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Could a field test be used against you in a d.u.i. refusal case.

Tampa, FL |

I did not understand what was being ask of me to do because the demands were confusing so the officer and I was conversing as I was asking him "do I do it like this" before I actually performed the test now as I gain more knowledge of these sort of cases I feel it could be used against me is that so ?

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Attorney answers 8

Best Answer
Posted

Roadside / Field sobriety exercises are abnormal tests which are allegedly designed to test one's normal faculties. Law enforcement touts them as the be all and end all of tell-tale signs of impairment, and prosecutors argue until they are blue in the face that any physically capable and sober soul can and should pass them, so the fact that you "failed to perform to standards" proves that you, my friend, were DUI. Defense attorneys, on the other hand, know that fst's are nothing more than a set-up (i.e. utter bullcr*p) and, if trained properly, should be able to demonstrate to a jury that whether you can hop on one leg and touch the tip of your nose while singing the Star Spangled Banner (obviously I am being facetious and exaggerating) has no bearing on your ability to safely operate a motor vehicle.

That said, fst's, or more accurately, your performance on them - as subjectively rated by law enforcement, can and will be admitted into evidence against you. This will be coupled with the police officer's allegations of your driving pattern (i.e. why you were stopped) as well and with any other observations that (s)he may claim to have made (i.e. what you looked like, how you spoke, walked, responded to requests, were dressed, smelled, sounded, and on and on and on.... until s(he) has testified exactly as s(he) was trained at the police academy in the 101 DUI block of classes.

If you are in a jurisdiction where fst's are videotaped then you will have the benefit of seeing what the jury will see, and if you are smart you will carefully - and objectively - look at it with your lawyer (after 21+ years of DUI work I can tell you that I have seen many videos that contradict law enforcement's testimony, but I also have to say that the vast majority of them confirm it) before you decide whether or not to roll the dice with a jury. If there is no video then you are back at square 1: Your word against that of law enforcement (and, as my esteemed colleagues have stated, the State's case will be bolstered by being permitted to argue "consciousness of guilt" - meaning that you refused because you knew that you would have blown over the legal limit had you taken the breath test).

The bottom line is that these cases are almost always slug-fests (tough fights), and, as in any fight, the better you train and prepare the better your odds at success. If you are not already represented by competent counsel then I urge you to get into someone's office yesterday. Although I practice primarily in Miami-Dade County you are welcome to contact my office for a referral or two, or you can search the Florida Association of Criminal Defense Lawyers website by locality (please see http://www.facdl.org/ - and click on the "Find A Lawyer" tab).

Either way best of luck!

Ted Harvatin

Ted Harvatin

Posted

Ask the cop how he performed on the OLS that I am sure DMV administered to him prior to handing him his license in order to prove he was fit to drive

Michael Adam Haber

Michael Adam Haber

Posted

@ Mr. Harvatin: Exact-a-mundo!

Posted

Yes it can It will be the primary evidence against you. They will also argue consciousness of guilt regarding the refusal to attempt to show your normal faculties were impaired. My firm handles these matters and offers free case consultations. Have a good rest of the weekend.

This answer does not, nor is it intended to, create an attorney-client relationship or constitute attorney advertising. Rather, it is offered solely for informational purposes. The facts of each case are different and unique, it is critical to consult with qualified counsel with whom information can be shared and assessed under attorney-client privilege, so that competent and quality advice can be obtained on which you can make informed decisions

Posted

The can use this against you, my suggestion is to consult with an experienced criminal defense attorney to discuss your best course.

The above answer is for information only; and does NOT constitute legal advice. This answer does not constitute, nor does it create, an attorney-client relationship between KaplunMarx, PLLC, Theodor Kapun and any receiver. The information provided on these pages is general only, and you should not act upon this information without consulting with a qualified attorney.

Posted

Sadly these so-called tests are designed to be failed. As you suggest, you are completely unfamiliar with them, but no matter, the officer has teh subjective power to pass or fail you. Which do you think he will choose?

As my colleagues suggest, retain the services of a qualified DUI/DWI defense attorney who can answer all of your questions and can assist you in defending your case.

Posted

Are you referring to field test exercises or a preliminary breath test? Assuming you mean a preliminary breath test, no, those results are not admissible at trial.

For more information or to set up a free initial consultation contact attorney Maggie Gutierrez who is on call 24/7 at 305-394-7100 or email Maggie@MyKeyWestLawyer.com. This answer does not, nor is it intended to, create an attorney-client relationship. It is offered for informational purposes only. If you find my answer helpful, please make sure to mark your choice. Consult with a licensed attorney before making any legal decisions.

