Southern Maine Criminal Lawyer Blog
By: Attorney Vincent S. LoConte
What is the question?
Often in a traffic stop when an officer suspects impairment, they will ask the question “on a scale of 1 to 10, 1 being sober and 10 being pass out drunk, how would you rate yourself”. Seems like a straight forward question, but is it really fair, and is there a right and wrong answer?
Is it a trick question?
It is important to note that officers have never been formally trained to ask this question. Road side stops and field sobriety tests were once different between every officer and ranged between things like saying the alphabet backwards to trying to pick change off the ground to test balance and dexterity. The problem was there was no uniformity between any officers as to how to judge these tests or how to even give them. This inconstancy would often lead to unreliable results. That is when the National Highway Traffic Safety Association realized that standardization was the key to accurate results.
Today, all officers are trained to give the exact same three tests and are even trained to give the instructions the exact same way, word for word. Every clue they are trained to look for are also universal across every single officer nation wide. These tests are Horizontal Gaze Nystagmus or the eye test (HGN), Walk and Turn, and One Leg Stand.
Most officers still will do additional test
s on road side stops to help in their investigation and can be helpful for people with older age or general issues standing or walking. Some of these tests include things like counting backwards, saying the alphabet from one letter to another, and the dreaded question of 1 to 10. Obviously, because these tests are not standardized and given the same way between every officer, they are less reliable. However, at least with tests like counting from 65 to 49 out loud, there is a right answer and a wrong answer.
What is the right answer?
When given the question of on a scale from 1 to 10, how impaired do you feel, what is the right answer? There absolutely is not a right answer because it is a trick question. If an officer gives more specific instructions, then the test becomes more fair, but is still is a trick question. How about if it was phrased like this: “on a scale of 1 to 10, 1 being stone cold sober, and 10 being the most drunk you have ever been”. There are still problems with the question. The most drunk you have ever been changes for every person so the answer given is totally subjective and impossible to use fairly in an investigation. How about like this: “On a scale of 1 to 10, 1 being stone cold sober and 10 being black out drunk”. Again, there are issues. Why is there no option for 0? Also, what exactly does being a 3 out of 10 mean? Is that impaired? Or does feeling impairment come around a 6? Or is 6 actually the start of being drunk and anything above a 1 is impaired in some way? What if you have never been black out drunk and don’t know how to judge the answer? It is an absolute mess.
So if there is no right answer, then what should you say when asked this question? Well it would probably make sense to ask the officer to explain each and every number and what each number really means. But this will only make the process more complicated and upset the officer. So the best thing to say, is the lowest possible option of either 0 or 1. What ever the example of what “stone cold sober” is, should be the answer.
In reality, this question should not be given in a proper investigation. Sadly though, its not going away anytime soon. It is also important to note that trying to be cooperative and giving just a low answer that isn’t 1 or 0 is not helpful either. Always be smart and just give the lowest possible option.
What should I do?
Never drink and drive or give law enforcement a reason to stop you in your motor vehicle. BUT, if you are accused by the police in Maine of OUI/DUI/DWI, “Operating Under the Influence of Alcohol or Drugs”, possession of a controlled drug or any alleged motor vehicle or criminal offense, feel free to call the Webb Law Firm today at 207-283-6400 and arrange a free consultation to discuss your case. Please contact us today. We provide a free initial consultation to go over your case with you.