• What is the difference between DPS License Hearing and Criminal Case?
• What indicators of drunk driving are the police looking for?
• What should I say if I am stopped and asked if I have been drinking?
• What should I do if asked to take Field Sobriety Tests?
• Are Field Sobriety Tests very accurate?
• Can anything affect my performance on the Field Sobriety Tests?
• How is the Breath Testing Done?
• How Accurate is the Breath Test?

What is the difference between DPS License Hearing and Criminal Case?
With any DUI charge, there are actually two separate cases. The first matter is the criminal case against your liberty which carries fines and possible jail time. (See Penalties for more information). In this case, the government must prove each element of the crime beyond a reasonable doubt to a judge or jury. If they cannot do so, then you would be found not guilty in the criminal matter.

The second matter is a civil action against your driving privileges. These two matters are completely separate and do not affect each other with only one exception to be explained. The issue at DPS is whether the test was completed according to the Oklahoma Board of Tests rules and regulations or if your refusal was valid under the same rules. If the BOT rules were not adhered to, the revocation would be set aside and your license returned.

It is possible to get a DUI dismissed or be found not guilty of DUI and still lose your license. However, the one exception of where the two separate matters affect each other is where the license revocation is set aside and you got your license back but you are convicted of DUI, DPS will suspend your license based on the DUI conviction. There is only one license suspension per DUI arrest, but the government gets two chances to take your license.

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Q. What indicators of drunk driving are the police looking for?
A. The National Highway and Traffic Administration lists the following signs that a driver may be under the influence of alcohol.

Turning with wide radius
Straddling center of lane marker
Almost striking object or vehicle
Weaving
Swerving
Speed slower than 10 m.p.h. below limit
Stopping in lane for no apparent reason or inappropriately
Following too closely
Drifting
Tires on center or lane marker
Braking erratically
Slow response to traffic signals
Signaling inconsistent with actions
Turning abruptly or illegally
Accelerating or decelerating rapidly
Headlights off at night
Appearance of intoxication
Eye fixation
Slouching in seat
Gesturing erratically or obscenely
Face too close to windshield
Drinking in car
Drivers head protruding from the window
Tightly gripping the steering wheel
Interestingly, other than driving too slow, speed is not an indication that someone is under the influence. Driving too fast can be argued to be an indication that the driver is not intoxicated as it takes quicker reactions to handle a vehicle driving in excess of the speed limit.

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Q. What should I say if I am stopped and asked if I have been drinking?
A. Be polite and courteous. Do not admit any guilt or apologize for anything. This is not the time to try and talk yourself out of the situation as you are nervous and may possibly say something incriminating or something that will be taken out of context by the officer. If you slip, telling the officer that you have had one or two drinks is not necessarily incriminating as it will explain the odor of alcohol. If you only had one or two drinks, tell the officer the time of your first drink and the time of the second drink. This confident, truthful answer would certainly let the officer know that you have not had enough alcohol to be intoxicated.

The number of drinks consumed is not as important as the number of drinks consumed within a certain time frame. Most officers have been trained that the average adult male will absorb approximately one drink per hour and eliminate approximately one drink per hour. Therefore stating that you have had 4 beers sounds more incriminating than stating that you have had four beers over four hours. Interestingly, most officers do not ask over what time frame the alcohol was consumed even though they know this is an important detail to factor in.

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Q. What should I do if asked to take Field Sobriety Tests?
A. There is no legal requirement to take any field sobriety tests and as such, you should never take them as these are subjective tests that are only 65%-77% accurate being given to you by someone that thinks you are intoxicated. However, the best way to refuse is to ask the officer "Am I required to take these tests?". The honest answer is no. Any other answer could leave the jury with the impression the officer is deceptive. Then ask the officer "Are these tests 100% accurate?". Once again, the answer is NO. At this point tell the officer that you would like to talk to an attorney before deciding what to do. There is a huge difference between refusing to take the tests and asking to talk to an attorney before making your decision. For more information, go to our FIELD SOBRIETY TEST page.

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Q. Are Field Sobriety Tests very accurate?
A. If performed in a controlled environment by a skilled officer who administers the tests in the proscribed manner, the tests can be an indication of intoxication. However, this is rarely done.

The initial research conducted by the National Highway traffic Administration concluded the pen test (Horizontal Gaze Nystagmus) is 77% accurate, the Walk and Turn test is 68% accurate, and the One Leg Stand test is 65% accurate only when administered in the prescribed, standardized manner. Any deviation from the standardized manner will compromise the tests' validity.

