within a certain temperature range. Now, I don’t know about you, but right now, I’m here in the suburban Chicago area. We’re going through what we call Polar Vortex. It has been 20, 25, 30 degrees below zero for an extended period of time. I’m talking about last week. But we do get cold winters every year. Guess what? Where do think they keep that portable breath device?

Interviewer: In the trunk.

Jerald Novak: They keep it in the trunk. That machine is stone cold frozen. What happens is, when you blow in that machine, your core body temperature will be different while you’re sitting inside the police vehicle and when you’re outside in this polar vortex, horrible, brutal cold we’re experiencing. Again, we have cold winters every year and it would be the same application. Your core temperature is going to be different in a nice warm car where you’re breathing in and out warm air versus when you step outside and you’re breathing cold air.

The point I’m trying to get at is that your score in the field is going to be different … Your score if you’re sitting in your car is going to be different than your score out in the field, and your score in the police station will be different from both of the others that were out in the field. Now, let’s keep also in mind that this machine is supposed to be certified as accurate and these machines are not often tested for accuracy.

Then, finally, let’s talk about something called residual mouth alcohol. Now, what is residual mouth alcohol? Residual mouth alcohol means that when you consume any amount of alcohol, the lining of your mouth is different than the rest of the skin on your whole body. If you look at the skin on your hand, or the skin on your face, or the skin on your knee, or your leg, or your stomach, that skin is rather water repellant, but if you look at the skin on the interior of your mouth, that is water absorbent. When you consume alcohol, the alcohol actually absorbs into the lining of your mouth.

Here’s an interesting experiment. Go and take some mouthwash, swish it around in your mouth, and spit it out. Then, go take a breath test. Guess what? You’re going to be far and away over the legal limit. You wouldn’t have consumed a single drop of beverage alcohol.

Interviewer: Kind of like garlic?

Jerald Novak: Kind of like garlic, yes. They have to wait at least 20 minutes to let residual mouth alcohol evaporate before they can give you a test that has any possibility of being anywhere near accurate. Let’s remember, you got pulled over. They did a couple of tests. It’s usually between four or five minutes, and they’ve got that portable breath test right up in your face. They’re going to get a false positive. You’re going to go to the station. You’re going to be afraid. You’re going to decline the breath test when you get to the station. Now, we really don’t know. Not that I would suggest, you take a breath test in any case because there’s lots of things that can interfere with the accuracy of the breath instrument at the station.

Case History: Success in Defending Field Sobriety Test Failure

Interviewer: What are your favorite stories or cases in regards to field sobriety tests, maybe like victories you want to go through?

Jerald Novak: Sure. I recently represented a fellow. He’s on the Illinois toll way and he’s coming up to the toll area where you pay your toll, and he didn’t have one of the I-pass devices. He’s going through the manual one. He came into the main one just a little bit too fast. When he got up in there, the front of his car made contact with the rear of the car in front of him.

He gets out of the car, and the other driver gets out of his car, and he checked briefly, and they let the toll way toll taker know that there was a little collision. He called the state police. The state police arrived on the scene. The first thing they say to him is, “Have you had anything to drink?” He said, “I had a beer with dinner.” Of course, they go, “Okay, great. We want you to get out of the car.” My client had gone back to his car and had waited for the police. He got out of the car, and takes some test.

My client said, “Sure, I’ll take some tests.” The problem, he gets out of the car and as my client gets out of the car and starts to walk over to the area that the trooper … By the way, the microphone magically went dead at that moment. He gets out of the car to go over to the area where the trooper wanted to administer the test, and on his way, he stops, bent over at the waist, and picks up three dimes that other motorists had dropped on their way to the toll booth.

The beautiful thing about that is when you drink alcohol or any beverage, the first thing that it affects is your fine motor skills. Picking up those dimes would have been very, very difficult for someone who is impaired. It’s interesting though because the police officer gave him every test except for the Pick up the Coin Test.

When we got the police officer on the stand, I asked him if it was true that when someone consumes alcohol, the first thing that they lose is fine finger dexterity. He says, “Yes, it is true.” Then, I asked him, “Isn’t it also true that when my client exited his vehicle, the first thing he did was bending over and pick up three dimes. Isn’t that true?” He goes, “Yes, it is.” I said, “He didn’t fall. He didn’t have any difficulty. Was there any problem with any of that?” He said, “No, there wasn’t.” I said, “I noticed, Trooper, there was one test that you didn’t give him, and that was the Pick up a Coin Test.” He says, “Yes, that’s true.”

I said, “We all know why you didn’t give him the Pick up a Coin Test. Don’t we, Officer?” He said, “Well, I just didn’t think that test was necessary.” I said, “That’s right. The one test that he did perfectly right that we can all see if you had moved my client way off in the distance to take this test so we couldn’t see how well or poorly he did on the other test? The one test that we could see, you decided not to administer to him.” That also turned out to be a not guilty.

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