So why should a driver suspected of DUI refuse to submit to the standardized field sobriety tests?
1) These tests are voluntary, not mandatory.
2) The government has the burden of proof and the burden of producing evidence. The suspect does not have to assist the police in developing their decision or “opinion” to arrest.
3) Police are not properly qualified, educated, or experienced in administering these SFSTs.
4) Police do not strictly adhere to the SFST guidelines, which compromises the validity and reliability of the SFSTs results.
5) Police score you on an unfair and negative scoring system. Before you even start walking on the line for the Walk and Turn test, you can fail.
6) Police will not give you an opportunity to practice before taking the tests.
7) The police are very subjective in administering these tests. Most police already have their mind made up to arrest before they actually administer the test.
8) Police do not have a comparable baseline for field sobriety test performance when intoxicants are not a factor.
9) Back leg and inner ear problems can cause a person to do poorly on field sobriety tests.
10) Police officers do not adequately screen for back, leg, inner ear, or other medical issues that could cause someone to do poorly on SFST divided attention tests.
11) Numerous medical conditions can cause HGN. Alcohol is NOT the only cause of HGN.
12) ADD and ADHD can cause a person to do poorly on SFSTs, even if the person has not been drinking (or even if they have been drinking alcohol and are not over the illegal limit). A person with ADD or ADHD can fail an SFST with NO alcohol in their system.
13) The field tests lack scientific validity in determining alcohol or drug intoxication.
14) NHTSA studies validating SFSTs do not use accepted scientific methods and standards.
15) Neither the original NHTSA studies nor the validation studies have ever been published in a peer-reviewed publication to demonstrate scientific reliability.
16) There were numerous false positive police opinions in the SFST validation studies.
A DUI/OVI suspect should never submit to any field sobriety test or standardized field sobriety test. It is a prosecutor’s nightmare when the suspect does not submit to these tests. Without the SFST evidence, police have much less evidence to use to try and convict the suspect.
The officers are trained to administer these tests for the sole purpose of finding probable cause to arrest the suspect. Without SFSTs, the evidence for finding probable cause to arrest greatly decreases. The remaining evidence is even more speculative: the alleged odor of alcohol, bloodshot or watery eyes, and slurred speech.
Should the officer want you to admit that you have been drinking- DON’T DO IT! Simply tell the officer that you want to speak to a lawyer before you say or do anything. You are allowed to assert your right to remain silent. The government has the burden of proof. You do not have to give them evidence. They must produce the evidence against you without your assistance. The less evidence you give them, the more difficult it is for the government to convict you.
REMEMBER: SAY NO NO TO THE PO PO—————— AND CHOOSE TO REF– USE!
JAMES NESCI, ESQ., DEFENSE OF DRIVING UNDER THE INFLUENCE CASES, GARRIOTT’S MEDICOLEGAL ASPECTS OF
ALCOHOL, 387-401 (James C. Garriott ed., 5th ed. 2008).
NAT’L HIGHWAY & TRAFFIC SAFETY ADMIN. DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING MANUAL,
(1987, 1992, 1995, 2000, 2002, 2004, 2006, 2013 eds.)
OHIO REV. CODE ANN.§ 4511.19 (LexisNexis 2014).
State v. Homan, 89 Ohio St. 3d 421, 732 N.E.2d 952, 2000 Ohio LEXIS 2003, 2000-Ohio-212.
Read more in this series:
Say No No to the Po Po! (Part 1 of 6)
NHTSA Manuals (Part 2 of 6)
The “Reports” or “Studies” (Part 3 of 6)
What Does It All Mean? (Part 4 of 6)
The Ohio Legislature’s Response (Part 5 of 6)
Conclusion (Part 6 of 6)