Should I submit to DUI field sobriety tests?

My name is Gordon Thompson and today is July 13, 2016. The topic for today’s podcast, is should I submit to DUI field sobriety tests?


First of all, if question is, should I have submitted to DUI field sobriety tests, meaning that I’ve been arrested and I’ve either done the tests or not done the tests, was that the correct decision? Well the answer is it doesn’t make any difference. Whatever happened, it’s the responsibility of your lawyer to make the best out of whatever happened. So if the question is should I have done them in the past, it doesn’t matter.


If the question though is, if for some reason I am stopped on the suspicion of DUI should I do the field sobriety tests, then that’s a question without a clear answer.


In Arizona an officer has the right to ask people to do field sobriety tests if they have a reasonable suspicion the person is driving under the influence. Reasonable suspicion is a very low standard and it does not take much to meet that standard; so if an officer stops somebody and asks them to do field sobriety tests, the person’s thought at this stage should be, does the officer at least in their mind have a reasonable suspicion that I’m under the influence.


In Arizona the police have a right to ask people to do field sobriety tests. A person has the power to refuse to do the tests but not the right to refuse. What I mean by that is, no one can physically make somebody stand on one leg or walk on a line, or to touch their nose, and so you can’t physically be forced to do the tests, so you had the power to refuse to do the tests. However there was no legal or constitutional right that says you can refuse to do these tests and so the significance of refusing to do the tests is, number one, to be arrested. There is no question that if an officer thinks that they have reasonable suspicion the person is driving under the influence and the person refuses to do the tests they are going to be arrested, and that refusal is part of the evidence which could be used to justify the arrest. So the first thing is, if you refuse to do the tests you will be arrested.


The second point is that since you do not have the right to refuse to do field sobriety tests if there is a trial the prosecutor can bring that fact to the attention of the jury, namely the person refused to do the field sobriety tests, and try to infer from that why refuse the field sobriety tests if they thought they were innocent. That’s something that the Arizona courts have said that the prosecutors can do, they can argue about a person’s refusal to do the field sobriety tests.


So these would indicate two reasons why a person should not refuse but rather to do the field sobriety tests.


Now having said that occasionally people do extremely poorly on field sobriety tests for such reasons as having had too much to drink and can’t do these tests at all, and then maybe it would be a better thought to refuse to do the field sobriety tests, although it’s difficult to make that decision when somebody’s had a lot the drink or ingested drugs that are impairing them from making a rational decision about whether to do the tests are not.


My experiences with jury trials is that field sobriety tests many times help the defendant. The reason I say that is that, first of all, one of the tests the police and the prosecutors love is called the HGN or horizontal gaze nystagmus test, where an officer testifies that they’re trained on how to do this and it’s a very reliable field sobriety test, and simply by looking at the person’s sideward movement of their eyeball they can come to an opinion as to whether they think the person’s alcohol level is above or below .08%. Prosecutors and police love this test and think it’s a great test. My experience is juries do not really put much weight on the HGN test. Each juror is of course an individual and everybody’s different but at many trials it appeared that the jurors just simply ignore the HTN, the testimony about that test , and so I personally do not think that testimony about the HGN is really that big of a deal.


Now as to the other tests, for example the walk and turn test, is one of my favorites. I say that because what the prosecutor and the officers will say is, if somebody has two or more indicators that are bad on the performance of that test, that it indicates “a failure”, is a most common way to put it. For the walk and turn I once counted up about 108 ways somebody can do something wrong; and if they do for example 106 of those correctly, but do 2 wrong, well then according to the prosecutor and the officer that means a failure. For example: the walk and turn test consists of in part doing 9 steps out, 9 steps back, touching heel to toe, arms down at the side, and staying on the line. So if somebody does the tests entirely correctly except for, on 1 step, steps slightly off the line and does not touch heel to toe, that’s 2 things wrong.  Everything else can be perfect, 106 of the 108 points can be perfect but because of those 2 the prosecutor will try to argue the person failed the test. I think that the average juror can relate to the performance on the field sobriety tests and it may seem like the police and prosecutors are way overreaching when they describe that as a failure. So the performance on the walk and turn test can call into question other parts of the State’s testimony. So on balance I think field sobriety tests can help the defendant.


Having said that I certainly have done trials where there were no field sobriety tests and that led to questions about really how reliable was the blood or breath tests, if the field sobriety tests are not there to corroborate the blood or breath test.


So it can go both ways. In short there really isn’t a clear answer to the question, should I submit to DUI field sobriety tests. Just keep in mind that should you end up in the situation of being asked to do field sobriety tests, if you do refuse, number 1 you can be arrested and number 2, at a trial the prosecutors are going to argue that refusal.


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