Absolutely false in every jurisdiction. Although police are trained to phrase their "request" for you to perform the evaluations in a manner to get you to submit, the evaluations are NEVER mandatory. The usual question is something along the lines of, "I smell alcohol on your breath. You don't mind performing a few simple evaluations so that I can make sure that you are safe to drive, do you?" Over 90+ percent of people eagerly step out of their car and begin attempting to perform evaluations of unknown difficulty levels, and under the stress of being investigated by a police officer for a possible DUI-DWI offense. Little do they know that the evaluations are not only NOT required, but are "designed to fail." This conclusion was part of a peer-reviewed article, FIELD SOBRIETY TESTS: ARE THEY DESIGNED FOR FAILURE?' by SPURGEON COLE AND RONALD H. NOWACZYK,formerly of Clemson University.
Myth 2: These are Government-Approved Tests, and they MUST be Highly Reliable
Believe it or not, the evaluations that were approved by NHTSA (the National Highway Traffic Safety Administration, a part of the U.S. Dept of Transportation) for use in screening suspected DUI-DWI offenders were never peer-reviewed by experts in psycho-physical testing. In fact, much of the raw data used to support these evaluations, which have now been used in over 10 million DUI-DWI investigations never was released to the public, and recent scientific review shows that the evaluations are FAR FROM RELIABLE, and that statistics of "false positives" [i.e., test subjects who were determined to be "over the limit" and arrested were ACTUALLY under the limit] were omitted from the estimated percentages of reliability. Officers were then trained to believe these flawed statistics. The 1977 study had a 47% false positive rate. Drs. Cole and Nowacyk came up with 46% false positive rate in their 1994 study of totally alcohol free subjects.
Myth 3: If the NHTSA Evaluations are not reliable evidence, the Rules of Evidence would never allow "Junk Science" in my trial
False in MOST courts in America. Hundreds of thousands of accused impaired drivers have had to face these bogus tests at trial, and have been convicted SOLELY on the outcome of these non-scientific exercises. That is why NO ONE should ever attempt these voluntary tests.
Myth 4: If I don't attempt to perform these evaluations, I will lose my license.
100% false. No state ever has or ever will pass that law. The presumptuously sober legislators who create state laws cannot perform these evaluations in their State Capitols with level floors and good lighting and air conditioning, and they will never be able to pass laws that mandate that citizens attempt agility evaluations or risk their licenses. JUST SAY NO to these bogus "tests".
Myth 5: If I decline the evaluations, the officer will arrest me and I will be convicted of DUI
You MAY be arrested by poorly-trained officers who are ego-driven to not be proven wrong, but seasoned officers who lack sufficient evidence of "impairment" due to you remaining silent and exercising your constitutional right to NOT attempt self-incriminatory, non-scientific evaluations, will USUALLY find another way to handle the situation. It is better to be taken to jail and bond out of jail on a case with little or no so-called "evidence of impairment" from roadside testing than to go to jail and later have to face a 20 minute video of you yammering away on tape and also being unable to do the subjectively-graded balancing acts described to you for the first time by an officer who is not following a script.
Additional resources provided by the author
See Perceptual and Motor Skills, 1994, 79, 99-104, for the article by Cole and Nowacyk.
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