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How Defensible Is the Performance of the Field Sobriety Tests?


Interviewer: As an attorney what do you think is the most difficult aspect of dealing with a case that involves a field sobriety test as a main point?

Aaron Bortel: The difficult ones are when we have people who the officer has to literally catch them. They’re falling over. They’re doing horrible on these tests. Those are very hard tests to prevail against especially because we’re dealing with two different issues usually.

There Are 2 Components to DUI Charges: the Per se Charge and the Impaired Driving Charge

We’re dealing with two charges. We’re dealing with the per se charge, which means was the person at or over a .08 blood-alcohol level at the time of driving? Another charge is impaired driving. Impaired driving means were they driving with the care and caution of a sober person?

It Is Highly Likely Drivers Will Fare Poorly on at Least One of the Tests

When you have a client that underwent the field sobriety tests and did not perform well it’s tough to challenge. In most cases, someone doesn’t do well on at least one or two. In the cases where we have someone having problems with one or two tests and doing okay on another test, the results are a lot easier to challenge.

What I usually do is I will point out in the trial situation what my client did correctly. I will show how the directions were followed properly; how they did not start too early and point out all the things that someone did right.

The Defense Attorney Will Refute the Officers Allegations of Poor Performance by Pointing out What the Client Did Correctly

If an officer said someone on a one leg stand test put their foot down twice and raised their arms 12 inches from their sides I will show how they didn’t start too early; how they listen to directions; how when they were listening to the test they did not stumble or fall or step to the side. I will talk about how they lifted their foot when they were told to that they lifted it the correct height.

If they were able to count without an error and that when they put their foot down they immediately followed instructions and immediately put it up and continued to count.I will show how during that whole time they did not hop. They were not swaying. Everything that the officer failed to put down.

The Conditions Where the Tests Are Administered Can Cause a Person to Unintentionally Make Small Errors

I can usually see two or three things in a police report that someone does wrong on a test and yet I will be able to usually come up with 15, 20, 25 things that someone did correctly. Every person is prone to small errors when it is a cold, late at night with police cruiser lights shining on them.

Their futures are flashing before their eyes, their jobs and their family life. They are thinking about how much they could lose if they get convicted of a DUI. All that is going on and people are nervous and it’s hard to do these tests. Sometimes cars are whipping by on the freeway. They’re not administered in ideal circumstances. They’re not perfect lab settings where these tests were originally designed.

The Field Sobriety Tests Were Originally Designed in a Lab Setting

When the National Traffic Highway Safety Administration did the experiments to come up with percentages for these tests they were in lab settings. They were not on the side of the road, 35° out at two in the morning when someone’s wearing heels or a tank top and shorts with police lights in their faces. They’re just different settings.

Interviewer: Is it possible that people fail the same test even if they’re completely sober, hadn’t had a single drop of alcohol at all?

Aaron Bortel: Yes, some people just have better balance than others. Some people have physical problems. I know many people that can’t balance well and with no alcohol in their system could not do these field sobriety tests.

I’ve been to conferences all over the country and at a number of them we will be demonstrating the field sobriety tests. We get a group of attorneys up to the front of the room to try these tests and to try different modifications of them. We’re talking about sober people doing these tests and it’s shown over and over how hard they are. These are not easy tests.

Because It Requires Balance Skills, Seniors Have the Most Difficulty with the One Leg Stand Test

Interviewer: Which one of the tests have you seen as being the most unfair to senior citizens or elderly people as far as the field sobriety tests go?

Aaron Bortel: Typically standing on one leg for 30 seconds is something most people can’t do sober. When you have an elderly person trying to do that—it’s pretty rare they can do that test to the satisfaction of the police officer.

Is It Possible to Successfully Perform the Field Sobriety Tests after You Have Consumed Alcohol?

Interviewer: Now, on the other side of the spectrum have you ever heard of cases or seen cases where someone was well intoxicated, but was able to pass the sobriety test?

Aaron Bortel: Yes, I have. In fact, I’ve been administered these tests myself. I’ve been through the training that CHP does. It’s a three day course through the National Highway Traffic Safety Administration. I’ve passed the class and I’ve been recertified with a refresher class.

It’s pretty interesting to see people who are over the limit and still can do these tests. Some people do have a very high tolerance or a very good balance, which just goes to show that when these tests were designed they don’t take everybody into account. They don’t take the two different ends of the spectrum into account.

The Testing Results for Alcohol Impairment Is Based on Averages

They’re based on averages; that’s what DUI law is. Whether it’s with conversions from breath to blood or scoring testing, we’re dealing with averages. Because not everyone is average, when you get into contesting a DUI case, sometimes what needs to be done is it needs to be shown that the results that point to them being impaired is based on averages.

These tests are designed for the results to be based on averages, but not everyone is average and there’s reasonable doubt, in our case, because our client may not be average. It’s just a difference that everyone’s entitled to.

By Aaron Bortel

Aaron Bortel

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