How Aging Might Increase the Odds of DUI

Categories: Criminal Defense

Detained by police due to DUI.

According to the CDC, the number of licensed drivers who are age 65 and above have increased by 63% from 1999 to almost 44 million in 2017. With the Baby Boomer generation entering their golden years, they are not slowing down. Older Americans are enjoying their independence now more than ever before, and getting behind the wheels of their cars and continuing to drive is one of the many factors that enable them to do just that.

However, this increase in elderly driving appears to have also resulted in more automobile fatalities and accidents than ever before. In 2017, over 257,000 elderly drivers were treated in hospitals, and 7,700 were killed as a result of automobile crashes. This amounts to almost 20 deaths and 700 injuries per day for older Americans. While younger adults in the 18 to 25 range continue to cause the largest share of automobile accidents, they don’t tend to die as a result of those crashes at the same rate as adults 65 and older. Therefore, it is important for elderly drivers to make sure that they are physically and mentally capable of driving, especially when it comes to driving while under the influence of alcohol or drugs.

Field Sobriety Test and the Older Adult

When a driver is stopped for a suspected DUI, it is often due to erratic driving patterns that have been observed by an officer or by a concerned citizen who calls the police after witnessing an erratic driver. As people age, our reflexes tend to diminish, and what can look like an alcohol-induced swerve pattern of driving can actually be an older driver who is having a difficult time seeing at night, etc. However, the police don’t really care. If they see someone driving in a questionable manner, they will likely pull them over and ask questions later.

If they suspect that you are impaired, part of their “questioning” will likely consist of what is called The Standardized Field Sobriety Test (SFST). This is a series of three tests that are administered by the officer, usually on the side of the road prior to any arrest being made. The idea is that these tests will help the officer determine if a driver is operating their motor vehicle while impaired. However, the accuracy of these tests is questionable, particularly when the driver is advancing in years. Let’s look at these tests in more detail.

The Horizontal Gaze Nystagmus (HGN) Test

Horizontal gaze nystagmus is an involuntary jerking of the eye that occurs when the subject looks to the side at high peripheral angles. If the driver is impaired by alcohol, this involuntary jerking occurs at lesser angles – in other words, it occurs sooner than in non-intoxicated people. However, medications such as seizure medications, barbiturates, depressants, phencyclidine, or a variety of inhalants could produce the same jerking reaction of your eye at lesser angles. This means that you could be on one of these drugs for medical reasons, none of which impair your ability to drive, but would indicate to the officer that you were intoxicated or otherwise impaired.

The Walk and Turn

In this test, the driver is required to walk heel-to-toe in a straight line for nine steps, turn on one foot, then return by taking another nine steps using the same heel-to-toe technique.

This walk and turn test is not based on how people naturally move, so it can be tricky even if you are young and have a good balance. Unfortunately, our balance and coordination tend to decrease as we age. So when your balance isn’t that great anymore, this test can be particularly difficult to execute well, even if you have not had a drop of alcohol.

The One Leg Stand

In this exercise, the officer asks the driver to stand on one foot while holding the other foot steady at six inches off the ground. While performing this balancing act, the driver is instructed to count by ones from one thousand (one thousand one, one thousand two, etc.). The officer times the driver for 30 seconds and looks for indicators like swaying, hopping to maintain balance, or placing the raised foot back on the ground before the 30 second testing period is over. Again, due to the deterioration of balance and coordination as we age, this task could be a great challenge for anyone in their later years – even if the driver was not impaired in any way.

As you can see, there is a danger that the diminished physical abilities of a senior driver could be interpreted by an officer as a sign of impairment and result in an unwarranted arrest. To make matters even more complicated, there are a number of medications taken by seniors that could have the same unfortunate result.


As we age, we often lean on medications to alleviate or treat any number of aches, pains, and ailments that tend to creep on us. While those medications are helpful in many ways, some may also impair our ability to drive an automobile.

If you are on medication, check with your doctor before drinking any alcohol. It’s important that you know if any of your medications require you to abstain from liquor, particularly when you will be driving. If you are on any medications that cause drowsiness, for example, this can be greatly exacerbated by consuming even small amounts of alcohol and ultimately get you thrown in jail and charged with a DUI. So do your homework, get the green light from your doctor, or accept that drinking even small amounts and driving may not be in the cards for you as long as you are on certain medications.

Have You Been Arrested for Driving Under the Influence?

If you have been arrested for DUI in Colorado, it is important that you speak with an attorney as soon as possible. An experienced lawyer knows how to challenge the DUI stop as well as the validity of any field sobriety exercises done alongside the road. You need a strong advocate on your side to protect your interests and make sure that you get the best result possible for your case.

Do not try to challenge your arrest for driving under the influence alone. Call us or fill out our online contact form today. We look forward to working with you.

Mark Rubinstein

Attorney Mark S. Rubinstein has been practicing law for more than 30 years, including 25 years in Colorado. He founded Mark S. Rubinstein, P.C., in Carbondale after working for law firms in Denver and earlier in his career in San Diego. He focuses his practice in the areas of criminal defense and personal injury representation, and he is well known throughout western Colorado as an effective and unwavering advocate for his clients.