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Is an unsafe location for a DUI field sobriety test grounds for suppressing evidence?

Lakewood, CO |

I was instructed to park in the right lane of a four-lane divided highway (45 MPH) where I performed the field sobriety tests in front of my car. The approach of the DUI checkpoint closed the right lane and all cars were directed into the left. However, I was parked far enough in front of the last patrol car with flashing lights that a driver could have possibly merged over to the right lane thinking that it is was no longer closed (similar to a construction zone when the cones end, people will merge over quickly). Would this safety issue be grounds for dismissing the evidence collected?

Attorney Answers 5


You've now added some details to your former question. You need to consult witha n experienced DUI defense attoreny to deal with these issues. No one can tell you that you have a winning defense based on this or the prior note. Sobriety checkpoints are viewed favorably by the citizenry and favorably by the bench in Jeffersonj County.

In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but insted need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights.

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This is certainly an issue that should be explored. I'm reluctant to suggest, based on the limited information provided, that the evidence would be "dismissed" but the proximity to passing traffic could certainly be explained to a jury as an explanation for any poor performance on the sobriety tests. Under the best of circumstances, 20% of sober people fail these tests.

Again, you need to discuss these issues with a qualified DUI defense attorney.

John Buckley

No answer here should be considered to form an attorney-client relationship. You should consult with a licensed attorney in your jurisdiction so that a full evaluation of the facts of your case can be conducted.

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Atousa Saei

Atousa Saei


It always astounds me how many sober people fail road side sobriety tests.


In answer to your question, "Is an unsafe location for a DUI field sobriety test grounds for suppressing evidence?", usually not. What this may to go though is the validity of the sobriety test. DUI cases are complicated and much of the evidence science based. It is important that you consult an experienced DUI attorney to have him or her review your discovery and assess the evidence in your case. While you are concerned about the safety factor, there are other issues which arise from your description which could be helpful in defending your case. There are many issues relevant to checkpoint cases that your lawyer will have to look at before he or she is able to fully determine whether or not the way the checkpoint was conducted would be a defense in your case. Good luck to you.

By answering this question on AVVO we do not enter into an "attorney-client" relationship. My answer to you is for educational purposes only and is my best recommendation based on the information provided to me.

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This is a good example of how a client's question, no matter how detailed, lacks information that an attorney needs to answer the question. This is why attorney's say that you need to contact an attorney directly. Even though these forums are helpful, they are limited and should lead to the client contacting an attorney for good sound legal advice.

I am not your attorney. Contact an attorney for advice immediately.

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As has been mentioned consult with a Local CO DUI attorney, that said I focus my practice on DWI defense (licensed in NY, PA, NJ, and FL) but not CO.

The scales of justice are there for a reason. This evidence would likely go to weight, or how much value a judge or jury would assign it. Some of the tests (testing) may be suppressed before trial. I file motions in limine (pre-trial motions) if cross examination of the officer at a prior suppression hearing can show a deviation on test standards, especially with the HGN (horizontal gaze nystagmus).

For this evidence to be "suppressed" it would need to be shown to be obtained in violation of your 4th amendment right to be free of unreasonable search and seizure. A valid stop (PC: probable cause), a valid DUI checkpoint, would open the door for the police to conduct the SFSTs (standardized field sobriety tests) if there was PC (odor of alcohol, watery eyes, etc.).

But the main point is that the SFSTs have a BIG "S" in front for a reason: STANDARDIZED

They (FSTs) must under NHTSA (national highway traffic safety administration) guidelines be given the same way in every state and by every officer every single time. There are guidelines and rules to follow. Find a certified SFST DUI attorney in your area. A safe location for testing conditions, where you are not distracted and fearful would be a pre-requisite to giving an accurate, valid, and reliable test.

I am both breath and SFST certified. Just like we must follow the rules, police must follow their rules (procedures) as well. Rules violations by those sworn to serve and protect don't look good to a jury even in Colorado. see my blog on the dwi standardized arrest below and my video on challenging the SFSTs ( I have over 200 videos on DWI defense)

Lawrence (Larry) Newman, D.C., J.D. Attorney at Law Doctor of Chiropractic Licensed in NY, PA, NJ, & FL The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Dr. Newman strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

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