Interviewer: After the police finish questioning you, when do they typically tell you to get out of the car?
Brian Sloan: They will normally indicate in their police reports that they noticed an odor of alcohol coming from the person or coming from the person’s breath or coming from the interior of the vehicle. They will normally talk of bloodshot, watery eyes, slurred speech, a flushed face, droopy eyes and they will ask the person to step out of the vehicle. Once they ask the person to step out of the vehicle, they will normally have them onto a sidewalk or a flat area and have them start field sobriety tests.
The field sobriety tests are meant to test your ability to perform multiple tasks at the same time, on the theory that an intoxicated person cannot do multiple actions at the same time. These actions include leaning back and touching your finger to your nose or lifting one leg while counting 1001, 1002, 1003.
There is the “walk and turn” test. There is the “finger-to-nose” test. There is the Romberg modified test. There’s the horizontal gaze and nystagmus test, which is putting the pen up to someone’s eyes and asking the person to track the movements of the pen, and there is a portable breath test, which is often administered at the scene.
The portable breath test is not considered reliable enough to use against the person at trial but it does give a reading of blood-alcohol content and it is enough information for the officer to utilize in deciding whether it’s appropriate to arrest you and that they have enough probable cause to arrest you.
The Field Sobriety Tests Are Designed To Be Failed
Interviewer: The whole point of all these tests is for the police to gather evidence to substantiate their belief, or their suspicion that you’re intoxicated and it’s affecting your driving?
Brian Sloan: It is, but the problem is these tests don’t really indicate that. There is rarely a person who can pass these tests, drunk or sober. I often say that ballerinas, gymnasts and police officers, only because they practice it so much, these are the only people who can successfully do these tests.
Your average person cannot walk a straight line, without stepping off of it. They cannot with their foot 6 inches off the ground and count 1001, 1002, all the way up to 30 seconds. They can’t estimate 30 seconds, in 30 seconds, without using a watch. These tests that are supposedly field sobriety tests are physical and mental tests that your average person cannot do.
Now, the portable breath test, if that shows a positive result, chances are that is something that would occur with someone who has consumed alcohol, as opposed to someone who has not consumed alcohol.
You May Refuse the Field Sobriety and Portable Breath Tests
The thing is, all these field sobriety tests, the walk and turn, the horizontal gaze and nystagmus, the one leg stand, the Romberg modified, the walk and turn, and the portable breath test, there’s nothing requiring that a person do these tests.
A person can say “no” and, if they say no, yes, they might get arrested that day but they have likely prevented a case from being brought against them in the future and prevented the gathering of any evidence that will be used against them at trial.
Interviewer: You say that almost nobody passes these tests and if you’re asked to do them, at this point, you’re probably going to be arrested it seems like, so you might as well say “no.” Is that correct?
If You Decline the Field Tests, You Can Prevent the Police From Gathering Evidence Against You
Brian Sloan: Yes. You definitely should say no. There is really nothing helpful in doing these tests. Maybe, 1 out of 1000 people can do these tests well enough to the point where an officer will say, “Okay. I’m not going to arrest you.” I have rarely seen a police report that says that the suspect did very well on these field sobriety tests.
The fact of the matter is, if I’m looking at a police report that says that the person has done very well on field sobriety tests, that still means they were arrested. That still means that they were charged, because I’m representing them. You are not going to be able to prove to the officer that you are sober enough to drive. The result of that test will only be used against you.
It will only hurt you. You are not forced to do it. There is nothing under law that requires you to do it. There’s nothing the officer can do to require you to do it. He cannot hold a gun to your head and make you do these.
The only thing you really need to do, with the officer, is provide a form of identification and keep quiet. Don’t do anything.
Interviewer: When you end up in court, how do the judge and maybe a jury look at your case if you refuse to do these tests? Does it look bad for you or does it really not have a bearing?
Brian Sloan: You know, there is case law that says that if a person refuses to do these tests that refusal can be presented and used against you at trial. It is not a matter of self-incrimination. It is simply the officer saying that the person refused the field sobriety tests.
Your Defense Attorney Can Argue That the Field Tests Are Designed to Incriminate
As an attorney, I would much rather try to explain to the jury, through the officer, that the person is not required to do these field sobriety tests. “Would you agree that there’s no reason for them to do these field sobriety tests, that the average person would have issues with these tests because the average person has balance issues?”
I would much rather fight the issue to the jury, saying that there’s no reason for someone to perform these field sobriety tests rather than trying to explain to the jury, “this is why the person is so bad on this field sobriety test and this one and this one.
Interviewer: I’m sure a lot of people perform them because they probably feel obligated or coerced or they want to cooperate. If the police tell you that you failed and they arrest you, does that mean you’re going to be convicted or their defensible in court?
In Court, your Defense Attorney Can Try to Have the Arresting Officer Admit the Fallibility of the Sobriety Field Test Results
Brian Sloan: I attack the field sobriety tests on the theory that people cannot perform them correctly and, as a defense attorney during trial, I’m really not allowed to interact with the jury. I can’t tell the jury that they should go back there and do these field sobriety tests and they will see that the average person cannot do it.
What I do, I try to get right up to that line and go through the officer and have the officer explain to the jury. What they will often say is, “Yes, your average person can do this. No, your average person will not have issues with doing these tests. They should have absolutely no problems as long as they’re sober.”
Hopefully, the officer’s answer reminds the jurors that, “While we are deliberating, let’s see if we can do these field sobriety tests. I’m sober. Let’s see if we can actually do this,” and they will very likely spin around like a top or stumble and fall down.
Interviewer: Are there standard tests that the police will always do or they just randomly select a few?