Interviewer: Why would a police officer administer the DUI field sobriety test to an obviously intoxicated driver?
Fred Dry: Because this is a standardized way of making a judgment. After you’ve administered, performed, or witnessed the performance of these tests a significant number of times, you can see the differences in how people perform and it just gives you a context within which to judge it. If you just had a video of somebody walking between their own car and the police car it might not be as persuasive as if you put it in a certain context. The DUI field sobriety test, in a sense, is like a yardstick. It’s hard to exactly judge 3 feet, but if you have a yardstick, you can easily judge 3 feet. That’s what the field sobriety tests do. They put this conduct into a context that people are familiar with. They have a reference by which to judge it. They generally favor the prosecution because some people cannot do the exercises even when sober.
The DUI Field Sobriety Test Actually Resembles a Checklist Which Provides Clues to the Extent of Impairment
Interviewer: Does this become like a checklist rather than a test that a police officer would use?
Fred Dry: That’s basically what it is – they put you into this context, they have you do these DUI field sobriety tests, and they rate your performance. When they report things you didn’t do the way they asked you to do them, they are called “clues” of intoxication. When they ask you to take nine heel to toe steps for the walk and turn and you did 8, they’re going to say, I asked for 9 and the person did 8 steps. That is a clue. They are going to suggest the reason for the variance was because you were drunk and you didn’t pay attention, you couldn’t remember. It’s a context, it’s a picture frame. The range of things that you could see in this context and then you’re able to place this particular performance on that scale.
The Process of Utilizing DUI Field Sobriety Tests as Prosecutorial Evidence in a drunk driving Case
Interviewer: How is this standardized field sobriety test going to be used against someone in court?
Fred Dry: The police officer comes to court and testifies that he asked the person to do field sobriety tests. He will describe the instructions that he gave the driver and then say this is what the person did and they will describe the imperfections or clues. They will say, for example, I asked for 9 steps (which they always do) and the person gave 8 or 10. They’ll say the driver made a turn in the walk and turn that the police officer didn’t describe. They will say that the driver didn’t touch their heels to their toes each time. The police officer will recite that and they make notes of these things as you’re doing the tests. The police officer will tell the court all the reasons that he believes you were drunk and it’ll include the field sobriety tests’ imperfections.
The Frequency of Inaccuracies in Administration of the Field Sobriety Test
Interviewer: Have you noticed in your experience that sometimes police officer will be inaccurate and if so how often does that happen.
Fred Dry: I don’t think I’ve ever seen a perfect administration of field sobriety tests. Some may come real close, but unless they give the instructions in the exact words that they were provided in their training manual, there is room for misunderstanding affecting performance of the tests. I know that they don’t take it seriously enough in most cases. Sometimes, it seems they are more interested in making arrests than they are in being fair to the motorist. When rating the driver’s performance, the police tell the court and prosecution about even the smallest deviations from the instructions the officer reports that he gave.
The Standardized DUI Field Sobriety Tests Are Not Easy to Perform Even When Sober
Interviewer: What are the most difficult exercises for the individual to perform.
Fred Dry: Everybody has difficulty with the walk and turn and the one leg stand. Some people have more trouble in one than the other. But even sober, they are not easy things to do. If for no other reason you’ve never done it before or its midnight and you’ve been up since 6 o’clock in the morning or you haven’t had a good meal all day long or you have a problem with your knee or your balance isn’t good because you have a head cold or a million other things everybody has. You might have had a drink. Usually one drink doesn’t make anybody drunk, but that could be one out of many factors that go into how you perform any tests. These exercises are not easy to do, not at all. A talented and skillful DUI attorney can make sure that the facts which are consistent with innocence are part of what the court considers in resolving the case.