As a citizen of our community, I would ask all of my readers to never drink and drive. If you choose to drink, stay home or make sure that you have a designated driver. We want for our society to be as safe as possible.
Unfortunately, I run across a number of clients who are accused of DUI. While advice varies from case to case, one thing is constant when a person is the subject of a DUI investigation. Do not ever take any field sobriety tests.
Field Sobriety Tests (FSTs) were developed by police agencies to assist law enforcement officers in making roadside determinations as to whether a driver is under the influence of alcohol or drugs. Through the performance of these tests or evaluations, the officer subjectively determines how the motorist reacts to and performs the tests.
They are also 100 percent voluntary. No one can make a person submit roadside tests. I believe that one of the reasons that they are voluntary is because these tests can be very difficult to perform; even for completely sober drivers.
FSTs are commonly used by police officers because a driver’s alleged poor performance on field evaluations may provide the legal justification an officer needs to arrest a person for impaired driving. The video of the defendant may also become part of the proof used to later convict the person at trial. Therefore, it is very important that your defense attorney knows as much or more about these tests as the police.
If these tests were taken, then the lawyer for the defense must challenge the subjective nature of the evaluations, the accuracy of the principles behind the tests, the accuracy of the administration of the tests, and challenge all circumstances connected with the evaluations. The attorney representing you must attack the factual and legal issues that may arise regarding the officer’s scoring and evaluation of the field tests.
There are three common tests that have been “scientifically” studied and paid for by the federal government. These tests have a measure of reliability in helping an officer predict whether a person is driving while intoxicated. These three tests are (1) the walk and turn test, (2) the one leg stand test, and (3) the horizontal gaze nystagmus (HGN) test. (Follow the pen with your eyes). Try the walk and turn and the one leg stand at home. You may see how difficult they are to perform.
Based on my experience, most citizens believe that they must submit to FSTs. This is not true. They are voluntary and should never be performed.
Another FST that should not be confused with the Intoxilizer 5000 (the breath testing machine back at the police station) is the portable breath testing device, or “alcosensor.” This alcohol screening device can detect the presence of alcohol if it has been properly calibrated. However, like other “field tests”, these devices used at the roadway should be politely declined.
Notice that I emphasize the word “politely.” This is important to me for a number of reasons. The main reason is that we should treat police officers with respect and dignity. When an officer is conducting a DUI investigation, he or she is simply doing their duty. Remember, these folks risk their lives every day in order to serve and protect the community. There is never a reason to be rude, arrogant, or confrontational when declining FSTs.
As I said in the beginning, don’t drink and drive in the first place. However, not every person accused of drinking and driving is guilty of the offense. If you ever find yourself in a situation where you are being investigated for DUI, remember that you have legal rights too. Exercise them.