Field Sobriety Testing in DUI Cases: A General Overview
Field Sobriety Tests (also referred to as FST’s, physical sobriety exercises, field tests, roadsides, etc.) are a set of subjective examinations used by law enforcement agencies all over the country in DUI investigations. They are a set of divided attention tasks that supposedly provide police with a way of determining whether or not a suspect is impaired. They also are used by police in attempts to obtain probable cause for a DUI arrest.
If you are requested to submit to the exercises, it’s because the officer already thinks that you are impaired. In fact, unless the officer has at least a reasonable suspicion you were driving under the influence, he legally cannot request you to perform them. It doesn’t take much for an officer’s belief to be reasonable – just the mere fact that he smells an odor on your breath could be enough.
Your performance on the field exercises is supposed to be used to confirm or dispell the officer’s suspicion that you are impaired. The problem with that is the officer’s suspicion is entirely subjective – that is, it is based solely on his belief and opinion. Furthermore, since the officer already suspects you are impaired before you even begin the exercises, he will be a bias observer and will evaluate your performance in such a way that will aways produce skewed results.
Voluntary or Involuntary?
Field sobriety exercises are voluntary. Unfortunately most people are unaware of this fact and submit because they think they have no choice. In reality, the police are supposed to inform you that the tests are voluntary, and should “request” you to submit, or ask whether you agree to perform them. In practice, however, officers may merely demand or order you to comply, or begin administering them without giving you an opportunity to refuse.
If you were forced into performing the exercises, or not otherwise told they were voluntary, be sure to tell your attorney immediately. It may not make or break your case, but it is absolutely relevant and may be helpful to your defense.
Consequences of Refusal
Refusing to comply with an officer’s request to submit to roadsides is not the same as refusing to submit to a chemical test of your breath, blood, or urine. Refusal to give a chemical sample carries far more serious consequences, including the loss of your driving privileges under most state’s implied consent laws. Refusal to perform roadsides will not result in a license suspension; however, in some jurisdictions it can and will be used against you in court.
In some states the prosecution is not allowed to comment on your refusal, but in other states the prosecutor is entitled to inform the jury you declined to comply – which is then used as an indication of your guilty mind. The thought there is that someone who is really innocent will do everything they can to prove they are innocent. It is therefore important to obtain an attorney because you must make the jury understand that refusal alone does not indicate guilt, and that several justifications exist for choosing not to comply.
When you shouldn’t submit (always!)
The answer to the question of whether or not you should ever submit to the roadside exercises is always no. Even if you have had nothing to drink at all, you still shouldn’t submit to the exercises. The reason why is because even sober, people can and will still “fail” these sobriety tests. Several factors can affect your ability to perform the exercises to standards that have absolutely nothing to do with intoxication.
The biggest factor other than impairment that could cause you to “fail” is being tired. Most DUI investigations are conducted late at night. Symptoms of fatigue can mirror those of intoxication. Poor roadside conditions will also have a major impact on performance. Perhaps you were on a sloping hill of a street, or on a narrow shoulder of a busy highway. The weather is a big factor. Imagine standing on one foot in freezing cold while it’s snowing or in the pouring rain! What you are wearing can skew results too – high heels and pants that are too baggy or so long they drag on the floor can affect your ability to balance. Finally, inexperienced and poorly trained police officers that improperly administer the test guarantee results that are always invalid.
According to the National Highway Safety Traffic Administration (NHTSA), people over the age of 65 or those overweight by more than 50 pounds will not be able to perform the test. Individuals with medical problems, such as leg or back pains, ear infections, or those taking certain medications shouldn’t submit either. And if you have ADD or other psychological disorders, you better believe refusing is your best option - such conditions will affect your ability to pay attention to the officer’s instructions.