Articles Posted in Field Sobriety Tests

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Today’s DUI case was a 69 year old man from out of State. He was stopped in Baltimore County for speeding going 50 in a 30 and subsequently charged with DUI/DWI and speeding. He is alleged to have had red glassy eyes, slurred speech and poor field tests with the moderate odor of alcohol. He elected not to blow in the Government’s breath box thereby electing not to give additional evidence against himself (wise decision).

The Baltimore County Police Officer, a pleasant and agreeable young man, testified that there does come a time, considering age, that field gymnastics are not appropriate tests. However, he also said that FSTs are “standardized” tests and he grades them the same whether a suspect is 18 years old or 69 years old, as in this case. Now does that seem normal to you? Does that meet the common sense test? Despite his age and ailments he was actually able to stand on one leg for 30 seconds as requested with the use of his arms for balance.

In addition to the age consideration, this pleasant client had suffered a stroke a number of years back, he had 7 eye surgeries, multiple surgeries to other parts of bodies including knees, and multiple back injections for arthritis. I requested all these medical records for Court and timely provided the records to both the Government and the Court as evidence.

After the prosecutor/Government read this evidence (ahead of the trial date), considered my client’s age and his overall medical condition who thinks the Government did the right thing and dropped the charges?

You guessed it- no such luck. So up goes the cop on the stand who indicates that my older client was able to stand on one leg for 30 seconds while holding his arms out for balance (a task the absolute majority of the public can not do). The rest of the fields were as you might expect them to be, somewhat problematic. I think the officer probably understood that this guy was not impaired, but he has his arrest numbers to keep up and was just doing his job. However, that does not mean the Government/prosecutor should have cart blanche to waste tax payer money on cases like this.
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Have you ever driven home from a social event after midnight and been just plain exhausted to the point where it’s a struggle to keep your eyes open? Have you ever driven your car for 3 or more hours and looked in the mirror and seen red, glassy eyes staring back at you? That’s how it was for me driving back from camp the other day. It was an 8 hour total drive in one day, but hey, the kids are worth it. The problem is if Maryland’s finest should happen to stop somebody for a traffic violation, such as a license tag light being out, the red glassy eyes and late night driving would be a seriously incriminating problem. Additionally, if one were to stop on the way home and eat dinner and consume one beer, which was subsequently identified by the roving officer, the whole evening could prove quite disastrous.

Some important thoughts to baer in mind regarding late night driving and DUI are 1) the cops are on heightened alert because it’s nighttime. When the sun goes down the police ramp up for more stops and more DUIs. They go out of their way at night to pull people over for any infraction, such as a burnt out tag light, high beams on too long, driving 5 miles over the speed limit, touching the shoulder line of the road, etc., in order to effectuate that stop.

2) Once they pull you over, even the faint odor of an alcoholic beverage will get you in trouble for drinking and driving because once they smell it, you are likely going to be arrested. The police officer’s favorite question is: have you been drinking tonight? You lose no matter what you say. “Yes, I have been drinking, I had a beer at the restaurant.” Busted, you are going to the station house because you admitted to consuming alcohol and they won’t believe what you told them. Or, “No officer I haven’t had anything to drink tonight.” Busted, he knows you are lying because he can smell it on your breath. Either way, you lose.

Now, the fun is just beginning! Your body keeps its own internal clock, it’s called a circadian rhythm. This internal body clock, according to researchers can effect your ability to engage in mental and physical exercises at night such as DUI roadside field sobriety tests. Therefore, when you are most vulnerable to attack by the police secondary to it being late at night, or being tired, or driving a long distance, the police are on high alert to look for you. Mix that with only one beverage and you have a recipe for disaster. Under these circumstances there is little chance, if stopped, that you won’t be charged with a DUI even if you blow under Maryland’s legal limit for DUI, which is .08. Remember, according to a recent conversation I had with a Maryland State Trooper, “If we hook ’em, were going to write ’em.” That means, if you are arrested for the crime of DUI, it is highly likely you will be charged even if you blow under .08.
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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….
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Today is July 4th, 2007. Happy Independence Day America!

I wanted to write an entry about the importance of significant weight loss and its impact on the breath machine but then I saw this video of 1989 playmate Jennifer Jackson being stopped for a recent DUI and wanted to make a more important observation for the safety and benefit of all.

If you watch the video you will see Ms. Jackson attempting to perform field sobriety tests on the shoulder line directly adjacent to oncoming traffic. You will also see this Ohio officer actually standing almost in the middle of the travel lane as he requests this young lady to perform these tests and incriminate herself. She appears to have difficulty balancing, now whether this is a personal issue, or is related to alcohol consumption or drug consumption (they found items in her car) we do not know, although the police will of course charge her with everything.

The thing that bothers me about this DUI arrest, is that the officer, in his zeal to effectuate this DUI stop has placed himself and the suspect directly in harm’s way. He does not seem to recognize nor care about that fact; however, I’m sure both his family and Ms. Jackson’s family would care a great deal if something bad happened. Notice in the video that Ms. Jackson falls to the side right into the traffic lane, the officer nearly has to catch her. The officer is standing nearly in the middle of the travel lane. Somebody is going to get killed and then it will be all Ms. Jackson’s fault because she was stopped for this alcohol offense.

Just recently there was an officer in Maryland who was tragically struck and killed as he attempted to stop a vehicle for speeding. Apparently he performed the dangerous maneuver of stepping out directly into traffic in order to direct the driver to pull over. The driver was in fact speeding but there was no alcohol involved. The driver could not or did not stop in time and struck the police officer. He later died of his injuries. They are now conducting an investigation into whether the procedure of stepping into the street in order to stop speeding cars is safe.

The purpose behind traffic law enforcement is to save lives, not risk lives. In both of the aforementioned cases, lives are being needlessly risked or lost. The majority of DUI stops take place at night when drivers can not necessarily see as well as during the day. If the arresting officer wants to stand in the middle of the street and if he wants you to perform field tests on the shoulder of the street with cars flying by, do everybody a favor and tell him no! Field tests should not be attempted in the first place because you only give the officer evidence to use against you, but if you are going to voluntarily attempt the test, make sure that you are in a position of safety, perhaps on the sidewalk and encourage the officer to get into a position of safety too. After all, what kind of notes can the officer take regarding your field sobriety tests if he has to constantly be concerned about oncoming traffic. Likewise, how can you perform these tests to your full capacity if you are worried about being struck by a car.

This way you can both enjoy your July 4th holiday.
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