Interviewer: Are there any issues such as where if someone has a physical problem that makes administering the test invalid or suppressible? Let’s say a person is 80 pounds overweight or they are 70 years old.
Both Body Weight and Age of an Individual Are Factors That Can Skew Field Sobriety Test Results
Brian: It’s exactly that. Officers are trained that when doing field sobriety tests they do not want to get false-positive results. They basically describe false positives as someone who is 50 pounds or more overweight, or someone who is over a certain age.
Now a problem developed because the training and the rules specifically say if someone is 50 or more pounds overweight then they should not be required to do these tests as there is a danger of false positives.
The Officer May Ask an Individual if He or She Thinks That They Are Overweight Instead of Making Their Own Determination
Officers were then asking people if they feel that they were overweight. Even though someone may be what everyone else would consider to be 50 or more pounds overweight, the officer in their opinion thinks that weight could be construed as a “healthy 50 pounds overweight.”
Or the officer is used to being 50 pounds overweight, so that’s their normal. They would try to make an excuse for why this obviously large individual and why is it OK to administer field sobriety tests to them and why the test results should be considered accurate when that individual was not able to maintain balance.
How do the Courts View the Administration of the Field Sobriety Tests?
Interviewer: What do the judges say about that? Do they agree with the police?
Brian: It has been up to the jury. When we were part of the Frye standard, basically everything came down to the decision of the jury. Now that we’re in the Daubert standard, there might be more opportunity for us to put forth arguments where we can say that these field sobriety tests are worthless and not scientific to begin with.
As defense attorneys, we basically argue that it’s” junk” science and it should not even go in front of the jury and be part of their deliberations. The jury will not know how to properly process this sort of information. It’s not based on solid scientific standards.
What Actions Do Juries Take into Account?
Interviewer: What actions does the jury take into consideration? Which ones seem to have more of an effect?
The Juries Do Look for Respectful Treatment toward the Police
Brian: I think the jury is looking for something that they would not see exhibited by a normal individual, one that is not impaired. I think normally they would expect someone to be polite and cooperative with officers.
The Officers Will Note Any Physical Signs of Impairment That They Observe
They do take into account if someone is arguing with the officer, yelling or screaming at the officer or exhibiting wide mood swings. That kind of tips the jury off that “This person might be impaired.” They also look to see if the individual is staggering or swaying, because these are things that the officer will usually note.
Some of the Physical Signs of Impairment Can be caused by Issues Other Than Alcohol
There may be notes about an observation of a flushed face, slurred speech, bloodshot or bloody eyes, again because the officer will often cite that and say that’s a sign or symptom of impairment. But there are so many other things that can cause bloodshot or watery eyes such as allergies or just simply being tired.
A lot of these DUI arrests tend to happen very late at night or very early in the morning. It’s not uncommon for someone to have bloodshot or watery eyes. Anything out of the ordinary that is seen on a person always is attributed by the officer to some form of impairment.
The Environment That the Field Sobriety Tests Are Conducted in Is a Factor in the Results
Interviewer: What about if the test is conducted in an environment that is conducive to a false positive result? Let’s say the police are administering the tests on an uneven surface, for example, the side of the highway that also has oncoming traffic driving by and lights flashing in the person’s eyes.
Brian: There have been allegations of that nature from many clients. They may have been asked to perform the tests on gravely sidewalks or a sidewalk littered with debris.
One of the instructions that the officers have been known relay is advising the person during the walk and turn test, “Walk this line nine steps forward and nine steps back”. The problem is that it’s an imaginary line that the officers imagining and trying to convince the suspect to imagine that same line.
It’s a line that goes from here to here. Then they say that the person stepped off of the line. That’s a strike against them. They stepped off of an imaginary line that the officer created in their head.
Can Your Attorney Defend Against the Results of the Field Sobriety Tests?
How heavily should the jury weigh this information? And it’s something that we can argue. It’s something that the jury would hear if the prosecutor decides to bring that out.
The police do not ask people to perform these tests in an isolated room. Sometimes they administer them right next to the freeways or other busy roadways.
I have had at least one client talk about where the officer even commented out loud “This isn’t really fair to you, we’re on a steep hill but that’s OK, go ahead and do it anyway.”
Interviewer: Are you able to defend your client against the results of these tests?
Brian: All of the evidence gets before the jury. And the jury renders their decision. I’m sure everything comes into play. They may say to each other, “As far as the field sobriety test results go, don’t really put any faith into those.”
The Juries Do Weigh the Validity of the Evidence into Their Final Determination
They do take into account that the defendant had bloodshot watery eyes and blood alcohol content three times the legal limit. So they are still going to find the defendant guilty. Surprisingly, very often jurors will not wait around to talk to the attorneys afterwards.
Some judges encourage this. Some judges don’t. I think a lot of times jurors are not really happy with the way that they have come to their decision. They don’t necessarily like what they have done but they felt that was the right decision.
Can Certain Types of Footwear influence the Results of the Field Sobriety Tests?
Interviewer: What other factors can influence the results of field sobriety tests? Does it matter if a woman is wearing heels?
Brian: The officers do give people the ability to remove their footwear. Some people are wearing heels. Some people are wearing soft-toed shoes or some people are wearing flip flops. The type of shoe being worn can influence the result of the walk and turn, where they will literally give you a strike against you if you fail to touch heel-to-toe.
When these tests are demonstrated in open court the officer will show the jury here’s how you are supposed to walk. When they are wearing steel-toed shoes, it makes a loud noise. You can see that yes, this is heel to toe.
Yes, the heel is touching the toe and there’s no space in between. When you talk about people’s normal everyday shoe wear, you can’t do that correctly with flip flops. You can’t do that with high-heeled shoes. You can’t do that with soft-toed shoes.
Can Your Emotional State Influence the Field Sobriety Test Results?
Interviewer: Have you had cases where someone is so upset they’re hyperventilating? Do they have asthma and they are having trouble breathing because of the stress? Or do they just have a “meltdown?”
Brian: Sometimes. I do think some people just give up. There are people that just take a few steps forward and just say, “This is stupid.” There are some people that say “I simply can’t do this.” I haven’t encountered a client having a nervous breakdown in front of an officer.
No one’s run away. No one has fallen down. People do often have balance issues but they still have the ability to use their legs. It never gets that bad.
It Will Be Noted by the Police if You Refuse to Complete Any of the Field Sobriety Tests
Interviewer: What if people do actually say, “This is stupid,” and quit in the middle of the test?
Brian: Then that will be noted. It is important to remember that pretty much anything they do is going to be used against them.
It is also important to note that I don’t believe I’ve ever seen an officer say, “You did a perfect job on the field sobriety tests.”
It Is More Likely That Your Performance of the Field Sobriety Tests Will Be Used as Evidence against You
Interviewer: So people have to realize that there’s no way it’s going to help you. The results of the tests are only going to hurt you.
Brian: Yes. I try to get the word out. I’ve put that information on the back of business cards to try and inform people about the things that you are asked to do that are going to hurt you.
Field sobriety tests are really never going to help your case. I’ve seen people that do fantastic on field sobriety tests. But the problem is it’s difficult to get that across to a jury. I know because I’ve represented so many people that this person in comparison to all of my other clients really did do fantastic on the field sobriety tests.
But jurors don’t know all of those other clients. Jurors don’t know that most people perform horribly on these tests. When a jury does see a defendant, someone that did very well on the tests, the jury has nothing to compare those results with.
