How Will Your Attorney Examine the Field Sobriety Tests to Build a Defense?

Interviewer: When you work with a case and the client has undergone these tests, what are looking for to help build a defense?

Michael Kramer: The main thing a DWI attorney has to do is cross examine a police officer on the implementation of these tests. In order to prepare for that cross examination, you have to know the specific tests that were requested and you have to know what caused the failure of those tests and the specifics as to why the police officer failed the motorist.

The Attorney Will Cross Examine the Arresting Officer about How He or She Relayed the Instructions to the Driver

You usually obtain that through discovery and then you prepare a cross examination based upon that. The cross examination could start off with how accurate or inaccurate these tests are. It could start off with asking the officer to give the instructions that he gave to the motorist at the scene and seeing if the officer misses any of the detailed instructions that must be given.

If the officer says an individual stepped off of the line and that’s why he failed the motorist, the question would be, well how much did he step off the line? If he only stepped off the line once and he did eight steps correctly one way and nine the other, one out of 17 or 18 steps why is that a fail? Why doesn’t he get credit for the steps that were perfect and on the line? That’s how the cross examination would go.

Any Method of Testing Employed by Law Enforcement Is Evidence Gathering

Interviewer: Would you say that it would be safe to assume that when a police officer is conducting not only the standardized field sobriety test but the Breathalyzer or and sort of blood draw, that at that point they’re just trying to collect more and more information?

Michael Kramer: Yes, that is correct.

Interviewer: Rather than making a determination, they’re just trying to add to the list and make the case a little bit more difficult to win for the individuals?

Michael Kramer: If you admit to any alcohol consumption when you’re stopped and if the officer detects any odor of alcohol—his job then is not to find evidence to exonerate you—but to find evidence of guilt to make his job that much easier when it comes time to go to trial. He may try to convince you that he’s just trying to help you, you say you’re not drunk, show me you’re not drunk, take these tests if you do this everything will be fine. He’s going to arrest you, 99 out of 100 times.

Interviewer: What would you say is some of the more challenging aspects of dealing with a case that is involved with standardized field sobriety tests?

The Performance of the Field Sobriety Tests Is Defensible in a DUI Case Due to Their Difficulty and Subjective Scoring

Michael Kramer: Ideally, I would love a DWI case to be just based on standardized field sobriety tests and no chemical tests. Therefore, if a motorists didn’t know he can refuse a field sobriety test and chose to participate but then back at the police station refused to take a chemical test all the police and the prosecution has to rely on are these field sobriety tests.

From a defense attorney standpoint, that’s the best scenario. This is because as I said, these tests are far from reliable. I would just say to a juror you heard the instructions, you go into your jury room in your deliberations and you see if you all can perform these tests as instructed. That’s usually all it takes because they are quite difficult if you haven’t practiced them.

In Some Cases, the Performance of the Tests Are Inadmissible

Interviewer: Are there any cases where you’re able to prove that standardized field test results were inadmissible and then just move on to whatever other evidence was presented?

Michael Kramer: They would be inadmissible if the police officer did not have reasonable grounds to stop you in the first place but he was just picking out cause arbitrarily. For example, if he was coming up to a motorist, asking if they’ve been drinking and seeing if he smells alcohol and then proceeding to field sobriety test.

It is very difficult to show because the police officer can come up with any perceived violation of the law as a reason to stop, even a no license plate light for example. Once he has a reason to pull a car over then any evidence he observed from that point can be used against you. If he did not have grounds to stop you then if you can prove that, if that can be established at a motion hearing then the field sobriety test evidence would be inadmissible.

The best scenario with regard to field sobriety tests are when they’re not given at the side of the road but as I indicated previously, in New York City they’re usually given by a different police officer. This is one who’s trained particularly in implementing these tests back at the police station. In order for that to occur a motorist has to be under arrest.

Therefore, the police officer had to have probable cause to arrest the motorist without field sobriety tests. The decision becomes much more difficult and the case becomes much more subjective in terms of being able to employ emotion to suppress evidence that is based on the illegality of the arrest. All evidence collected after that is inadmissible and must be suppressed.

It’s basically whether the arrest is legal and whether the stop is illegal that determines whether field sobriety test evidence can be admissible at trial.

There are some typical scenarios where police go on a fishing expedition. They pull over a car that to them is suspicious late at night on a dark country road and they look for something wrong. If they happen to believe you’re DWI and arrest you, they’re going to come up with a reason why they were legitimately able to stop you.