Basically, because you refused to do it you probably would have failed. I believe a refusal is still much better than actually doing the test and them pointing out all of the things that you did wrong. Than supposedly having proof that you were impaired because you could not do the test in the first place.
Interviewer: That is actually what I was going to ask you, if you would recommend doing them as opposed to not doing them. You would still recommend not performing the field sobriety tests.
If You Refuse, You Can Justify Your Decision during Your Trial
Brian: Yes, absolutely. I think you respectfully decline to do them and you can always testify about your decision at the trial because the prosecutor will try to make the point that you refused because you were impaired.
The client can take the stand and say” I didn’t do the test because I have balance issues and I didn’t want to give the officer the wrong impression that I was impaired.”
Interviewer: I know you can’t give specifics, but how often is this defense successful? Is it usually a pretty solid defense?
Brian: I think it is always better for the person to refuse the field sobriety test. The officer is always going to say that the person failed the field sobriety test even if they do perform it very well.
Declining the Field Sobriety Tests Is a Defensible Issue during Trial
The officer is always going to chalk it up that a failure was due to alcohol impairment, or drug or medication impairment. Our argument is always going to be that generally people don’t have good balance. They don’t naturally have good balance.
Your Defense Attorney Will Point out the Difficulty That Any Person Would Experience in Correctly Performing the Field Sobriety Tests
I will often tell the jury that, basically, the field sobriety test should be ignored because the only people that can really do it are ballerinas, gymnasts, and police officers because they practice so much.
It is not uncommon for either the prosecutor or I to ask the officer to demonstrate these field sobriety tests. Even in open court the officer can’t successfully do the field sobriety tests. They try to explain that they need to keep their foot up for 30 seconds.
You will see the officer tap his foot down on the ground just as any normal person would do. And then this question naturally follows, “Officer, are you impaired by alcohol?”
Interviewer: Have you said that during a trial?
The Defense Attorney Will Try to Instill Reasonable Doubt in the Minds of the Jurors
Brian: I haven’t gone that far. But I’ve tried to explain to the jury. The defense attorney is not really allowed to interact with the jury. I can’t really directly instruct them about something, that is the judge’s responsibility.
What I can do is try to put an idea into their minds as much as possible. In this instance, the idea I try to instill is that if these jurors had gone back and attempted to do these field sobriety tests being a hundred percent sober, they would not be able to do them.
I may have asked an officer once or twice if they were drunk.
Interviewer: We covered horizontal gaze Nystagmus and the walking turn tests. Are there other standard field sobriety tests that people will encounter during a police stop?
The One Leg Stand Test
Brian: Yes. One of the other tests is the one leg stand. This is where basically the officers are looking to see if the person sways while balancing, if they use their arms for balance by raising them six inches or more from their side and to see if they’re hopping during the test.
What Are the Police Officers Looking For During the Administration of this Test?
The officer will look to see if they put their foot down or to see if they simply cannot do the test because they put their foot down three or more times. Many people can’t keep their foot up that long. It doesn’t matter if they’re sober, drunk, old, young, people cannot do this for a sustained period of time.
The officers are trying to attribute it to alcohol. They’ll see if you put your foot down even temporarily. They are watching if you count incorrectly, if you count for too long, if you stop the test, and if you raise your arms more than six inches from your side.
They really don’t tell you that any of these actions are going to be used as strikes against you. But that’s what they’re looking for. That’s what they’re marking you down as doing. Inevitably, just about everyone fails these tests.
