Report Physical Conditions That Interfere with a Field Sobriety Test

Field sobriety tests are notoriously unreliable. There are a number of physical and medical conditions that can interfere with the tests, causing a police officer to believe you are intoxicated even if you haven't had a single drink. Field sobriety tests are voluntary. If you are concerned about conditions that might interfere with the test, you can report those conditions to the officer at the scene. If you attempt the field sobriety tests and fail, you still have an opportunity to challenge them at trial.

Steps

Refusing a Field Sobriety Test

1. Remain calm and comply with the officer. Anytime you're pulled over, avoid making the situation confrontational from the start. Remind yourself that the officer is simply doing their job. Avoid saying or doing anything that makes the officer feel threatened.
   • Generally, things will go more smoothly if you treat the officer with respect. If you have questions to ask, try to do so in a non-confrontational manner.
   • For example, you might say "Excuse me, officer, but I was wondering if you could explain why you pulled me over?" Avoid implying that the officer is picking on you, or insisting that you did nothing wrong.
   • If you don't understand the officer's answer, simply say you don't understand and ask for clarification. This is less antagonistic than saying something like "That doesn't make any sense!"
   • You also want to caution anyone in your car to remain calm as well. Remind them not to make any sudden movements or act disrespectful.
2. Tell the officer you aren't willing to take a field sobriety test. The officer may ask you in such a way that makes you think you have no choice. However, you are within your rights to refuse to take a field sobriety test.
   • If the officer asks you to step out of the car, you should comply with this request. However, if the officer indicates that they want you to perform field sobriety tests, you can say no.
   • Keep your refusal direct and respectful. For example, you might say "I understand field sobriety tests are voluntary. I don't feel comfortable completing those exercises right now."
   • The officer may phrase the question in such a way that you can simply say "no." If that's an option, that's all you need to say.
3. Explain your reasons. Let the officer know of any physical conditions that you believe will interfere with the field sobriety test. If the officer is willing to make arrangements to eliminate the problem, you can choose whether to take the field sobriety test at that point.
   • When you tell the officer you're not willing to take a field sobriety test, they may ask you why. This gives you the opportunity to explain yourself.
   • Be honest with your reasons. It can harm your case later if you say something that turns out to be untrue. For example, if you say you have an inner-ear infection that affects your balance when you don't, you appear dishonest and untrustworthy.
   • The officer may press you on why you believe the condition will interfere with the field sobriety test, or otherwise try to pressure you into taking the test. Remember that you are within your rights to refuse, regardless of what the officer says.
   • This also is true if the officer provides a way to eliminate the condition. For example, if you don't believe you can walk heel-to-toe in a straight line because you're wearing heels, and the officer says you can remove your shoes, you still can refuse. It's okay if you don't want to walk barefooted on the public street.
4. Understand that this may mean a trip to the station. If the officer is convinced that you are drinking and driving and you won't take a field sobriety test, the officer may decide to arrest you. Once at the police station, you will be given a blood test to measure your blood-alcohol level.
   • Instead of field sobriety tests, the officer may decide to give you a breathalyzer. Or they may decide to arrest you and administer a blood test at the station.
   • Keep in mind that even before you're formally arrested, you have the right to remain silent. The officer may ask you questions to determine where you were before you were pulled over, or what you were doing.
   • You do not have to answer these questions – and shouldn't if you're worried the answers will incriminate you. For example, if you are returning with a bar where you went to celebrate a friend's birthday, don't tell the officer that.
   • Understand that you aren't being arrested for refusing to attempt a field sobriety test. You have the right to refuse. The officer must have some other reason (also known as "probable cause") to believe you are driving under the influence before they can arrest you.

