Field sobriety tests (FSTs) have become a standard part of the DUI investigation process. FSTs are the series of physical tests—such as standing on one leg, walking a narrow line, or following an object with your eyes—that officers use to determine whether you are intoxicated. These tests are not always fair, and they are not designed to help you prove that you are sober. They can, however, be used as grounds to arrest you, and they can be used against you as evidence at your trial.
Fortunately, the problems with FSTs are well documented and you can attack their validity. In many cases, this could help you win your DUI case.
Why FSTs Are REALLY Used
On the surface, FSTs have one purpose: they’re simple tests that allow officers to check for signs of drunkenness or drug use. If you “pass,” you’ll be let go; if you fail, you’ll likely be arrested. It looks like a fair deal, right?
In reality, FSTs are one-sided. If an officer asks you to perform the FSTs, that officer already believes you’re intoxicated and is simply looking for a way to prove it. At this point, there is nothing you can do to “pass”—because the tests are hard and everyone will make a mistake somewhere along the way. If you’re shaky while standing on one leg, for example, it’s not because standing on one leg is hard; it’s because (to the officer) you’ve been drinking. Or, if you try to follow the officer’s finger by turning your head instead of just using your eyes, you’ll be told you couldn’t follow instructions, even if the instructions were said quickly, on a windy night, alongside a busy highway. You’ll fail.
It’s not that FSTs are completely unscientific. There are rules the officers must follow, and the tests must be done in a standardized way. If done properly, they really could reveal intoxicated behavior. But they’re not administered in a way that gives you a chance to prove you are sober. Any mistake counts against you, and the person who decides if you “failed” is the same officer who suspected you were drunk in the first place.
What are the problems with FSTs?
The main problems with FSTs are:
- They are mainly tests of physical agility. A person who is athletic and agile will perform better on the tests than an out-of-shape person, or even a perfectly healthy person who simply isn’t athletic. This is true regardless of sobriety and intoxication.
- They test your willingness to follow instructions more than your state of mind. Since FSTs involve unnatural movements and performing (essentially) exercises you have never done, the main criterion for passing is that you hear, understand, and execute the officer’s instructions. Mishearing, misunderstanding, or asking for clarification will be used against you.
- They are done under stressful circumstances. Ask six coworkers to stand on one leg without losing their balance and half will fail. Now do it at 2 a.m., on gravel, while a man with a gun shines a flashlight in your face. Add in a passing semi truck and you have a recipe for failure.
- There’s no scoring system. If you succeed at one FST and stumble on another, you fail. If you succeed at four FSTs and stumble on the last one, you fail. There is no way to accumulate “successes” or prove you’re sober. It’s simply a way to gather evidence against you.
In California, the best advice for most drivers suspected of DUI is to politely decline to do the FSTs. Unlike in some other states, you aren’t required to perform them. When you refuse you will probably be arrested for DUI, but the officer likely planned to arrest you anyway. This way, you give him less evidence to use.
Even if you did perform the FSTs, however, there are ways to fight them.
How can I attack FSTs as evidence in my DUI case?
You can fight against FSTs in two ways: by filing a motion to suppress them as evidence altogether, or by simply discrediting them.
- Motion to Suppress FSTs. This is the best approach, where it’s possible. Suppressing the FSTs means getting the judge to rule that they cannot be used as evidence at all. Basically, they’re off the table. But this only works if you can show that the officer did not follow proper procedure in administering the tests in the first place. For example, FSTs must be performed on level, dry ground; if your defense lawyer takes photos of the site where you were pulled over, showing that it’s not level or that it is covered in litter or other obstacles, the judge may suppress the FSTs. Similarly, if there is evidence that the officers did not properly explain or administer the tests—such as video of the arrest, or comments in the officers’ own report—the judge may suppress it.
- Discrediting the FSTs. This is the more common route. In many cases, the FSTs were administered “correctly,” but they simply aren’t strong evidence—for example, you stumbled once or failed in a way where even a sober person could have failed. In this case, your DUI defense lawyer can pressure the prosecutor by suggesting that the FSTs won’t hold up, or can outright attack them in court. Juries don’t put a lot of faith in FSTs alone.
Many DUI cases never go to court, and attacking the FSTs is a useful part of a larger strategy. A good DUI lawyer will whittle down the evidence, first the breath test or blood sample, and then the FST. Prosecutors don’t want to take a case to court if they don’t have strong evidence, and they will often make a deal.
Have you been charged with DUI? We can connect you with an experienced Los Angeles DUI lawyer and get you a FREE consultation. Fill out the form to the right or call (310) 862-0199 and get your free consultation today.