Imagine the scene. You get pulled over by the police for speeding or whatever reason. As your vehicle is being approached you should realize that one of the things the officer is going to be doing is checking for signs of alcohol or drug use such as smell of liquor or marijuana, bloodshot eyes, slurred speech, etc.
If there is any reason that the officer suspects you have been drinking you will then be asked if you would be willing to do some voluntary field sobriety tests. At this point it is only too natural to start panicking and overthinking. You might think, “If I don’t cooperate, he’ll think I’m guilty!” Realize that they already think you are guilty or they would not be suggesting the test. You may think, “If I refuse, I’ll get automatically arrested!” You may actually be right about this but realize that if they are asking you to do field sobriety tests they are most likely planning to arrest you. Field sobriety tests are not designed to exonerate you – rather they are designed to give the police further evidence against you. You might think, “If I refuse then the prosecution will use that to show I thought I was guilty!” In Washington this can actually happen.
So what should you do in this situation? I have catch all advise for when dealing with law enforcement. Unless you called the police to report a crime, my general advice when contacted or questioned by law enforcement is to ask if you are free to go. If you are not free to go then ask for a lawyer. Preferable you ask for Tacoma criminal / DUI defense attorneys Smith & White, PLLC. But there are public defender on call at all hours of the night so any attorney will do. Do not answer anything until you have spoken with an attorney. And guess what the lawyer will tell you? They”ll tell you not to answer anything.
However, it is more then likely that if you are reading this page, you probably already took a field sobriety test — and failed it. Even if you think you passed the officer likely scored you as a failure to justify arresting you. This failure had a devastating consequence Field Sobriety Tests as it formed the basis of your DUI arrest. However, you should not think that your case is hopeless. With the help of a veteran lawyer, the field sobriety test or FST can be challenged. If the FST results are suppressed, the rest of the state’s case may be thrown out as well.
At The Law Offices of Smith and White, PLLC, we offer a free initial consultation to discuss your DUI arrest. With a main office in Tacoma, our lawyers handle DUI cases throughout western Washington state, Pierce County (Tacoma), Kitsap County (Port Orchard), Thurston County (Olympia) and South King (Kent).
CHALLENGING THE FST
The most important thing you need to know about the field sobriety test is that the Washington State Supreme Court just ruled June 17, 2016 that FSTs are not a search. As preposterous as this decision is, it is now the law of the state. And puts the suspect in an impossible position of damned if you do and damned if you do not. If you perform the tests the Officer will say you failed. If you refuse the prosecutor will say you refused to hide evidence of your guilt. Thus, ask to speak to an attorney right at this critical phase.
Many Officers have cameras in their vehicles. Despite this, they will move the suspect off camera for the FSTs so that there is no evidence to contradict the Officer’s opinion that the suspect failed the test. If a client called asking for advice in this situation I would advise to perform the FSTs only if the Officer records the performance. Offer up your own phone camera if necessary. And if there is a passenger or witness request that they video the performance. At least then there is objective evidence, rather than just the Officer’s opinion, on whether you passed or failed the tests.
The field sobriety test consists of three standard tests that have been the subject of three national studies and are approved by the National Traffic Safety Institute (NTSI). These tests include:
- Walk and turn
- One-leg stand
- Horizontal gaze nystagmus
Any other tests that you may have been asked to do should not be admissible in court. If you were only asked to do tests other than the three listed above than those were not legitimate FST’s and your Tacoma DUI defense attorney should be able to have those suppressed. The tests must be performed in a specific fashion. For example, the stimulus object in the horizontal gaze nystagmus test must be 12 to 15 inches away from your eye. Even if you demonstrated nystagmus (involuntary eye movement) while watching the object, there can be causes for this other than alcohol consumption. The most common is optokinetic nystagmus, which means your eye is tracking light in the distance behind the officer. If the officer tested you at night while you were facing a roadway, you were more likely demonstrating optokinetic nystagmus. Remember that the police officer that examined you is not a doctor; he may be unaware of what, other than alcohol, will create nystagmus.
For the one leg stand you are told to stand on one leg and count out loud until told to stop – the police will look for swaying, hopping, putting your foot down before being told to and raising arms. Anyone with a knee or leg problem such as arthritis will find this test prohibitive. Even if you do not have a physical problem per se there is the possibility of high heels, skirts, traffic zipping past, uncomfortably rocky terrain or other circumstances making this test less than reliable and biased in your disfavor.
Then there is the heel to toe walk. In this FST, you are asked to walk heel to toe counting to nine on a real or imaginary line, then turning and walking back. What the Officer will be watched for is if you are leaving the line, miscounting, struggling for balance, using your arms for balance or not meeting your heel to your toe. There are many people that, due to physical ailments, would not be able to walk this way and, if they did try, they would need to use their arms for balance. People make the mistake of miscounting all the time. It is certainly possible that it happened if your mind was more focused on a potential arrest than on counting which very easily could be the case.
If the officer didn’t have you perform all three tests or failed to demonstrate each test, the test results may be suppressed.
TACOMA DUI DEFENSE ATTORNEYS HANDLING CHALLENGES TO FIELD SOBRIETY TESTS
To discuss your case with our Tacoma DUI field sobriety test defense lawyers, call (253) 203- 1645 or send us an e-mail through this website. We will arm you with the information you need to make sound decisions about your case. Call or e-mail the law office of Smith & White, PLLC – your free case analysis awaits you.