DUI Defense Strategies (cont’d.)
In my experience as a DUI lawyer, I can tell you that prosecutors and police tend to overvalue the importance of field sobriety exercises in DUI cases. While I do not disagree about their usefulness in many cases, they are not the “end all-say all” in DUI.
For instance, field sobriety exercises are really good at illustrating a drunk person’s inability to operate a motor vehicle. If you are so intoxicated that you can barely walk or stand without falling over, field sobriety exercises will provide you with ample opportunity to show just how drunk you are.
However, when it comes to DUI cases where the suspect is not drunk,
but is border-line or merely questionable, field sobriety exercises are entirely ineffective.
To understand why this is true, it is first necessary to understand how field sobriety exercises are administered by police during a DUI investigation.
First, a police officer will ask a person if they are willing to participate in roadside exercises to test for sobriety. If the person refuses, the officer will make his/her decision to arrest based on the information presented until that point. In most cases, the officer will place a person under arrest for DUI at this point in time.
While police claim to let some people go after administering field sobriety exercises,
the truth is that this rarely happens.
When most people agree to performing field sobriety exercises, they do so out of fear of the police or with the hope that cooperating will garner credit with the police officer. However, nothing could be further from the truth.
If a police officer has pulled you over and is questioning you about how much you had to drink and asks you to submit to testing, he/she is not there to help you or find a reason to let you go. The reason for the testing is to build a case for prosecutors in support of your imminent arrest for DUI.
In reality, if a police officer is asking you to submit roadside tests,
odds are he/she already has concluded that you were DUI.
I any event, if a DUI suspect agrees to perform field sobriety exercises, the police officer I supposed to walk the person to an area of the roadway where the exercises may be performed safely. This area must have a flat surface that is free of debris or other obstacles.
The DUI police officer will then advise you that he/she is now conducting a criminal DUI investigation. The DUI officer will also advise you that he/she is about to read you instructions for the performance of field sobriety exercises.
At this point, the DUI officer will pick three exercises for you to perform. In most cases, the first exercise will either be the “horizontal gaze nystagmus” or the “walk and turn” exercise.
Of all the field sobriety exercises performed, horizontal gaze nystagmus has the potential to be the most accurate. The details of this test will be discussed in another section. Regardless, this test is used to determine if the DUI suspect is experiencing any physiological effect on their eyes and inner ear due to the influence of alcohol.
Nearly every person who has been pulled over and was drinking will fail this test whether they are impaired or not.
It is important to keep in mind that the crime of DUI is not solely based on drinking and driving or even drinking and driving while under the influence of alcohol. Rather, it is a crime to drive while under the influence to the point where one’s normal faculties are impaired or their blood alcohol content is greater than 0.08.