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Case History: Defending the Results of the Field Sobriety Test


Interviewer: Can you please share a case history or two about defending the field sobriety test results?

James Abate: Yes. There was a case which we handled in Bridgewater Municipal Court for DWI. The officer turned on music so loud before he got out of the car, that he was able to keep the exterior microphone from recording. I obtained the state police manual for proper use of the video recording equipment and it precludes use of personal entertainment units in the car. As a result, we were able to have all the evidencesuppressed and the case was dismissed.

The Instructions for the Field Sobriety Tests must be given in a Language Understandable to the Participant

There was another case in Clark Municipal Court where the video on the psychophysical test demonstrated that the client did not understand the directions. He spoke a different language and that brings up a whole host of different case law.

The important thing is the instructions that were given were not clear to the driver. He was putting his arms up and the officer wasn’t demonstrating the test in a fashion where he could understand what was going on. As a result, we were able to have that case dismissed.

The Environment in Which the Field Sobriety Test Is Administered Must Adhere to Criteria in the Manual

But by far, my favorite case occurred in the Clinton Municipal Court. We went out to the scene after we got the video and after we got analysis of the field sobriety test. The officer’s report said that it was a clear and bright night and that the area in front of the squad car was smooth. Well, we looked at the video we noticed that the officer didn’t give the test in front of the squad car. He took them on to the sidewalk for safety.

The area in front of his car may have been clear and smooth and flat but when we got to the sidewalk it looked like someone had dropped bombs on that sidewalk. There were craters and there were broken lines. As a result of that we were able to get everything suppressed.

To Defend a DUI, It Is Important to Retain an Attorney That Has an In-Depth Understanding of the Field Sobriety Tests

Interviewer: Is there anything else about field sobriety tests that you would like to mention?

Do You Feel Your DUI case Is Doomed because of a Poor Performance on the Field Sobriety Test? The Results Cannot Always Be Attributed to Intoxication

James Abate: I would just say that it is important to have an attorney represent you who has been trained on the standardized field sobriety test and that has taken the same test that the officer’s taken. This way, he or she can properly evaluate how the test should have been administered. There are officers that make mistakes all the time.

Some officers will say in their report that the driver failed. There’s actually a case on this called State vs. Morton. The officers can’t use the word pass or fail. There are drivers who do things wrong in the test but the reason they did something wrong in the test was not because they were intoxicated.

It is because the officer did not properly give instructions on how to take the test or gave incorrect instructions on how to take the test. Finally, there are just people who should not take the test for physical reasons and if and finally, if you vary on any of the requirements of the test, the results are invalid.

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