Personal Health Issues & DUI Field Sobriety Tests
The most common one would be if a person is significantly overweight. Significantly would be 50 pounds or more. In fact, the instructions are if the person is 50 pounds or more overweight, they shouldn’t be doing the one-leg stand test anyway. The field sobriety tests in general are demonstrated in a trial by an officer. Usually, the officers are fairly young people doing it, in great physical shape, and trained in how to do these tests and have done them repeatedly so it makes them look, at least when demonstrated by the officers, very easy to do.
However, particularly as we get a little bit older, everybody has aches and pains and various physical problems that can come into play which were not anticipated when these tests where designed and certainly they can have a performance on the test, problems with knees or ankles, things that are just normal as someone gets older that certainly influence the outcome of the test. That’s why in terms of drawing a conclusion the person is impaired, I don’t think the physical field sobriety tests are an accurate indicator because it can’t take into account all of these physical factors.
Can a Person Refuse to Perform the Field Sobriety Tests?
Yes. There’s no requirement that a person submit to the field sobriety tests. As a matter of law, the only problem with that is if there’s a trial, the state can comment on the person’s refusing to do the field sobriety tests. I don’t think it’s a big deal, but the only drawback is that the state can bring up the refusal as evidence against the person.
Would Anything Possibly Make Someone Totally Exempt from Having to Take the Standardized Field Sobriety Tests?
In terms of the physical tests, yes. I have a client right now who has palsy. He’s in a wheelchair. Clearly he’s not going to be able to do the physical test. The exception I make is the HGN test unless for some reason somebody has, and knows they have, natural visible nystagmus. A small percentage of the population does. It’s about 2% or 3%. It would make them exempt from doing it, or if they have a glass eye in one eye exempt from the HGN test. Other than that, there really wouldn’t be a basis to say somebody’s exempt from doing the test.
Having said that, it’s always a conclusion on the officer’s part. If the officer says, “Well, because of my concern about your physical problems, I’m not going to do the test.” That’s certainly fine. Sometimes that works to our advantage. Then in that case, of course, the officer couldn’t say the person refused to do the test. It’s always the officer’s call and, as I say, sometimes having the officer say he or she chose not to have the person do the field sobriety tests can help us.
Are Field Sobriety Tests Admissible in Court?
Yes. Any field sobriety test is admissible in court. What the officer can say about those is limited. With the HGN test, if there’s no alcohol test to correlate, or corroborate the results then he or she is limited to saying, “I saw a neurological dysfunction, one cause of which could be alcohol.” The performance of the test is admissible. The walk and turn and one-leg stand the same thing. Certainly the results are admissible. The conclusions are limited to saying, “the person failed if”, in fact, that’s what the officer says versus trying to correlate it against the alcohol level.
Do You Recommend that a Motorist Contact an Attorney Prior to Performing Field Sobriety Tests?
In Arizona, someone does not have the right to contact an attorney prior to doing the field sobriety tests. The reason for that is the right to contact an attorney has been set in an Arizona by the Arizona Supreme Court’s Rules of Criminal Procedure. It’s a fairly stringent requirement that the person has the right to consult with an attorney. That right does not begin until they’re placed under arrest. For the field sobriety tests, they’re not under arrest and therefore at that stage they do not have the right to contact an attorney.