Former NFL Quarterback and University of Miami great Bernie Kosar was arrested for DWI in Ohio on Sunday. According to the Associated Press, he refused a breath test. This may be the smartest call he's made since he took a one year one million dollar deal to back up an injury prone Troy Aikman in Dallas twenty years ago where he won his only Superbowl ring.
As noted in the article, Kosar suffered a number of injuries over the years which probably do not make him a good candidate for the so-called "standardized field sobriety tests." Even if one accepts these tests as valid means of measuring what they're supposed to measure, they may never have been appropriate for this suspect. There are only three standardized field sobriety tests and all three have huge caveats that anyone trained and certified in their use may have noted rendered Kosar an inappropriate candidate for their administration.
The testing manuals for both the one leg stand and walk and turn test state, "the original research indicated that individuals over 65 years of age, back, leg, or inner ear problems had difficulty performing this test." Research that has also been acknowledged by and published by the same government agency recognizes that history of head injuries may be a cause of nystagmus. As the publisher of the manuals, the National Highway Safety Transportation Administration ("NHTSA")
notes on it's web site, an officer should inquire whether a subject has any other injuries that could affect the results and that there are many other causes of nystagmus including a pathological type caused by brain damage. Bernie Kosar's statements to officers touched on all of these.
Moreover, these same manuals do not list speeding as a driving clue of intoxication among the approximate two dozen they do describe and the alphabet recitation exercise is nowhere to be found in the SFST manuals.
Police routinely admit under oath that someone either has alcohol on their breath or they don't. It doesn't tell you where they drank, what they drank, or how much. And regardless of what you hear, it's not illegal for someone of age to drink and drive so long as one is not intoxicated. And it is not a crime in most states to refuse a breath test.
As this blog has written about before, several times, breath and blood tests are often inaccurate. Many jurisdictions are still using machines that operate on the same chip and technology as the Atari 2600 game console. These machines only measure radio frequency interference in their operation at frequencies well below those used by all of the cell phones and mobile devices used by almost every police officer and suspect in the station. And in Texas. people who blow may be punished more harshly and expensively than people who don't.
There may be thousands of reasons not to blow that have nothing to do with actual guilt. But the number one reason that the author of this blog hears from clients is, "they weren't treating me fairly so I didn't trust them." The second is that "I've heard those things aren't accurate." Bernie Kosar may have felt the same way. And really, if you don't have to blow into a machine you don't know anything about operated by people you don't trust - why would you?