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Creating reasonable doubt about the DUI field sobriety tests
DUI field sobriety tests are coordination tests
Field sobriety tests are coordination tasks, such as walking a line heel-to-toe, picking up coins, and finger-to-nose dexterity. Usually, the officer asks you to take one or more of these field tests, and he then reports that you failed each test. The tests are usually given at the scene of the arrest where the lighting and road conditions may be poor, and are given at a time when you are both upset and frightened.
If you have “failed” one or more field sobriety tests then your attorney may attempt to create a reasonable doubt about the tests by pointing out the conditions under which the tests were given, the subjective nature of the tests, and the inherent difficulty of some of the tests.
Sample cross-examination of an arresting officer about DUI field sobriety tests (three tests)
Generally, your attorney will not want to dwell on the field sobriety tests too long. It is usually best to attempt to make a point that could lead to some reasonable doubt and then move on. In this area, digression is better than aggression.
The following is a sample cross-examination of an officer on a field sobriety test:
Q: Officer, you gave three field sobriety tests to the defendant, correct? A: Correct.
Q: And you testified that after he failed the first test, a walk-the-line test, you felt he was intoxicated? A: Yes, I was sure he was.
Q: Yet you continued with two other field sobriety tests? A: We always give three tests.
Q: But you have already testified that you were certain he was intoxicated when you asked him to perform the second test? A: Yes.
Q: And you also were sure he was intoxicated when you asked him to perform the third test? A: I suppose that’s right.
Q: So, Officer when you gave him the second and third tests, you had no doubt in your mind that he would fail those tests? A: I thought so, yes.
Q: And, in fact, wouldn’t you have been somewhat embarrassed if he had passed either the second or third test? A: I don’t know what you mean.
Q: Well, you had already concluded that he was intoxicated after the first test; if he had passed the second or third test, it would have proven you wrong, isn’t that correct? A: Not necessarily.
Q: Officer, you, and you alone, decide who passes this test isn’t that correct? A: Yes, well, I was the only one there.
Q: So, it’s fair to say that it was your opinion based on your interpretation of the tests, rather than any objective criteria, that lead you to conclude that the defendant was intoxicated? A: Yes, it was my opinion.
These questions point out that the field sobriety tests are subjective and that the officer is likely to read into the test what he wants the results to be. The officer who gives the tests is the same officer who pulled the defendant over, and arrested the defendant. It is unlikely that this officer will be unbiased when grading the tests.
Sample cross-examination of an arresting officer about DUI field sobriety tests (one test)
If the officer only administered only one field sobriety test, your attorney might point out that there are other tests that could have been given and that the officer was perhaps too quick in his judgment:
Q: Officer, you stated that you asked my client to touch his finger to his nose with both his right hand and then with his left hand? A: That is correct.
Q: And that was the only coordination test given to my client? A: Yes.
Q: Officer, you are familiar with a field sobriety test which consists of a walking a straight line heel-to-toe? A: Yes, I am.
Q: And in fact, you often use that field sobriety test to determine whether someone is under the influence? A: Yes, sometimes.
Q: And, officer, you are also familiar with a field sobriety test where a coin or several coins are thrown on the ground and the defendant is asked to pick them up? A: Yes, I am.
Q: And that field sobriety test is to test manual dexterity? A: Yes, I suppose so.
Q: And, officer, you often use that coordination test to determine whether someone is under the influence? A: On occasion, I have, yes.
Q: Officer, you are also familiar with the field sobriety test where you ask the defendant to recite the alphabet? A: Yes, I am.
Q: And you’ve, on many occasions, requested someone to take that test to determine whether he was under the influence? A: Yes, I have.
Q: And there are perhaps five or six other field sobriety tests that you could have given to the defendant, isn’t that correct? A: I suppose so.
Q: But the only test you gave the defendant was the finger-to-nose test? A: Yes, that’s all I thought that was necessary.
This cross-examination suggests that the officer was hasty in his judgment and did not give the defendant a chance to establish his sobriety. The defendant was nervous and upset and immediately confronted with a test he had never taken before. If the officer had allowed the defendant another chance or two, the initial nervousness would have worn off and defendant would have done fine. The officer, however, robbed the defendant of that opportunity by unnecessarily limiting the number of coordination tests.