Attacking Field Sobriety Tests

Posted by Robert Berglund | Feb 07, 2017 | 0 Comments

As we discussed previously in our DUI Blog, Field Sobriety Tests (FST's) are used by law enforcement officers as an investigative tool to determine if a driver is drunk or impaired in some manner.  During cross-examination of the police officer during a motion hearing or trial, a good DUI Lawyer will call into question the reliability and accuracy of the FST's as a reliable indicator of intoxication.  There are a number of things that should be examined carefully.

Testing Surface Is Sloped

One such area that requires a close examination is the surface in which the tests were given.  FST's, specifically the Walk-and-Turn, One-Leg Stand, and the Rhomberg Test, should be given on a level surface.  However, more often than not FST's are not given on a level surface as completely level surfaces are not always easy to find.  Rather, the tests are given on a surface which is sloped to some degree.  This adds to the degree of difficulty in successfully completing the FST's. 

Lack of a Baseline

One question that should be asked of the officer is whether they have ever administered FST's to the driver at any other time.  The officer's answer will be in the negative.  If the officer does not know how the driver would have performed on another day without the consumption of alcohol then he cannot claim that the person did poorly due to alcohol intoxication on the night of the DUI arrest.  The officer has no baseline which to compare the driver's performance.  The individual may simply be poorly coordinated or have some physical problem which would prevent him from performing well regardless of whether or not alcohol was consumed.  

Other Reasons for Poor Performance

FST's can be difficult.  Coupled with the fact that most DUI investigations are at night and most people performing FST's are doing so for the very first time, many people simply do not perform well for reasons that have nothing to do with having consumed too much alcohol.  Lack of coordination, fatigue, physical disability, fear, and stress are a few of the reasons why someone may "fail" the FST's.  FST's have numerous instructions and can be quite complicated, especially to a person hearing the instructions for the very first time.  

Attack on Objective Factors of Intoxication 

Officers frequently testify that a suspected DUI driver displayed "objective symptoms of intoxication."  These include bloodshot/watery eyes, odor of alcohol, slurred speech, and an unsteady gait.  In reality, these "objective symptoms" are very subjective.  How bloodshot a person's eyes are is a matter of opinion.  Furthermore, there are many reasons that a person's eyes may become red and watery, including crying, contact lenses, allergies, or other eye irritations.   There is no objective criteria to determine the degree of redness in the eyes. 

Similarly, characterizing how strong the odor of alcohol is (usually moderate or strong) is a matter of opinion.  More importantly, an officer cannot determine, or even estimate, how much alcohol a person has consumed by the odor.  Interestingly enough, alcoholic beverages with lesser amounts of alcohol tend to have stronger odors.  For example, beer has a stronger smell than vodka.  Liquors such as vodka have a much higher alcohol percentage than any beer. 

Poor Performance on FST's Does Not Mean You Are DUI

The vast majority of DUI arrest reports conclude that the driver has failed most, if not all, of the FST's.  With a thorough defense investigation, review of any available audio and video tapes of the DUI investigation, and cross-examination of the officer during a motion hearing or trial, a good DUI Lawyer may be able prove otherwise.  This could make the difference between a person being convicted of DUI or not.  Do not assume that you must be guilty because the officer told you that you failed the FST's. CONTACT our office today for a free and confidential DUI consultation. Berglund Law Office, P.C. specializes in representing persons arrested on suspicion of DUI.  

About the Author

Robert Berglund

Attorney Robert D. Berglund specializes in representing persons arrested on suspicion of Driving Under the Influence of alcohol or marijuana...


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