I Want You To Step Outside of the Car and Do Some Tests

Last month, I posted an article on "Have you been drinking tonight."The next question that DUI police officers ask is I want you to step outside of the car and do some tests. Should a citizen under suspicion of drinking and driving agree to do the field sobriety tests ? Your answer should be a polite no thank you. Here are a few reasons why you should say no thank you.

  • The field sobriety tests are one of the main building blocks of a DUI prosecution.
  • The field sobriety tests are patently unfair. They are used on all types of folks from 18 to 80. Weight and physical problems are not factored into the equation.
  • The original data from the studies which lead to the creation of the field sobriety tests have never been peer reviewed.
  • Under Tennessee law, the field sobriety tests are not scientific tests.
  • Under Tennessee law, a defense attorney cannot cross examine an officer using their training materials.
  • it is simply based on the police officer's opinion.
  • The scoring is unfair. On the walk and turn test there are eight clues. if you have only two clues present, you fail.
  • The horizontal gaze and nystagmus  is inadmissible under current Tennessee law.
  • The Tennessee Supreme Court has ruled that even if you pass the field sobriety tests you can still be arrested for driving under the influence.

These are just the highlights of why you should saw no thank you when requested to do some field sobriety tests. as I was writing the post, I was reminded by a saying my father used to say. " I might cut my own throat but I am not going to supply the razor." Don't supply the razor

 

Why You Sholdn't Do Field Sobriety Tests ?

In most Tennessee drunk driving cases (DUI) , the police ask you to do some field sobriety tests. Most folks want to cooperate with the police and they try to do them. You just made the wrong decision. There are several reasons why you should not do the field sobriety tests ;

  • Under Tennessee law a citizen is not required to give evidence against themselves when asked to perform field sobriety tests.
  • The field sobriety tests are not scientific tests under Tennessee law.
  • Since they are not scientific tests , they are judged subjectively. Meaning , a police officer makes the decision.
  • Test conditions affect the field sobriety tests. Was the test surface level , lighted properly, and dry ?
  • Shoes with heels two inches or higher can affect the test.
  • Folks over 65 may have a hard time doing the tests.
  • Folks overweight may have a hard time doing the tests.
  • Medical conditions such as leg problems , old broken bones in your leg , back problems , inner ear problems are just to name a few.
  • Some argue that their is a gender bias in the field sobriety tests and are unfair to women.

Once a police officer smells alcohol on your breath or you admit to having two beers , your going to be arrested for a DUI. You can't talk your way out of it . You can't walk the line out of it. Exercise your constitutional rights and do not give the police evidence that can be used in court against you.

Tennessee Supreme Court Grants Appeal on Field Sobriety Tests

             

The Tennessee Supreme Court has decided to hear an appeal in a DUI case. The issue involves the Field Sobriety TestsDavid Bell was stopped and he agreed to do some field sobriety tests to see if he was driving under the influence of alcohol. Mr.Bell passed all 6 tests.  Police  were still  not satisfied and arrested him for DUI and made him submit to a blood test which came back over the legal limit of .08.Later the trial court threw out the arrest because he passed the field sobriety tests which was upheld by the Tennessee Court of Appeals. I expect the Court to reverse the prior rulings.

First , the Court is eroding all citizen protections on search and seizure issues. While this case is not a true search and seizure issue under the Fourth Amendment , it does hold that the police should have some evidence in order to arrest someone. My guess is the Court will rule the bad driving and the smell of alcohol is enough to arrest. However , the question is the validity of the standardized field sobriety tests. Once one reads the studies , it does not determine if someone can operate a car safely of determine impaired driving, it only gives an officer some data if their blood test is over .08 BAC. Even then , the field sobriety tests have a huge margin of error.

So what should a citizen do if asked to do field sobriety tests ? Refuse them all. Your stopped for suspicion of DUI. Why give the police any evidence ? Field sobriety tests are voluntary. Exercise your rights. Stay tuned for the Court's ruling.

The Third Problem With Field Sobriety Tests

Here's a video , I created some time ago.It illustrates the third problem with field sobriety tests. While your looking at the screen shot of the video , you might be thinking to yourself why is  he holding a women's shoe . Trust me . I am not Coach Ryan with a foot fetish. The video shows a great point of a  failed  DUI  investigation.Women today wear crazy heels when they go out. Your shoes can effect the field sobriety tests.

According to VIII-11 of the February , 2006 Edition of The DWI Detection and Standardized Sobriety Testing student Manual., " Individuals wearing heels more than 2 inches should be given the opportunity to remove their shoes.It can be a Catch-22 for the client.Take off the shoes and your walking barefoot on the roadway under varying conditions.Don't take off your shoes and you are doing field sobriety tests on stilts.This is the third problem with field sobriety tests in drunk driving cases in Tennessee.

One last thing, I invite you to place any question you might have in the comment section.I will try to answer it if I can . 

The Second Problem with Field Sobriety Tests

I was planning on writing this post yesterday. However, a hearing in Smyrna General Sessions court and Mother Nature with a blast of snow left me on the interstate for hours with most of everybody in Nashville. The second problem with the field sobriety tests is that not everybody is  the same age. As discussed in the first post, the validation studies of the field sobriety tests conducted by Southern California Research Institute (SCRI) on the behalf of the National Highway Traffic Administration (NHSTA) are unreliable.

Steve Rubenzer has written several articles on numerous problems with the field sobriety tests. One more problem is the age factor. As you age, you are not as nimble or athletic as you were in your twenties. If you look at my golf swing, I can't flex now as I did when I was younger. In the 1981 NHSTA study of the validity of the field sobriety tests, you would think they would get a big cross section of people with different ages.  When SCRI and NHSTA did the validation studies in 1981, only 3.1% of the people used in making sure the field sobriety tests were accurate were over 55 years of age.

The best DUI defense starts with a understanding of the basics of field sobriety tests. Further, one needs to know how the field sobriety tests effect their client. Here's my point, according to NHSTA's own studies those over 65 should not be required to take the field sobriety tests. That's the second problem of the field sobriety tests in Tennessee.

The Problem With Field Sobriety Tests

               

Who made the field sobriety tests the primary means of detecting driver impairment to alcohol in Tennessee DUI cases ? The answer is your government.Beginning in the 1970's research studies were sponsored by the National Highway Traffic Safety Administration (NHSTA). NHSTA contracted with the Southern California Research Institute (SCRI) to determine which roadside field sobriety test were the most accurate.The field sobriety tests were designed to be standardized so the tests would be the same in Nashville,Tennessee or Franklin , Tennessee.

There are limitations on the field sobriety tests.Last Sunday most Americans were watching the Super Bowl . Professional athletes who are in tip top shape and train everyday.Where did they perform these football feats. On a perfectly level playing field.The DWI Detection and Standardized Field Sobriety Testing  2006 Manual  requires the Walk-and-Turn test and the One-Leg Stand test be performed on  a reasonably smooth , level surface. If the "tests" aren't done according to design they provide no information to the court or the jury.Therefore , the field tests should be inadmissible.

Today , I reviewed a case where the field sobriety tests were done outside my office on Second Avenue in Nashville.The slope is tremendous.Based on my personal knowledge , the tests were done almost on a hillside.That test is flawed from the start.

So what does a experienced  DUI lawyer do ? Grab a level.Go to the scene.Fight the test for it's flawed basis. The image in the post depicts the perfect location for the field tests. It's inside.