Fighting to Get the Charges Dismissed

1. Evaluate the evidence against you. If you were charged with a DUI based solely on a failed field sobriety test, the physical conditions that interfered with that test may carry more weight. However, your case may be more challenging if the failed field sobriety test is supported by additional evidence of your intoxication.
   • After you're charged, you have a right to any evidence that the prosecutor intends to use against you. This includes police reports or any statements made by the arresting officer.
   • You can use this evidence to uncover weaknesses in the prosecution's case. If there is very little evidence that you had been drinking, you may be able to convince the prosecuting attorney to drop the charges against you.
   • For example, suppose you failed a field sobriety test, but you have a neurological condition that makes it difficult for you to complete many of the tests, regardless of whether you've been drinking.
   • The officer pulled you over after your car swerved. However, you were swerving to avoid hitting a kitten in the road. The officer did not observe any of the common traits of drunkenness: your eyes were clear, you weren't slurring your speech, and you didn't smell of alcohol.
   • In that case, the prosecuting attorney may be more amenable to believing your story and offering you the opportunity to plead guilty to a lesser offense.
2. Line up expert witnesses. If you personally have a physical or medical condition that you believe interfered with the field sobriety test, testimony from your doctor or another medical professional can help solidify your case.
   • Once you have a medical professional who is prepared to testify that the field sobriety test results cannot be trusted in your case due to your physical or medical condition, the prosecution's case weakens.
   • Some medical conditions, such as acid reflux or diabetes, also can influence the results of breathalyzer tests. If the officer gave you a breathalyzer after you failed the field sobriety test, these factors may come into play.
   • Keep in mind that not only do you need experts to testify regarding your condition, they also must be able to explain how that condition would interfere with the field sobriety test.
   • Generally, it's important for your witnesses also to be able to explain that despite the fact you were unable to pass the field sobriety test, your condition did not interfere with your ability to operate your car safely.
3. Negotiate with the prosecutor. At any time prior to trial, you can discuss the charges against you with the prosecutor. This negotiation is commonly referred to as plea bargaining, because it generally involves you agreeing to plead guilty to a lesser charge.
   • Typically you'll have an attorney in a criminal case, but there's no reason you can't negotiate with the prosecutor on your own. However, you'll generally come out better having an attorney on your side to conduct the negotiations.
   • If you have significant evidence that you can use to challenge the field sobriety tests, the prosecutor may decide it's not worth it to take the case to trial – particularly if there is no other evidence of your intoxication.
   • However, don't take it for granted that you can get your charges dismissed, regardless of how strong your evidence is. Having DUI charges dismissed is incredibly challenging, even if it's your first ever brush with the law.
4. Consider completing any required programs in advance. There may be driver safety or responsibility classes that are required in your jurisdiction for anyone convicted of either DUI or other serious moving violations.
   • The prosecuting attorney may even tell you about these programs, or require that you complete them as a condition of reducing or dismissing the charges against you.
   • You also may be required to be evaluated by a substance abuse professional. You probably want to talk to someone anyway if you were drinking and driving, or if you have problems with alcohol and need help and support.
   • Keep in mind that taking these classes or getting an evaluation typically will end up costing you several hundred dollars. However, that's still a lot less than you could pay if you were convicted of drunk driving.
5. Be open to pleading guilty to a lesser charge. If there is scant evidence of your intoxication apart from questionable results on a field sobriety test, the prosecutor may be more willing to work with you. However, you probably still will face other charges for your irresponsible behavior while operating a motor vehicle.
   • Keep in mind that even if you're able to get the DUI charge dismissed, any other charges regarding the way you were driving usually stand. This means you may end up having to plead guilty to those other charges, even if you have a decent defense.
   • Typically, a prosecuting attorney may be willing to allow you to plead guilty to reckless driving if the evidence against you is particularly weak.
   • Reckless driving carries its own stiff penalties, but generally is not as bad as having a DUI on your record.
   • However, many prosecutors are willing to risk a not-guilty verdict at trial rather than plead down a DUI charge. This is particularly true if you were driving in a particularly unsafe manner, were involved in a traffic accident, or endangered the physical safety of others.