Posted

There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, alphabet recitation. Most officers will use a set battery of three to five such tests. Unlike the request to provide a breath sample, which has some siginificant consequences on your driver's license, you are not legally required to take any FSTs. The reality is that officers have made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitable "fails"; a polite refusal may be adequate.
Best success!
Richard A. Alexander, Esq.
Cell: 813-850-4247

Posting an answer to your question does not create an attorney / client relationship such that you can or should rely on the information provided herein to take action. Instead, it is intended to simply provide you with information. I am not your lawyer and cannot provide you with legal advice unless and until I am hired to do so

Posted

They're not allowed to call the tests. A test implies that there is a standardized grading system in place to pass or fail. That's why they're required to call them field sobriety "exercises." It's entirely subjective and law enforcement officers almost never let anyone go after they complete the field sobriety exercises. It's just too much work invested in the stop to let them drive away. So they arrest. I'd love to see the video in your case, which probably does not even remotely match what the officer wrote in the report.

Posted

My colleague in the National College for DUI Defense, and L.A. DUI Guru, Lawrence Taylor, posted the following in his DUI Blog recently. Read how the original NHSTA studies by Dr. Marceline Burns are being debunked by science. Credit to Mr. Taylor's blog post in the link below.

Field Sobriety Tests Found to be Inaccurate

"Posted by Lawrence Taylor on June 25th, 2013

Proponents of the so-called “standardized” field sobriety tests (SFSTs) have long pointed to federally-funded field studies which indicate a high correlation between performance on the tests and actual blood alcohol concentrations (BAC).

Subsequent studies, however, have called those conclusions into question.

Originally, the National Highway Traffic Safety Administration (NHTSA) paid a private group, the Southern California Research Institute, to conduct studies to find which among the various field sobriety tests used by police were most effective and to develop a standardized 3-test battery. SCRI subsequently reported to NHTSA that a battery of walk-and-turn, one-leg-stand and nystagmus provided a strong correlation with breath test results.

Confronted with questions about those conclusions, NHTSA later commissioned the same researcher who had conducted the original studies, Marcelline Burns, to corroborate the accuracy of her own tests of the SFSTs – rather than commission an independent source.

Burns accompanied a small number of San Diego officers conducting actual DUI investigations in the field. After administering the SFSTs, the officers were asked to guess whether suspects had blood alcohol concentrations (BAC) over or under .08%. Burns reported a 91% correlation between SFSTs and BAC over-under estimates, thereby validating the battery of tests she had helped create.

A subsequent scientific article challenged Burns’ corroboration of her own research. In Hlastala, Polissar and Oberman, “Statistical Evaluation of Standardized Field Sobriety Tests”, 50(3) Journal of Forensic Sciences 1 (May 2005), the raw data used in the validation study were obtained from NHTSA through the Freedom of Information Act. The methodology used was then reviewed and the data subjected to statistical analysis.

The methodology was found to be seriously flawed in a number of respects. For one thing, many of the suspects had very high BACs, making estimates of whether a suspect was over .08% obvious regardless of SFST performance. For another, there was no attempt to isolate the influence of SFST performance from other factors: officers estimated BACs after the field sobriety tests, but they also took into account earlier observations, such as erratic driving, slurred speech, odor of alcohol, flushed face, admissions as to amount of alcohol consumed, etc.

The most glaring defect in Burns’ corroborative study was that “all police officers participating in the study were equipped with NHTSA-approved portable breath testing devices”. In other words, the San Diego officers already had the results of portable breath tests before they were asked to estimate the BACs later obtained at the station!

After reviewing the flawed methodology, the raw data was then statistically analyzed. The conclusions:

If we consider three ranges of MBAC [measured blood alcohol content], 0.00% to 0.04%, 0.04% to 0.08%, and 0.08% to 0.12%, the officers’ EBAC [estimated blood alcohol content] overestimated the MBAC 76%, 67% and 48% of the time, and underestimated it 14%, 26% and 28% of the time.

In other words, officers relying upon field sobriety tests were far more likely to overestimate BACs than underestimate — particularly with those suspects having very low BACs.

(T)he utility of the SFST depends very much on how intoxicated an individual is. Accuracy (and specificity) are low when individuals are close to 0.08% MBAC, but if the individuals are quite intoxicated, such as above 0.12%, then accuracy is high.....

Every case and situation is different and vary greatly depending on specific facts. My posts are not to be considered complete answers to each question. My posts do not constitute an attorney/client relationship. I am only licensed to practice in the State of Florida and in federal courts. Florida Bar #337821, admitted 1982.

Thomas Ifversen

Thomas Ifversen

Posted

I have used Dr. Hlastala as an expert witness on several DUII cases here in Oregon (he is a professor at the University of Washington Medical School). In the study Mr. Bletcher references as well as other studies which show that the accurate statistical accuracy of field sobriety testing is somewhere around 50%. The beauty of having a peer-reviewed cardio-pulmonologist who is a certified FST instructor as an expert witness is that the DA can't offer a witness who holds a candle scientifically to the defense witness. Cost is the biggest issue for the defense. You could absolutely be acquitted of this charge. Just don't be surprised if it gets expensive.

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