Why Field Sobriety Tests Are Unfair And Unreliable In Drunk Driving Cases

How Police Determine Sobriety

Field sobriety tests (FSTs) are used by the officer to help determine if, in his or her opinion, the driver is under the influence and should be arrested for drunk driving. The driver is usually ordered out of the vehicle. While standing on the side of the road, an officer places the driver through a series of balance, coordination, mental cognition field sobriety tests. While each jurisdiction uses its own set of standard field sobriety tests, there are some tests that are used by practically all police agencies.

Balance Tests

Standing on one foot, walking an imaginary line in the dark, leaning backwards while having your eyes closed are all balance and coordination tests and say little or anything about the drivers level of sobriety. Innocent factors affecting balance must factor in the actual location and conditions surrounding the test. For example, whether the tests were performed while cars were speeding by, whether the testing was performed in an area where there was poor light conditions, whether the surface of the road was uneven or sloped and if the weather conditions were problematic for such testing, such as being cold, windy, rainy, or snowing. Finally,a unsteady gait or balance could be the result of a foot or leg injury or merely because the driver was wearing stiff and slippery dress shoes. The really talented defense lawyer can attack each of these tests as being unreliable under the circumstances.

Coordination Tests

Touching ones fingers tips while moving them forward and backwards, alternate hand clapping and the finger-to-nose test while having ones eyes closed are all tests that are highly subjective and deficits in any of them can be explained away depending on what was going on when the tests were being administered. Not only does the location and conditions of the field sobriety test affect the outcome, the officers can be doing a poor job explaining exactly what is being asked of the subject. Remember the investigating officer has demonstrated these tests hundreds of times and expects the subject to get them right the first time he is asked to perform them. Finally, officers are trained to look for evidence that supports a conviction, not evidence that supports an acquittal which means the officer is already predisposed to making a finding of impaired driving.

Mental Tests

Reciting the alphabet backwards or asking the driver to count backwards from a random number (count backwards from 99 to 49 by 2’s). Most defense attorneys can point out that these tests would be difficult for any person to perform, sober or not, say nothing of the fact that the tests are usually administered late at night, while the subject is nervous and under interrogation.

Eye Nystagmus

The driver is asked to follow the officer’s pen with the eyes without moving the head. The officer is looking to see if the pupil of the eye “bounces” as it follows the pen. This can be an unreliable indicator of alcohol consumption. Nystagmus can be caused by antihistamines, certain eye conditions, or excessive lack of sleep.

Blood Shot Watery Eyes

Blood shot watery eyes may have several causes other then a lack of sobriety. The driver may be operating on very little sleep, may have worked all day at a computer terminal, may be suffering from a cold or allergies.

Slurred Speech

While an officer may associate slurred speech with driving under the influence, it may also be a side effect of certain medications or medical conditions. Remember the officer has never spoken to the driver before and therefore, has no idea how his or her speech “should” sound. If this topic comes up in court, the officer should be questioned on how many other times he has spoken to the driver (none) and how the driver’s voice was different from his or her usual speaking style. The problem with this test is that is it unreasonably subjective.

Smell Of Alcohol

The smell of alcohol may be in the car even if the driver was not the one who had been drinking. If there is a passenger, the passenger may have been drinking. If the driver has been in a bar, he or she most likely smells of stale cigarette smoke and alcohol, even if he or she had nothing to drink. Finally, you could smell of alcohol by having a single beer, so this observation is simply not reliable on the issue of impairment. It is only relevant on the issue of whether the driver had a drink and does not rule out non-alchole beers which are sold at bars and liquor stores.

Driver Has Trouble Finding His Drivers License

People organize wallets in many different ways. Some don’t separate their credit cards from their driver’s license. And some people couldn’t find their license if they were stone sober in broad daylight. This factor alone says nothing about the driver’s state of sobriety. What it can say is that the driver might have ben nervous from having been pulled over by a police officer – especially it the patrol lights and siren were used.

While the officer may assert that some or all of the above observation was evidence of intoxication, an experienced trial defense attorney will be able to counter each and every one of these observations with alternative reasons that have little or no bearing on the drivers ability to drive safely. The one major obstacle to winning an acquital is when these observations are coupled with a high Breath, Blood or Urine test. Unless the test result is near the sobriety level, the case should be negotiated and pled, assuming of course the stop was valid which in almost all DUI cases can be easily justified.


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