Raising Issues at Trial

1. Hire a private criminal defense attorney. When you are charged with a crime, you're entitled to an attorney. You may be appointed a public defender if you have little income or assets. However, a private attorney typically is worth the cost if you plan to challenge the results of a field sobriety test.
   • Keep in mind that public defenders carry heavy case loads and may not be able to commit the time and energy to your case that would be necessary to successfully demonstrate physical conditions that interfered with the field sobriety test.
   • You typically can find an attorney referral program offered through your state or local bar association to help you identify attorneys best suited to represent you.
   • Some of these programs can be found on the bar association's website. You'll have to answer a few questions to be matched with potential attorneys.
   • Research an attorney thoroughly before you decide to hire them. Make sure they have a good reputation and experience working in the city or county where you've been charged.
   • Most criminal defense attorneys offer free initial consultations, which can help you evaluate an attorney and decide whether they're right for you. Ask plenty of questions to determine whether the attorney understands your goals for the case and is willing to fight for you.
2. Cross-examine the prosecution's witnesses. The prosecutor typically will call the officer who arrested you to testify at trial. Since field sobriety tests rely on subjective observations of the officer at the scene, careful cross-examination can expose weaknesses in the officer's testimony.
   • You might ask the police officer about the weather conditions when you performed the field sobriety tests.
   • For example, if high winds were blowing dust in your eyes, this could have caused your eyes to be bloodshot as well as decreased your ability to smoothly follow the officer's finger with your eyes in one field sobriety test.
   • If you mentioned any conditions at the scene, and the officer convinced you to take the field sobriety tests anyway, you can bring this up on cross-examination. Even though the officer said they would take that condition into account, they may not have or may not have known how to do so.
   • Officers generally are trained not to administer certain tests, such as the "one leg stand," to people over the age of 65, or who are more than 50 pounds overweight.
   • These conditions can limit a person's ability to successfully complete those tests. If either of those conditions apply to you, question the officer on their training and why the officer gave you those tests despite knowing they were problematic.
3. Call your own witnesses. If there were passengers in your car when you were pulled over, their observations may contrast with the officer's. You also may want to call expert witnesses if you are arguing that the results of the field sobriety test were skewed by a physical or medical condition you have.
   • Your own witnesses can help establish physical conditions that interfered with the field sobriety tests, as well as explain why those conditions could result in your inability to successfully complete the tests.
   • Physical conditions don't necessarily have to relate to you personally – they could be conditions at the scene. In these cases, anyone else who was present can support your story that those conditions were to blame for your failed field sobriety test.
   • Keep in mind that any witnesses you call also can be cross-examined by the prosecuting attorney.
4. Be prepared to take the stand yourself. When you are charged with a crime, you always have the right to remain silent. However, if you're challenging the results of a field sobriety test because of interference by physical conditions, it may be helpful to describe those conditions yourself.
   • Your testimony may be necessary if conversation at the scene between you and the officer is at issue, or if you were unable to successfully complete the field sobriety test due to temporary conditions at the scene.
   • If you don't have any additional eyewitnesses, however, your testimony might not be advisable. In that situation, it would essentially be your word against the police officer's, and the jury will almost always side with the police officer.
   • Your attorney will discuss with you the pros and cons of testifying yourself. Your attorney may tell you what they think you should do, but remember that this is always your choice and your choice alone.
5. Emphasize the burden of proof. When challenging the prosecution's evidence, you don't have to prove that your story is true. You only have to introduce a reasonable doubt that you committed the crime with which you were charged.
   • It can be helpful to continually remind the jury of this burden. You are innocent until proven guilty. If even one jury has a single reasonable doubt that you were driving drunk, they cannot vote to convict you.
   • Because of this burden, you can even introduce various potential problems with the field sobriety test that might seem to contradict each other – what lawyers call "arguing in the alternative."
   • You're allowed to do this because you don't have to prove that one particular story is true, just show that the prosecution has not effectively proven that their story is true.

References

See also

• Spot a Drunk Driver and Respond Appropriately
• Beat a DUI Charge in Illinois
• Hire a DUI Lawyer in California
• Deal With a DUI in Arizona
• Cross Examine a Police Officer in a DWI Trial (New York State)
• Go Through a DUI Checkpoint Without Being Tested
• Get Through a DUI Checkpoint
• Start a DUI School
• Minimize DUI Costs
• Behave when Arrested for DUI in Georgia

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