Interviewer: What sort of strategy do you apply to a case that involves a field sobriety test?
Kevin Roach: It's a common defense to attack the way the field sobriety test is administered, but I don't think that's a unique defense, because as I said before, almost every case has a field sobriety test whether recorded by video and/or the officer’s narrative report, it’s a very common test. Still, a lot of the officers are not adequately trained on administering these tests, so you would attack how they administered the test and destroy the credibility of the officer and the validity of the test.
Client Characteristics that Affect Field Sobriety Test
Interviewer: Are there any factors like age or conditions that people should tell you about that can help their case?
Kevin Roach: A lot of times, I'll see people that have physical disabilities, and a lot of times the officer will not take that into consideration. I had a gentleman that had just undergone a hip replacement. He was pulled over. I think it was three or four weeks after that. He had told thoroughly informed the officer of this, and he still administered the tests – the walk-and-turn, the one-leg-stand – just like he would to anybody else. They are supposed to determine whether you're physically able to take the test or not. If you're not, then they're not supposed to administer the test, but I do see that a lot of times. You can use that to help your clients a lot of times win their cases.
Interviewer: If a case is taken to trial and a field sobriety test has been involved, do you think juries can sometimes empathize with the fact that some of these tests are unfair and not scientifically based?
Kevin Roach: Absolutely. I think that issue really hits all. I think in this situation, most jurors would empathize with the driver. I think it's just purely up to the officer's discretion as to whether or not you passed. There's not a scientific situation where you say, "He did this and he did that, and he passes or he's failed." The officer says, "I think he wobbled a little bit. We're going to put down that he failed." The test is completely subjective, so I think that is taken into consideration with jurors for sure.
Actual & Expected Test Results
Interviewer: Do police officers tell people how they did on the test?
Kevin Roach: No. They normally do not. I can't ever remember anybody coming to my office and telling me the officers informed them that they passed or failed. Typically, the officers do not go through that with them. I would say probably 50% or 60% of the time, they don't even tell them what their BAC was when they blow. They don't even know what it is other than it was over 0.08.
Interviewer: What are your clients' perceptions about their test results or how do they usually think they did?
Kevin Roach: Most people feel like they passed the test. Typically though people know when they have failed. I would say maybe 20% or 30% of the time, people say "Yeah, I really messed it up," but I would say the other 70% to 80% of the time, people think that they passed it, and they're ticked off because they think they should have let them go. Little do they know, nobody ever passes these tests. It just takes a little subtle sway or wobble to deem a failed result. You don't have to fail them all. You just have to fail one.
Even if you do pass, the officer could still believe that you're intoxicated and take you into the station to administer a breathalyzer.
Impact of Failed Test on Potential Case Win
Interviewer: If I know I failed a field sobriety test, can I still win a case?
Kevin Roach: Absolutely. A lot of people have failed the field sobriety test when they're sober. Some individuals are going to have a physical disability and not be physically able to do the test. An individual could have a glass eye, a bad knee, a bad hip, whatever the disability may be; they were just not physically capable. A disability could cause you to fail the test miserably and have nothing to do with being under the influence of alcohol.
Kevin J. roach is a St. Louis DWI defense attorney who has defended thousands of DWI and DUI cases in the St. Louis Metro area. Call us today at (636) 519-0085 or (866) 519-0085 for your Free Consultation!