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Are The Sobriety Tests Actually Admissible In Court?


Absolutely. We would be able to point out if they were not given properly and we could even ask that they be excluded, but the judges would almost always let these field sobriety tests in even if the person was not told these tests were optional. We would definitely have a violation if it could be shown that the officer said the tests were mandatory, because it was recorded that they told the person they had to do these or that the person had no choice or the law required them to do these tests. It would need to be determined whether or not the judge agreed with us so that we could keep these tests out or at least bring a motion to keep them out.

Do The Results Of These Tests Depend On The Officer’s Perception And Judgment?

Absolutely, although this would depend on the officer’s training, because some are better trained than others. California Highway Patrol officers usually do a better job because they have received a lot more training but also because they implement these tests more often than non Highway Patrol officers. They use their judgment while using these tests along with other observations they make and sometimes even other tests in addition to these tests to determine whether or not to arrest someone for a DUI. Typically, once they were done with giving whatever balancing tests or field tests they wanted to, they would follow it up with a preliminary alcohol screening test so that if the person came in at or over a 0.08 blood alcohol level, they would arrest them for DUI.

Do The Majority Officers Have Updated Training Or Is It A Once Only Training?

These officers would typically do their training in the academy and then they would do training in the field. The training in the field would basically be done when they were present while another officer was giving someone field sobriety tests or if they were administrating these tests themselves, but there would usually not be a lot of follow-up training or a lot of additional courses. Some officers go through DRE training to become drug recognition experts, and in that they may get a little more training on these three standardized field sobriety tests. Often, when I am cross-examining a police officer regarding the legality of a stop, or in a jury trial and they talk about their training, all of their training in the classroom with an instructor would have been done at the academy and there would rarely be any other additional training. Their training would have happened long ago and if an officer was not practicing administering these tests or they were not administering them regularly, then they would almost always give them and interpret them incorrectly.

How Helpful Is Video For DUI Investigations?

The result of the field sobriety tests would depend on the officer and although most officers are quite good at this, some are not, which is one of the reasons we need to evaluate these tests. This is something that video has helped us with a lot more, because police departments are using video so we can see the video of the admonishments that were given regarding these tests and we can see the video of the actual tests.

Unfortunately, a major problem that is specifically happening with the California Patrol that I see time and time again is that they pull the person out of the car for DUI, get them over to the side of the road and instead of doing the field sobriety tests so the dashcam can see it or turning the camera to the side so it can record the field sobriety testing, they bring the person over to the side, the passenger side of the police vehicle and more toward the middle of the car near the backseat door which is an area that is off camera. Sometimes we do get audio but we do not get video, and I have a major problem with that because the videos in these cars are designed to record, and the best evidence we could have if someone wanted to use field sobriety tests against someone arrested for DUI would be the actual recording of how they performed on these tests. By denying people a right to be able to defend themselves with the recorded video of a field sobriety test, denying the court and denying the jury the right to see how they did on the field sobriety test, they would basically be saying they would come into court and testify, they would do a police report and then the court would just have to take the officer’s word about how the person performed on the tests. All they would actually have to do is simply put the person in front of a camera. They refuse to do it over and over and this has become a real big pet peeve of mine and many other DUI lawyers. It is wrong that officers are not required to put the people they stop on camera, because there is no penalty for not putting them on camera and until there is, this system will continue to be weighed against our clients, which is completely unfair.

Someone who was facing a criminal conviction and who had to face a jury trial should have a right to see how they did on the field sobriety tests. Their lawyer should also be able to see these videos so they could help their client make up their mind whether or not to go to a jury trial or to look at the strength and weaknesses of their case. It just seems so simple and yet the officers feel the need to keep the people they are testing off camera. Officers often say, and in some circumstances this is actually the case, that they would be on the side of a highway and it would be dangerous to put someone in front of the police car, because they could be hurt if someone hit the police car from behind. In this case the officer should have angled the police car a little bit more or just moved the camera, because that is all they would have to do. Alternatively, they could just go to a different spot to do the tests. There are a lot of ways they would be able to record this but yet they refuse to and it is a travesty of justice.

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Aaron Bortel

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