Monthly Archives - November 2014

PAS Test vs. Chemical Breath Test

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Usually when I talk about a Breathalyzer test, it’s referring to either the roadside Preliminary Alcohol Screening (PAS) test or the chemical test that is administered at the police station. However, these are two completely different tests with different requirements and potentially different legal ramifications.

The PAS test is part of the roadside sobriety tool kit that officers carry around with them. As a field sobriety test kit, it can be easily used and gives a general idea of the blood alcohol content (BAC) of the person taking it. However, because it is not a fully accurate test (with results varying up to 15% from actual BAC), the court does not recognize the test for legal reasons. The truth is that one out of every four people tested will show a higher BAC than they actually have.

There are all kind of environmental factors that can influence the results of a PAS breathalyzer test, including:

  • Police radios
  • Dirt
  • Smoke
  • Cleaning products
  • Breath mints
  • Cell phones
  • Nail polish
  • Gasoline
  • Relative humidity

It is important to note that the PAS test, as with all field sobriety testing, is completely optional. Refusing to take the PAS will, however, result in your license being taken and a trip down to the local precinct for a mandatory chemical breath test.

Chemical testing can be broken down into the stationary breath analysis, a blood test, or a urine test. The stationary breath analysis works on the same principles as the field PAS test. The major difference is that the test is administered in the controlled environment of a police station. Many of the potential contaminants are removed in this test. Still, blood or vomit in the mouth or even irregular breathing patterns can influence the results of a Breathalyzer test.

The most accurate of all tests is the blood test. It is either taken at a hospital or at the police station. These are the least convenient and most expensive of all BAC tests and are usually only done at the request of an officer who feels the Breathalyzer is not accurate. Even these tests have potential for misrepresentation or even inaccuracy if they are not administered correctly. People who have diabetes or who have been taking cough medicine or herbal supplements can show higher than normal BAC levels. Also, if an alcohol swab is used to clean the area before a blood draw, the alcohol may be picked up on the sample.

A more common alternative to the blood test is the urine test. The biggest drawback to these tests is that they take much longer to process, so some jurisdictions would rather not use them. The test can be administered at the police station, at a clinic or hospital, or even at the subject’s own home. Tests must be verified off-site by an authorized lab.

The most important thing that you should know is that a PAS test is voluntary and the officer administering it is required by law to tell you so. If you are not advised of this, it is considered an illegal search. But if you do refuse the PAS, you could be setting yourself up for a longer license suspension, jail time, or even the installation of an ignition lock device if you are ultimately convicted.

By Ted Burgess


Which Is More Dangerous: DUI or Driving While Using a Cell Phone?

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With cell phones becoming ubiquitous in our lives, using them in the car has become commonplace. But is talking on the phone safer than drinking and driving? What about texting and driving? The numbers are in, and the clear winner is… not doing any of the above.

Drinking and driving and distracted driving among college students were found to have very similar results in testing done during a study done by Harvard University. During their tests of 40 participants, those who used a cell phone “drove slightly slower, were 9 percent slower to hit the brakes, displayed 24 percent more variation in following distance as their attention switched between driving and conversing, were 19 percent slower to resume normal speed after braking, and were more likely to crash.” In fact, three of the participants actually rear-ended the pace car during the experiment. None of the drivers were drunk during this phase; they were all simply talking on their cell phones.

In the same study, drunk drivers didn’t fare any better. These drivers “drove a bit more slowly than both undistracted drivers and drivers using cell phones, yet more aggressively. They followed the pace car more closely, were twice as likely to brake only four seconds before a collision would have occurred, and hit their brakes with 23 percent more force.” Interestingly, though, “Neither accident rates, nor reaction times to vehicles braking in front of the participant, nor recovery of lost speed following braking, differed significantly from undistracted drivers.” Participants had a blood alcohol level of more than 0.08 percent.

The results from the Utah study have been backed by several other studies on the same subject. In 2008, the National Highway Traffic Safety Administration (NHTSA) reported more than 5,000 fatalities and more than half a million injuries due to accidents caused by drivers who were distracted. This statistic includes distractions other than cell phones but shows that driving while distracted is dangerous and sometimes deadly.

The biggest distraction in the car today is texting, especially among young drivers. According to a study by Cohen Children’s Medical Center, more than 3,000 teens die annually in accidents directly related to texting while driving. And according to NHTSA, driving while texting is six times more dangerous than drunk driving.

An in-state study also revealed that in Texas, “texting drivers are 23 times more likely to be involved in a crash than non-texting driversThis information came directly from David Strickland, the administrator of the Texas Traffic Safety Conference.

To put all of this information in a real-world situation, the average time it takes to read and respond to a text message is about 4.6 seconds. If you are driving at 55 mph, your car would cover the length of a football field while you weren’t looking.

It doesn’t take a genius to see the dangers of texting and driving, yet we see it on the roads every day. When you get behind the wheel, put your phone in your pocket. There’s nothing so important that it can’t wait until you’ve gotten where you’re going to find out.

By Ted Burgess


Can Silence or Refusal in a DUI Case Be Used Against You?

