As a DUI Lawyer, almost every case I handle involves the Client having performed some Field Sobriety Tests before being arrested and charged with the Misdemeanor Offense of DUI. Sometimes, the Client will tell me that they did well on them, but the Police Officer just kept giving them more and more to do, until they eventually failed.
Of course, what any DUI Lawyer hopes for is that the Police Car was equipped with a video camera, which was running, while the Client did, in fact successfully perform all the field sobriety tests. To say those cases are in the minority, however, would be a rash understatement.
In most cases where I have obtained the video, it either shows the Client clearly impaired by alcohol (even though her or she may not have thought so at the time), or fails to show anything one way or the other, leaving the Police Officer’s report of the person’s failure of one or more of those tests un-contradicted.
There is a whole science to Field Sobriety Tests. That’s far outside the scope of this article, and in fact would require a rather long series of them to even scratch the surface. For our purposes, we’re going to talk about the generally well-recognized reality that, at the point a Police Officer asks a Driver to perform Field Sobriety Tests, they have essentially made up their mind that the person is going to be arrested.
In fact, I have never even HEARD of a case where a person was given Field Sobriety Tests and then let go. Now, no one calls me when they HAVEN’T been Arrested for a Drunk Driving, so it’s not like I’m in any position to hear both sides. Still, I doubt anyone of us has ever met, or heard of a case where a person was pulled over, given Field Sobriety Tests, and then told to be on their way.
Just as a preliminary matter, in every Police Report I have ever read in a DUI case (and as a matter of course, a DUI Lawyer MUST read the report before even thinking about what to do in any particular case), the Officer has noted that the Driver’s eye’s appeared “red,” or “bloodshot,” or “glassy,” and that their speech was “slow,’ or “slurred,” and that they noticed a “strong odor of intoxicants” coming from the driver as he or she spoke.
There is a step between the administration of the Field Sobriety Tests and the actual Arrest of the Driver. In the back of the Police Car, the Driver is asked to blow into a portable breathalyzer unit, and the number that is displayed becomes known as the Driver’s PBT results. PBT stands for “Preliminary Breath Test.”
I suppose if a Driver told the officer he or she was very tired, had a single glass of wine a few hours ago, and blew a .03 on the PBT, he or she might be let go. In practice however, everyone I see blows above the legal limit of .08. Often, a Driver will blow well into the double-digits, scoring a .13, or a .15, or even higher.
The point here is that if a person is pulled over after having had a few too many, there is virtually no likelihood that any Olympic-class performance on the Field Sobriety Tests is going to get them a free pass. At that point, they can pretty much count on being placed in the back of the Police Car and asked to take a PBT.
Even in those cases where a person’s PBT results are very low, if they performed poorly enough on the Field Sobriety Tests, or if the Office picked up on other indications of intoxication, they may still find themselves arrested and taken for a blood test. Those blood test results often lead to charges of OUID, or Operating Under the Influence of Drugs.
Still, a Driver never knows if the tests are being recorded, and would be well advised to cooperate with the Officer and do their best. While certainly the exception to the rule, there’s always a chance that they could do well enough of those tests to mount a successful legal challenge to their subsequent arrest. The presence of Police car Video, if any, can be huge in this regard.
For most people, however, being asked to take various Field Sobriety Tests really means a DUI is right around the corner. If you are facing a DUI, then you certainly know this to be true. I suppose that, while of no real help, there is at least some cold comfort in the fact that, at that point, there probably wasn’t a lot you could have done to help things, anyway.