Interviewer: What they’re trying to do, essentially, is gather more and more evidence that the person was intoxicated?
Attorney: Correct, except they’re not gathering evidence, they’re creating evidence.
Is what it is, because again, keeping in mind that unless the driver of the motor vehicle is really driving so erratically that they’re crashing, poor driving is not usually the reason for the initial stop. Usually we have a driver who is pulled over, not for exhibiting bad driving, but for a traffic violation. Maybe they were speeding, the police officer say they didn’t signal when they changed lanes or exited off the highway. Very seldom do you have somebody who really was going from one lane to the next and being a road hazard, based upon that they pull somebody over.
Disputing the Police Claims: A Car Accident or Minor Traffic Violation Is Not an Indicator of Intoxication
Anybody who is not under the influence of alcohol can have a car accident. Anybody can fail to signal. Anybody can have a speeding ticket having nothing to do with alcohol. They invent these things, and then to support the accusation of driving while intoxicated they then have these tests.
Then they say, “See? Not only was it my opinion that he was not driving well, but when I gave him these tests it further supported my clues that the person was under the influence. I gave him these particular tests and then I arrested them and they blew into a machine, and see they blew a certain number.”
Performance on the Field Sobriety Tests Is Also Not a Reliable Indication of Intoxication
I always ask people and I ask police officers on the witness stand, and I ask potential jurors, those people who have driver’s license, how many of these people, how many of us when we went to get our driver’s license, how many of us were asked to stand on one leg at the DMV?
To which the answer, of course, is nobody. How many people were asked by the DMV or in Driver’s Ed, or anywhere prior to getting a driver’s license, to take nine steps heel-to-toe in one direction and turn around and walk nine steps back in the other direction, all staying on a line, and the majority of the time the line is an imaginary line? Again, the answer is no one.
This is things that they make people do to create the illusion and to create what they call is evidence of intoxication to bring against people in a courtroom.
Since the Majority of Police Stops Are Not Recorded, There Is No Definitive Record of the Driver’s Performance of the Field Sobriety Tests
Interviewer: If a police officer is unsatisfied with the results that he sees o the field sobriety tests, will he ask the motorist to repeat the tests?
Attorney: Keeping in mind this is not on video, so the person can do it perfectly and the police office can just write down in his notes that they didn’t do it perfectly. They don’t have to let them do it a second time. We also have to keep in mind that the officer who makes the arrest and who stops our clients is somebody who has made arrests in the past. So the officer says, “Well, I demonstrated how to do these particular things. I stood on one leg for a few seconds and I took a few steps heel to toe,” but these officers have done it hundreds of times.
They’ve learned how to administer this. They say they were trained in a classroom. They’ve done this, and they’ve practiced it hundreds of times. How many times has our client had a chance to practice this?
Nervousness and Lack of Familiarity Are Not Factored into the Grading of the Field Sobriety Tests
Now when you’re pulled over by a officer, you’re nervous to begin with, they ask you to step out of your car and perform these maneuvers, having never rehearsed them in the past. The chances are that a sober person is not going to perform perfectly anyway. Some people are just not coordinated, but how many people can stand on one leg for 30 seconds out on the roadway with the police looking at you, facing arrest?
Sometimes it’s cold or rainy, and you’re nervous. Even if you perform it perfectly, what stops the police officer from saying you were swaying, you raised your arms, or you didn’t keep your foot up for 30 seconds? I had clients that have kept their foot up, according to the police, if they want you to hold your foot up for 30 seconds, the person who puts their foot down in 28 seconds … that’s a clue, that’s a failure.
They’re not fair tests. They really don’t do anything, and of course the police can say whatever they want without it being on video that you were swaying, you were doing all different things that maybe you were, maybe you weren’t. They are totally unfair tests.
It Is Quite Intimidating to Be Involved in a Police Stop
Interviewer: During this process, when clients agree to do this field sobriety test, do you think that there’s a certain point of intimidation that the police officers apply?
Attorney: There’s always intimidation. When you’re pulled over by an officer, he’s standing there in uniform with a gun, and they ask you to do something, most of us do what we’re told. We’re not told that we have a choice and that you can do this or not. If the police officer says, “Would you please get out of your car?” you’re going to get out of your car.
If the police office says, “I want you to walk nine steps and walk backwards,” most people will not argue. They’re going to do what the officer tells them to do. There’s nobody who voluntarily performs these tests.
There is always some sort of intimidation, or some sort of coercion. Sometimes it’s more apparent than others. It’s only after you take these tests, only after you’re under arrest already, when you go back to the police precinct that they read you from a piece of paper telling you that you have a right to refuse to take a breath test, but if you refuse to take the breath test you’re going to lose your driver’s license for a year. You’ve already done all these other things that you believed you had to do—just the same as when the officer says, “I want to see your license,” and you give it to him.