The Young Woman and her Second Offense DUI

Why you should never take Field Sobriety Tests in a Mississippi DUI case

I have friends ask me all the time what they should do if they get pulled over and they’ve had a couple of drinks. The first thing I always tell them is to be polite and cooperative to the police officer and say as little as possible. Never answer any questions about what you have had to drink. Just invoke your 5 th amendment right to remain silent. Secondly, you should never take any so-called field sobriety tests. Lastly, you should never take the intoxilyzer test (breath test) unless you have had nothing to drink.

For the purposes of this article I want to focus on why you should never take field sobriety tests. I will use a recent case as an example. I represented a nice young lady the other day in a local city court. Fortunately the officer had video so the judge could observe her actions. She was stopped for following too closely. (I personally didn’t think she was driving too closely). Her driving was fine: no weaving, swerving, etc. She exited the vehicle fine and exhibited great coordination while standing and walking. My client’s speech was not slurred and her eyes were not bloodshot or dilated.

She agreed to take the “field sobriety tests”. For the reader’s benefit, years ago the National Highway Safety Administration (NHTSA) conducted an extensive study of all the popular field sobriety tests. After pretty exhaustive research in a controlled environment, NHTSA identified only three (3) tests which were valid indicators of intoxication. Those three are the horizontal gaze nystagmus (HGN), Walk and Turn, and One Leg Stand. Each test has a certain number of “clues”. If an officer is certified to administer these three (3) tests and conducts the tests in accordance with NHTSA criteria, the officer will allegedly be able to classify 86% of his subjects as having a BAC greater than .08%. Please note that all the testing was done in a “controlled” environment, meaning a classroom setting and not on “the street”.

Getting back to my case, the lady agreed to take the field sobriety tests. The officer was not certified to give the three tests, meaning he had never bothered to go to the class. Nevertheless, the Judge allowed him to testify. The officer testified that he first gave an “alphabet test” in which he asked my client to recite the alphabet from “E to W”. This test is not recognized as by NHTSA. My client, understandably nervous, started and stopped twice but then was able to complete the test.

The officer then administered the Walk and Turn and One Leg Stand. I have been defending DUI cases for almost 20 years and I have never seen a client do the tests so well. She was able to to walk the line twice without losing her balance or stepping off the line. She didn’t raise her arms and she ever performed the turn correctly. When I asked the officer which “clues” she exhibited he testified that he was not familiar with any clues.

On the One Leg Stand my client was able to stand on one leg and count to 30 without swaying, hopping or putting her foot down. She held her pose for so long she looked like a statute. The officer said she “failed the test” because she failed to look at her foot while counting. When I pointed out to the officer that this was not a valid clue he said he was not familiar with the clues.

So despite the fact that the lady exhibited no impaired driving or impaired speech and performed amazingly on the so-called field sobriety tests she was arrested. If there was ever a case in which the officer should have simply let someone come and pick the suspect up this was it.

If this client got arrested after doing all the tests and doing them well then why should anyone take them? Fortunately for her she was in front of a Judge who is always fair. She found my client not guilty of DUI, 2 nd offense. Yeah, that’s right she had a prior DUI so if she was found guilty she was looking at 6 months in jail. Perhaps the fact she had a prior DUI tainted the officer’s opinion? It’s hard to say but the fact remains that I’ve never seen a police officer give anyone a “passing grade” on a field sobriety test. Good thing they never became school teachers.

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