Are Physical Disabilities a Factor in the Performance of the Field Sobriety Test?
Interviewer: Have you encountered a situation when someone just takes the test but they later reveal to you that, “I have some walking problems. I have a torn ACL or ankle problems over the years.” Could that help your case even if they’ve done the sobriety test already?
According to the Test Manuel, the Field Sobriety Tests Should Not Be Administered to People with Certain Injuries or Body Weight
James Abate: Yes, the field sobriety manual states explicitly that the test should not be given to certain people. The people who should not take the field sobriety test include people who have back, knee or hip injuries or problems, people who are obese, and there are number other categories of people who shouldn’t be taking the test. If they do take the test, the results are going to be invalid.
I have, right now, three cases where the tests should not have been administered to my clients. In the first case, my defendant was involved in a car accident about 6 months before and the reason he couldn’t stand was because of the injuries it caused, not because he was drunk.
Cases Where Individuals Were Administered the Field Sobriety Tests When They Shouldn’t Have Are Defensible
If, during the test the driver notified the officerof his condition, then we will be in a good position. We will then obtain his medical records showing a documentation of his condition. In addition to that, have him meet with an expert who can advise the court that this person was previously injured and based on those injuries he would not have been able to perform the field sobriety test.
At that point the test becomes invalid. They may still have probable cause possibly, maybe not. At that point if there’s no probable cause and the whole case goes away. When someone has sustained injuries which will prevent them from taking test that can be something which is going to possibly win the case.
We also have people who no matter how much they had to drink, are going to be able to take that test. There are people could be at a high BAC and they’re still going to be able to take the test. They’re still going to be able to pass the test, they’re still going to be able to do everything the officer asks them too because they have extraordinary balance and even if they have had a few drinks their balance is still going to better than so many other people. The real problem comes with people who have the opposite; they have worse balance than the ordinary person.
Individuals 50 Pounds Overweight Should Not Perform the Field Sobriety Test
Interviewer: Is a person’s body weight taken into account?
James Abate: Based on your body weight composition, you should not be taking the test if you’re 50 lbs overweight. If you are 50 lbs over the ideal weight, you’re probably in obese range and there are argument to be made at the test cannot be administered to you. It doesn’t matter what you look like, it’s what the numbers are.
I have to say to someone “Are you obese?” I don’t want to insult them because really these are numbers that the governments comes up for who is perfect weight and who is overweight. Many people are perfectly healthy looking but yet they would fall under the obese category. At the end of the day, I am trying to keep you from losing your life. I am trying to keep you out of jail. If we have to go before the court and say that you are obese for one day then we’ll do it and we’ll repair your feelings later.
Will an Officer Ask What You Weigh before Administering the Field Sobriety Test?
Interviewer: Are the police officers ever going to weigh me or are they going to ask me for my weight or are they going to guess what it is, based on what they see?
James Abate: The officers seem to assume or seem to have not read this part of the manual. I’ve seen them give test to people who should not be given the test and they’ll deal with the legal consequences later. They’re hoping they’ll have at least probable cause.
If they don’t have probable cause from the test they’re going to find another reason to get probable cause and they’re always banking on the machine. But it’s easier to refute the machine than it is to refute a field sobriety test because it’s a judgment call, really. The harder part of the case is disproving the field sobriety test.
Does It Matter If You Are Seated or Standing during the HGN Test?
Interviewer: I want to go back to the horizontal gaze portion. Will they perform that one while a person’s sitting down or while a person’s standing up?
James Abate: No the person should be standing up when they’re given that test.They should be standing up, out of the car they should not be sitting down.
Are There Variations on the 3 Core Tests?
Interviewer: There’s a couple of test that I’ve heard of, one of them was picking coins off the ground. Do they do that as well in New Jersey?
The Results of Tests That Aren’t Standardized Are Not Admissible as Evidence
James Abate: I’ve never come across that one but there are a number of tests that aren’t part of the standardized field sobriety manual. These include singing the alphabet, sometimes saying the alphabet backwards and those are things which can go towards probable cause. But they will not permit the officer to testify that someone, in his opinion, was intoxicated.
Those tests aren’t part of the standardized field sobriety test. There are only three tests that NHTSA has said are part of the standardized battery.
Interviewer: I think the other one that’s pretty common or the one I always see on TV is touching the nose; is that one still administered?
James Abate: Yes, that one I see very now and again. They’ll have you close your eyes reach out and touch your nose, but again that’s something which can go towards probable cause—but it’s not going to be able to support evidentiary hearing.
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- Case History: Defending the Results of the Field Sobriety Test