Brian Sloan: There are five, “field sobriety tests” that are often used in Arizona. Three of them are considered standardized. The walk and turn is standardized. The Romberg modified is standardized and the one leg stand is standardized.
There is a finger-to-nose test, which is not standardized, and there is one other which we rarely see, finger counting. I think that is the one that we rarely see but, technically, it is listed as a field sobriety test. Officers will always administer the horizontal gaze and nystagmus, if they can.
Attorney Sloan’s Best Advice A Lack of Cooperation in Performing the Field Sobriety Tests Will Equal a Lack of Evidence That Can Be used Against you
Again, all of these tests require the cooperation of the suspect. If the officer wants you to do a walk and turn, and if you don’t walk, they can’t do the test. On the one leg stand, if you don’t raise your leg, the officer can’t do the test. Finger-to-nose, don’t lift your arms. Don’t point to your nose. Don’t do the test. The horizontal gaze and nystagmus, if you do not follow the officer’s pen, he or she cannot administer the test.
With the portable breath test, if you don’t blow into the machine, they can’t do the test. Most people hurt themselves, more than anything else. They admit to things they shouldn’t admit to. They do these tests which, no matter if they’re drunk or sober, the results will not be in your favor. That doesn’t mean they’re going to lose.
That doesn’t mean that they’re going to be convicted but the case becomes much better if they have not hurt themselves and, often, the officers will be very nice or will be very authoritative and scare the people and it’s amazing to talk to people and they think they have to do these tests.
I give them business cards that have information on the back that tell people, “This is what not to do when you’re stopped by police officers.” They’re surprised that they can refuse those but, again, an officer is not going to pull out a gun and forced them to do these tests, force them to provide evidence to be used against them at trial.
They have a right to remain silent. They don’t have to do any of these tests. They need to utilize their constitutional right and not be their own worst enemy.
People With Physical Disabilities Should Not Perform the Field Sobriety Tests
Interviewer: Are there any physical ailments or problems that even though someone ends up doing the tests, that will help you to defend them besides your normal, “No normal person can do these tests”?
Foe example, what if someone’s 100 pounds overweight or they have bad knees or a bad back?
Brian Sloan: Yes. The officers are trained that there are certain people who should not be given these tests. Overweight individuals should not be given these tests, if there are 50 pounds or more overweight. If they are too old, they have back injuries, hip injuries, if they have been hit in the head, if they have any mental impairment. These people should not be given these tests because it results in false positives.
What we’ve been seeing lately is people who are obviously overweight are still given these tests. They’re given these tests under the theory that the officer will question the person if they believe that there are 50 pounds or more overweight and most people won’t agree with that. Most people think that they look fine when, in reality, most people are 50 pounds or more overweight, simply because of what the standard person should weigh for that height.
People with bad backs, bad ankles, knee replacements, hip replacements, these are people who should not be given the tests. But, the officers will, in a way, trick people into doing these tests by saying, “Okay. Well, you have a bad back but does it hurt right now? Do you think you would prevent you from doing this test?”
Officers may also fake a reward for doing the tests. “Well, you know, if you do this test, the walk and turn, if you do it fine, then I’ll be able to let you go. I just need to make sure that you’re safe to drive home,” and people think, “Well, okay. The officer will be fair with me. I might as well do the test because I don’t think that I’m drunk.”
I cannot state this more emphatically. Ninety-nine percent of the time the officers going to arrest you to matter how well you do on those tests. If they have pulled you over and they suspect you of DUI, it’s very likely you’re going to be arrested. It is very unlikely that they will let you go.
How Most People View the Field Sobriety Tests
Interviewer: What do you hear from clients in regards to the field sobriety test? Do most people have the same experience?
Brian Sloan: They all think that they did fine. They all think they passed. They all think they did well and that’s actually a question that the officers will ask them after reading them their Miranda rights, “How do you feel that you did on the field sobriety tests?” and people always think they did fantastic.
The problem is that one of the tricks to the field sobriety test is that the officer has points. They have specific things that they’re looking for and that is not shared with the suspect. On the one leg stand, they tell the person, “Put your leg up 6 inches off the ground.” If the person puts it more than 6 inches off the ground or less than 6 inches off the ground, it’s a strike against them.
When the officer says, “Keep your hands at your sides,” there’s a lot of people, because of balance issues, they put their arms straight out like an airplane. To me or to them, that is the right way of doing it. They are keeping their arms at their sides.
They’re not bringing them forward. They’re not moving them around. They’re keeping them at their side like an airplane. To the officer, at the sides means no more than 6 inches from your body. That is not explained to the person.
Even though many people think that they’ve done very well at a field sobriety test, there are small variables that the officer is looking for that are not explained to the person. These include starting too early, starting before the officer says to start, raising your foot too high, raising your arms too high, not taking the exact number of turns, not turning around in the proper way, and not touching heel-to-toe every step.
There are people who wear flip-flops and they really can’t touch heel-to-toe, when they’re wearing flip-flops. They will end up tripping themselves up but it’s a strike against them. If they’re wearing high heels, a lot of these types of tests are very difficult. They are given the option of taking off their heels but who really wants to walk barefoot, or in pantyhose, on city streets?
Brian Sloan: That’s why there’s really no good reason to do these field sobriety tests because, the person will perform them poorly and the officer will make it appear as if the person did poorly because they are intoxicated.
Interviewer: What are some of the common defense issues you raise, specifically, in regards to the preliminary breath test and the field sobriety tests besides the fact that normal people can’t do them?
Brian Sloan: That is the main argument. Portable breath tests will not come in to trial. The results are not considered reliable enough, so it doesn’t come in at all. Generally speaking, the best argument is going to be that nobody can do these tests.
Bloodshot watery eyes can be due to the fact that someone has allergies or because they were crying. It can also be alcohol impairment. Slurred speech can be just the way they talk. Maybe they bit their tongue but it can also be alcohol impairment. A flushed face can also be due to alcohol impairment.
That could be allergies. That could be embarrassment. There are a lot of different reasons for what an officer might observe. The problem is, when they’re all seen together, and the one thing that’s in common is alcohol impairment or drug impairment, it kind of puts in the mind of the jurors that, “Well, yes it could be this excuse and this an allergy and this embarrassment, maybe he’s sweating profusely because he just went for a jog and that’s also why his face is flushed OR it could be alcohol.”
Whatever reason the person cannot do these field sobriety tests, most of which have to do with balance, the officer is always going to attribute it to alcohol. “You cannot balance yourself because you are drunk.”