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When Will a Driver Be Asked to Undergo the Field Sobriety Tests?


Interviewer: At what point during a police stop is the field sobriety test administered?

The Officer Needs Probable Cause to Ask You to Undergo the Test

James Abate: There are a number of areas where we can attack a DWI case. The first area we attack the case is in the stop. Did the officer have probable cause for the stop? After the stop, the officer will normally come to speak to the driver and they’ll normally try to smell your breath.

They ask you to roll your window down all the way, they’ll smell your breath and they’ll ask you one question that they need to ask to get you to do the test. That is, “Have you been drinking tonight?”

If you say YES, the officer is going to usually say, “I smell alcohol in your breath and I noticed you have glassy eyes.”  Once they have that evidence, they have probable cause to get you out the vehicle and do further investigation which will include the field sobriety test.

Is Miscommunication between the Officer and Driver Possible at This Point in the Police Stop?

Interviewer: Are there some aspects of miscommunication or misinterpretation at this point? How are some ways that a police officer may miscommunicate with the driver or some ways that the driver may misinterpret what the police officer might be saying?

James Abate: I’ve taken the state police course on DWI detection and standardized field sobriety testing. I am qualified to the extent that many of the officers are out there. I know the training they’ve gone through. I know what they are supposed to say.

In fact, while we’re talking right now, I am sitting here with a copy of the student manual going through it. There are a number of ways where the officer can fail to do what they’re supposed to do. One of those ways is in the instructions.

Sometimes we’ll see in the report that the officer says that the driver raised his hands for balance. But if the officer didn’t instruct the driver before that he couldn’t raise his hand—that can result in a misinterpretation of what the officer wanted to do.

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It Is Possible for Both the Driver and the Officer to Misinterpret Instructions and Results of the Tests

This is another way where the test will not work. If the officer comes across somebody who had injuries to their knees, hips or back, the test result is invalid. The test cannot be used on someone like that. The test cannot be used on someone who is obese. There are a number of types of people who just can’t take the test and that can result in the officer misinterpreting that the person is intoxicated.

It Is Advisable for Your DUI Defense Attorney to Examine Where the Test Was Administered

The manual indicates that for the one-legged stand and some of the standing exercises the officer should administer the tests on a reasonably dry, hard, level and non-slippery surface. What we do, and a lot of firms do not, is we will go out to the scene and look at where the test was given.

What we find is frequently that the test was given under conditions where it’s not really detecting intoxication. It could be that somebody tripped on a crack in the road or they stepped on a pothole and stumbled. The report will say the driver fell or he stumbled but the reason he fell or stumbled is because the officer didn’t comply with the NHTSA requirements.

Are Most Drivers in a Police Stop Intimidated by the Officer?

Interviewer: Do you think that sometimes with the driver that there is an intimidation factor?

You Can Refuse to Undergo the Field Sobriety Tests

James Abate: There is an absolute intimidation factor. First of all, you don’t have to take the test, you can refuse the test. Now, under certain case law, there is the possibility that could be interpreted against you, held against you–but the bottom line is it is part of the evidence against you.

But the thing that really gets me and when you go out to the scene on some of these cases is where these tests are usually administered. The driver is standing on the highway on the shoulder at night with just headlights to light your way and it’s cold and there are trucks going by at 80 miles an hour.

The Field Sobriety Tests Are Usually Not Administered in an Environment Conducive to a Good Performance

The blast of the truck is almost enough to knock you off your feet, and you have a police officer with a gun there telling you to walk straight line. Even when you are just trying to listen to his instructions, it’s not just intimidating, it is also frightening. Then you are required to properly perform bio-mechanical exercise—the entire experience is very intimidating and conducive to a good performance.

Other Than Providing Basic Information, You Can Also Refuse to Answer Police Questions

Interviewer: So you are saying the field sobriety test is optional?

James Abate: It is something which you do not have to do. I guess you could say it’s optional. You can refuse, just like you can refuse to talk to a police officer. When the officer comes to your window and says, “Can you roll down your window?” you can say, “NO.”

If he says he wants to search your car you say, “Sorry I don’t consent to searches.”If he asks you to perform the field sobriety test, you can say, “Officer respectfully, I decline to perform the test. I don’t have to it. I don’t want to do it. I believe that I would fail for reasons besides being intoxicated, I am not going to do it.”

The Field Sobriety Test Is Administered to Guide the Officers Decision on Whether the Driver Needs a Blood Test or a Breath Test

Interviewer: If you take the field sobriety test, the police officer will make some sort of determination of whether you are intoxicated. Will they give you an additional test after that like a Breathalyzer or blood draw?

James Abate: Well, the field sobriety test is often used to build a basis to give you the chemical breath test or to take blood. The Alcotest is the more commonly used instrument to test your BAC—but the fact of the matter is they’re using the field sobriety test.

You Are Required to Undergo the Alcotest at the Police Station

One of the reasons I don’t like to advise people not to take the field sobriety test is they get confused. You don’t have to take the field sobriety test but you do have to take the Alcotest. If you don’t take the Alcotest, you’re going to be charged with refusal and it’s going to make defending the case a whole lot tougher.

Interviewer: Is that the same thing as a Breathalyzer?

James Abate: In New Jersey we don’t use the Breathalyzer. In New Jersey we use the Alcotest 7110 Mark 3, at least for the time being. Maybe we’ll go back to the Breathalyzer in a few years but I think for most people Breathalyzer is just a trade name that you us to describe all chemical breath evaluation tools.

You Can Refuse the Portable Breath Test Administered during the Police Stop—but It Is Important NOT to Confuse This Test with the Breath Test Administered at the Police Station

In addition to the machine they have in the station, some officers carry a portable breath test or portable Breathalyzer. That’s one which you can completely refuse to take but again, I don’t like to advise people on that.This is unless someone can clearly understand that when you get to the police station, you’ve got to take the test. But the portable breath test is inadmissible in court.

The police officer maytry to have you use the portable breath test because they are not sure if you’re intoxicated. That can work to our benefit because we can say, “If you are so sure about the standardized field sobriety test, why did you have to give him the portable test which is inaccurate?”

Get your questions answered – call me for your free, 20 min phone consultation (908) 210-9755

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