Interviewer: Could one ever argue that the weather condition contributed to the performance of an individual as far as maybe the roads were wet and maybe it was a pretty windy day, could that ever be argued?
Fred Dry: The instruction for the police officer that is conducting these tests is that it needs to be done on a flat and level, dry surface. I’ve seen it where the video recording shows the ground is wet with puddles. We always make the argument that this is not what the test is supposed to look like. At best, when you have that kind of condition, the performance is going to be less than perfect. The wet conditions under which you are being asked to do it is not what the training manuals tell the police officer to do.
A Wet or Slippery Surface Cannot be Considered a Good Location for Field Sobriety Test Procedures.
But I have also seen where the police officer will say “I didn’t do the field sobriety tests because it was wet, I took the person to the police station and asked them to do it there”. Because they’ve already arrested the driver there’s no real reason for the person to take the tests as they are not being used to justify the arrest. The police officer knows that he shouldn’t do the testing in the wet. If he does take you in for DUI without doing field sobriety testing, I would, as your lawyer, present that fact to challenge the arrest and argue the lack of evidence of intoxication justifying the arrest.
Typical Medical Conditions Affecting Performance in Standard Field Sobriety Test Procedures.
Interviewer: Are there any particular medical conditions that someone should inform their attorney about that could help their case?
Fred Dry: If they have any medical condition that affects their walking or balance, whether physical or mental, especially if it’s not a visible defect. Some people have hip implants and to the ordinary person they look like they walk fine. But when their walking is being criticized, then their lawyer should know and the courts should be made aware of the fact that the person had this type of surgery. That it may affect their gait, it may be an imperfect gait without any kind of alcohol or drug in their system. People have knee surgeries or ankle surgeries or foot surgeries, where their medical conditions are corrected but their gait and the way they walk is still not perfect and it can affect the Field Sobriety Test performance.
Physical Impairments or Surgeries May Cause a Person to Perform Poorly on a Field Sobriety Test.
Sometimes they can’t balance on one foot regardless, they just don’t have the ability. I one time had a client who had been a paratrooper and he had broken each of his legs twice and he wore braces on both of his knees. When the police officer gave my client his field sobriety tests, they didn’t give him any consideration. He was told about these problems, but the police officer just graded his performance against what would be a perfect performance. Obviously, this person couldn’t be perfect because he had imperfect legs. But the police officer made no allowance for that.
Obesity Can Also Adversely Affect the Performance of Field Sobriety Test.
Interviewer: If someone is overweight; does that ever become a factor?
Fred Dry: It does, the manual says for the one leg stand you should be less than 50 pounds overweight. They say that at 50 pounds overweight, it’s going to affect your ability to perform the test. I maintain that people who are significantly overweight and 50 pounds certainly is so significant, that it is going to affect your balance. These tests, the walk and turn and the one leg stand are definitely dependent on your ability to balance.
Senior Citizens May Also be Asked to Perform in Many Field Sobriety Test Procedures.
Interviewer: Are these tests given to senior citizens?
Fred Dry: The police will give it to whoever happens to be the driver of the car they are stopping if they think they are drunk. However, the training manual of the National Highway Traffic Safety Administration says that individuals over 65 years of age or people with bad legs or inner ear problems have difficulty performing these tests. It is also saying that people who are wearing heels, that are more than 2 inches high should be given a chance to take those shoes off, because similarly to other things, high heels effect your ability to do these tests.