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How Do You Defend Failed Field Sobriety Tests?


Interviewer: When someone is pulled over, they are asked to get out of the car for a field sobriety test. The driver is told, “Walk a straight line;” “Walk and turn;” or “Follow my pen.” What happens if someone fails a field sobriety test? Can you fight the results?

Aaron: If someone is pulled over and investigated for A DUI, my advice is respectfully decline to do the field sobriety test. Respectfully decline to blow into the preliminary alcohol screen device.

Only once they are arrested are people required to do a breath or blood test. If they do not do it, it is considered a refusal. So if arrested, you have to do it. After arrest, I advise doing it in most cases.

What happens if someone does terrible? What happens if someone does not do very well on the field sobriety test? The answer to that is:  It depends. Those tests were not designed for people who are out of shape.

Those tests were not designed for people in their mid-50s or older. These tests show your balance, ability to do different tasks, counting fingers and writing the alphabet. However, there are all sorts of defenses to these tests.

 Clients are often concerned about the officer’s report which says they messed something up; or two or three things on a field sobriety test. I often say to them “Let’s look at all the things that you did right.”

 I can usually list 10, 20, 30 things that someone did correctly to counter the 2 or 3 things someone did not do very well, in the officer’s opinion. I am not as concerned about the field sobriety test, unless someone is falling over and throwing up. Then again, that someone may be sick with something other than alcohol.

 However, I am not as concerned about the field sobriety test, usually. I am more concerned about the blood alcohol level.

By Aaron Bortel

Aaron Bortel

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