Interviewer: What do you think some of the top misconceptions people have about standardized field sobriety tests?
The Police Will Rarely, If Ever, Allow You to Leave after You Perform the Tests
Attorney: The misconception I think of the motorist is that if they perform these tests for the police officer that he or she will let you go home. Most people will tell you “I did fine. I passed these tests. I was able to do all the steps. I was able to touch my nose. I was able to follow the pen. I was able to stand on one leg.”
Again, the problem becomes if the person is intoxicated, the thinking is not clear anyway so you shouldn’t be driving. Then, of course, if you think you’re okay to drive you probably think you’re okay to do these tests and you may not perform as well as you’d like to perform.
From the other point of view, because the tests are incapable of being passed, even if you were able to walk nine steps back and forth, if you’re able to stand on one leg, if you’re able to follow the police officer’s pen, or what they refer to as a stimulus, you’re still going to get arrested. This is because again the test is inconclusive.
You Are Not Legally Obligated to Perform the Field Sobriety Tests
The test performance will never prohibit you from being arrested. I always tell people, for our point of view, at least in New York, you can refuse to take these field sobriety tests. You will be cooperative with the officer but there is no reason to take them, they can only be used against you.
Myself, I use the results of these field sobriety tests to show that the person was, in fact, not intoxicated by a number of steps. Not the least of which is that the police officer usually does not administer them in the standardized fashion, so that is always helpful to us.
But for the most part, I think most motorists are not aware of what their rights are, nor are they aware of what their rights are not, and they think that the more they give and the more they cooperate the better it is for them, and I find that’s usually not the case.
DWI Defense Requires a Thorough Knowledge of State Law
Interviewer: Many people, I think from the general consensus, all say the field sobriety test is something someone has to do, it’s necessary. At what point in your career did you realize, “Wait a minute. This is not fair. This is something that I want to go ahead and defend people’s rights about.” Was there a particular case you handled that motivated you to focus on DWI defense?
Attorney: The more I did DWI defense the more I became educated. Of course, I’m a member of the National College for DUI Defense, so I receive extensive training in defense of DWI and DUI cases. But a lawyer who is competent to handle DWI cases must know and should know what the laws are, just like every other criminal case.
New York State Enforces Implied Consent
In New York, for instance, we have what’s called the implied consent. What does that mean? It means that when you have a driver’s license issued by New York, or you drive on the roads in New York, the motorist, it is implied, will submit to field sobriety tests and will submit to a chemical test of their blood, breath or urine.
Implied Consent Means Motorists Have Implied They Will Consent to Testing by Obtaining a Driver’s License
However, like anything else, as you have a right to remain silent, you do have a right not to take these tests. If you don’t take the tests there could be a sanction issued by the Department of Motor Vehicles. This is because you promised that if you operated on the roads of New York you will take these tests, so if you don’t you could lose your right to drive on the roads in New York for a year.
Certainly, like everything else, I tell people it’s as if you’re making a statement to the police, whether it’s an admission or confession or anything else that you say to the police, just because you think it is going to help you doesn’t make it so.
The more I defended these cases the more I saw the abuse that was issued by the government and by the police.The more abuse I witnessed, the more I was able to lecture on this and teach this and defend this and handle it myself, explaining to people why they, for the most part, shouldn’t take these tests.