I have been espousing to clients and the public in general that engaging in Field Sobriety Tests (FSTs) following an alcohol stop is wrong! It’s just wrong! The reason is because there are so many variables against you regarding the successful completion of these tests and conversely you have so little to gain by attempting the exercises. You can and should expect the officer to cajole you into doing the tests by saying such things as, “well if you don’t do the test, I am going to arrest you” and “if you pass the tests, I might let you go.” Guess what, once you are stopped for DUI in Maryland, once the officer smells alcohol on your breath, you are going to be arrested in 9.5 out of 10 cases; plain and simple. What we all need to do is to stop giving the police evidence to use against us in Maryland’s court, we need to stop self incriminating. The faster we grasp that, the better we will be. The field sobriety tests in Maryland are enormously unfair and unproductive to the driver and here is why:
1. The tests are subjectively graded by the officer. As far as the court is concerned, what the officer says happened, is what happened. When it’s a driver’s word against the cop’s word, the cop wins- after all, you were impaired how could you possibly remember what happened right?
2. The driver is attempting these field exercises in a highly emotional state. It is typically night time, on the side of the street, and if you are human, your blood pressure is through the roof because you have been pulled over by the police, you face possible jail based on how you do (at least in your own mind), you are in public trying to do these tests, and you may not be all that physically coordinated.
3. Different people have different abilities, both physically and mentally. Some people are coordinated, faster, balance better, some people have medical issues, some people can function better under pressure, etc. I do not see, nor have I seen, where sober people under these conditions can perform these test adequately. How many times have you heard “I couldn’t do these tests sober!” Don’t say that either, they will use that against you as an admission. Essentially, the test are engineered from the word go for you to FAIL. By the way, you better wait for the word GO to begin the tests or that will be construed as a clue against you.
I won an interesting case on Friday (today is Saturday morning) on the eastern shore, Maryland and I think it is noteworthy regarding field sobriety tests- here’s what happened….
I can’t say the last time I saw a statement of facts where a DUI suspect was alleged to have passed the field tests, that (almost) never happens. However, in this case, the facts indicate that the driver passed. He allegedly failed the eye test (HGN) which in Maryland is only an indicator of the presence of alcohol, but he passed everything else. Amazing! The Maryland State Trooper (a pleasant and honest officer) was prepared to let him go when instead he asked for permission to search the driver’s car. The driver, apparently not knowing any better allowed the search notwithstanding the fact that he did not have to allow the search and in fact he should not have allowed it. CDS (drugs) were located in the car and the driver was arrested and charged with possession of cocaine and DUI (even though he passed all the field tests). He was taken to the barracks to provide a breath sample where he tried to do so but did not do it according to the officer’s specifications and was charged as a refusal.
I defended the possession of cocaine case and the DUI in court and won them both, and I defended the refusal on Friday and won that too, so the client is a happy and free man. By the way, he was stopped for having a tag light out.
The important part of this story and why I’m relaying this in a post about field sobriety tests is that the driver blew a PBT of .15 (twice the legal limit) and apparently passed the field tests. Conversely, I have a tremendous number of clients who are less than or equal to .08 and are alleged to have failed the field sobriety tests. So, in the final analysis, what good are these darn exercises, what do they prove, other than to allow the police to develop evidence which is utilized against the driver in almost every single case.