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If you have been pulled over for suspicion of DUI, the absolute worst thing you can do is have a long, detailed conversation with the officer. One you’ve been pulled over, everything that the officer says to you has one goal: to build a case against you for a DUI. And although you do have the right to remain silent, there are certain laws that you have agreed to follow. These are implied consent laws that require you to submit to chemical testing if the officer feels it is warranted due to your physical ability to drive and/or any other suspicious behaviors that you exhibit during a stop.

Remaining silent may seem suspicious, but it is not grounds for a legal detention or chemical testing. The officer will try to get you into a conversation about what you were doing, where you are going, and anything else that they can to get you say. Don’t talk to them: You won’t be able to talk yourself out of a DUI, but you certainly can talk yourself into one.

The officer will couch everything that is voluntary as a question, like, “Can you turn off the engine please?” or “Would you mind if I had a look in your back seat?” Anything that is couched as a question is something you can legally refuse, and the officer cannot pursue it past asking the question again. The only things you should provide to an officer are your driver’s license, name and birth date, and your proof of insurance. Anything else can be answered with, “I would like to speak with a lawyer before answering any more questions.”

The officer may ask you to step out of the car for a field sobriety test. If you are over 21 years of age, you may refuse this test. It is a very subjective tool that is used to get enough information to warrant a trip back to the station to have a chemical blood test. Keep in mind that if you haven’t given the officer any reason to believe you have been drinking, there is little recourse for them but to let you go. An unwarranted DUI is very easy for a lawyer to defend in court, as anything that happens after the unwarranted detention is not admissible in a court of law.

If you have been detained, you must, by law, submit to a chemical blood test. Refusal to do so will get you a mandatory license suspension even if you haven’t had a single drop to drink. In addition, the police are able to forcibly take a chemical specimen from you, so they are going to get their evidence in either case.

Remember, silence cannot be used against you in a court of law. It is one of your fundamental constitutional rights. The only thing that you ever have to submit to is a chemical breath, blood, or urine test at the police station. You may refuse any roadside sobriety test without the fear of legal repercussions.

By Ted Burgess


12 things to Consider Prior to Entering Law School

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Becoming a lawyer is a huge commitment. It’s more than just a commitment of time; it’s a whole lifestyle change. And that’s only one of the considerations you need to make. There are some other things that you should consider quite seriously before making the choice to enter law school.

Job Market

You may think that just because you get a law degree you’ll have your choice of jobs. This is far from the case. In fact, law firms have been limiting the number of training contracts they hand out. You may find yourself in an area of the country where there are hundreds of lawyers and there’s no need for more.

Return on Investment

The job that you may get isn’t a get-rich-quick position. You could feasibly get a job paying $45,000 a year while dealing with your $100,000-plus in student loans. You may have to look outside of the legal arena and take a job in an area that values a law degree, like government or private corporate policy jobs.


Seriously look at the region in which you want to practice law and choose a law school that has connections there. This will require a lot of research, including calling lawyers in the area and asking where they went to school. Networking will be one of your biggest assets as a practicing lawyer.

Lots of Reading

Be prepared to read. It’s not like graduate school; it’s like 10 graduate schools all at once. You’ll have to read and then read some more. Expect to pull all-nighters at the law library and to read so much that your brain might literally shut down on you.

Organization Techniques

You will need breaks to keep your spirits up and keep your mind in tip-top shape. The better you organize your time and plan ahead, the easier it will be for you to succeed in law school. Learn some shortcuts on the readings as well; for instance, having an idea of case facts and principles and keeping those noted in bold may serve you well.

Advice Guru

All of a sudden, you will be the go-to person for all things legal. You’ll be saying no to a lot of friends and relatives, but you need to make sure they understand that you are still learning and that the intricacies of law require specialization, something you are not ready for as of yet.

School is Life

You won’t have time for a whole lot of social interaction. School will become the center and focus of every day of your life. You will be studying on the weekends, studying in the daytime, and studying at night. And when you aren’t studying, you’ll be doing tutoring sessions and seminars.

Trust Issues

Law school can be cutthroat. Not everyone there can be trusted to help you achieve your goals. There are plenty of other students who would be happy to see you fail to move up a spot on the graduating roster.

Law School is Intense

In addition to the backstabbing and drama that you can get from other law school attendees and the constant need to study and learn, you may think it couldn’t get any more intense, but it can. If you do well in class, especially a class graded on a curve, you may elicit some unsportsmanlike moves by other students. It’s best to fly under the radar whenever you can.

Books Are Expensive

If you thought that books were expensive as an undergraduate or even a graduate student, law school books are going to give you a heart attack. These are specialty books and can cost upward of $300 each.

Grading is Tough

Law isn’t like regular learning. The readings are very specific and dense. You’ll feel stupid when reading some of the cases and explanations. It will happen. And you may struggle to get a 60 or higher at first. Don’t worry, it’s common.

Social Stigma

Of course, you’ll also have to deal with the social stigma of selling your soul to the devil to make a buck or becoming the sounding board for all of your non-law friends. You’ll get all of the “cold-blooded” lawyer comments and more. It just comes with the territory.

If you still want to become a lawyer, it’s a great field. Just know what you’re getting into so you can prepare for the rigors of law school.

By Ted Burgess