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Q. Can anything affect my performance on the Field Sobriety Tests?
A. The National Highway Traffic Safety Administration has admitted that SOBER persons can have difficulty with these tests! One's ability to perform the Field Sobriety Tests can be affected by many factors other than alcohol, including;

Nervousness
Scared
Fatigued
Illness
traffic
Wind
Dust in eyes
Headlights
Strobe lights from police car
Weather conditions
Physical problems
Inner ear disorders
Road or sidewalk conditions
Age
Weight
Footwear
Lack of coordination

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Q. How is the Breath Testing Done?
A. The State of Oklahoma uses a machine called the Intoxilyzer 5000, which is commonly referred to as the "breathalyzer" or "Intoxilyzer." The Intoxilyzer 5000 (I call it the Intoxicator or Intoxiliar because of its inaccuracies) costs about $7,500 and can last as long as 10 years. It works on the theory of Infrared Spectrosphopy, which is the absorption of infrared light. Different compounds will absorb different frequencies (wavelengths) of light. The machine has a light bulb positioned at one end of a cylinder. There are filter wheels in the cylinder and on the other side of the filter wheels is a light receiver. Alcohol is supposed to absorb certain wavelengths of light and the machine is supposed to only detect wavelengths of light absorbed by alcohol.

The machine shines a light through the cylinder and the filter wheels will be turning. The filter wheels are designed to filter out potential contaminants. The breath sample enters the cylinder and passes through the filter wheel. The amount of light received at the other end of the cylinder is then recorded. The difference in the starting and ending amounts of light is the result. Interesting enough, the amount of light that is absorbed is not alcohol specific!

The amount of the breath sample and any reading of alcohol are very minute. The machine must make a multiplication conversion to an amount great enough for us to understand. The difference in light emitted and received is computed through a computer program in the machine to come up a value that can be compared to a .08. The conversion the machine makes on the differences in light would be the equivalent of taking the paper towel tube and increasing its size to that of a 55 gallon drum! Any error would then be exaggerated by that amount.

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Q. How Accurate is the Breath Test?
A. There is much debate on the intoxicator, I mean the intoxiliar, I mean the intoxilyzer. Proponents of it state that the machine will only read light absorbed by alcohol, while opponents state the machine often misreads other commonly found substances in the breath as alcohol, thus giving an inaccurate high reading.

1. Neither DPS (Department of Public Safety) nor the manufacturer of the machine will allow anyone other than law enforcement to test the machine for its accuracy and reliability. It is generally understood that for a procedure to be accepted as accurate and reliable in science, it must be open and available for the scientific community to test and retest the procedure. This is not permitted with the intoxilyzer. What are they trying to hide?

The manufacturer does not warrant the intoxilyzer for any particular purpose. The machine is not warranted for accurate and reliable breath testing. Would you buy a car without a warranty?

The intoxilyzer is capable of preserving breath samples, but DPS purposefully fails to preserve these samples. The cost of preserving breath samples would be less than $2.00, and would allow a person the opportunity to have their breath sample checked for accuracy. If found to be inaccurate, it could prevent an innocent person from being unjustly convicted. Further, re-testing of the breath sample could be done by a process know as gas chromatography, which is considered to be a more accurate and reliable method of testing breath samples for alcohol than the intoxilyzer. Why do they not preserve samples when your Freedom is on the line?

The intoxilyzer also assumes that everyone tested will have a blood/breath ration of 2100/1 (i.e. 2100 parts of alcohol in the blood for every 1 part of alcohol in the breath). If a person has a higher blood/breath ratio (i.e. 2400/1) the test will not be adversely affected by this assumption. However a person with a lower blood/breath ratio will be adversely affected because the intoxilyzer will erroneously read too high, thus a person who should test at .05 or .06 could actually test well above a .10 (i.e. the intoxicator or the intoxiliar). Additionally, scientists have documented people with blood/breath ratios as low as 1100/1. Do you want to take the risk the intoxilyzer may falsely hurt you which could result in a conviction that will be on your record forever and could cost you your freedom? A person with a fever will have a higher breath test reading than an identical person without a fever. Therefore, the temperature of your body can affect what the intoxilyzer reads, and your body temperature has nothing to do with the amount of alcohol you may have or have not consumed.

The experts continue to testify that the intoxilyzer was "functioning properly and capable of giving accurate results." This sounds good, but what do they mean by capable? (If I buy a ticket, I too am capable of winning the lottery...) The bottom line is that the intoxicator/intoxiliar/intoxilyzer is fast and cheap. Further, if a person passes a breath test, some police agencies will release the individual arrested and not file any charges. It is much easier to do this than file a DUI, request a blood test, and later have to explain why they arrested a person whose blood test came back under the legal limit. This is not an all-inclusive list, but it is obvious that there are many problems with the machine.

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