You must choose to refuse the so-called “standardized field sobriety test” a.k.a. SFST’s. In addition, you must also choose to refuse the non-standardized divided attention techniques known as the modified alphabet technique; counting backward technique; and finger count technique, among others.
1. Voluntary Tests Only
First, you need to choose to refuse these so-called divided attention field tests and techniques because they are completely VOLUNTARY! You don't have to do them. Even though the Po Po DUI dealer will attempt to psychologically coerce you into doing them; or alternatively manage your impression that you must do them because they know most people want to be compliant to authority and/or police figures. You must not take any so-called tests or techniques. These tests/techniques are completely voluntary, yet the police do not have to tell you they are voluntary.
2. Suspect Is Not Permitted to Study, Prepare or Practice before “Tests”
Secondly, why take a test that you have not studied for? In grade school, junior high, high school, college, and law school, we are able to learn the subject matter before being tested. However, with these “tests” you are not permitted to study, prepare, or practice before the testing. Why do a test when you do not know the information about the test? Furthermore, it is unlikely you would know what to study for. Tthe suspect does not know what the police officer is looking for as far scoring the test. In other words, you do not know what is good or bad for purposes of doing the test correctly. The cops are not required to tell you what “clues” they are looking for in scoring these tests. If you don't know what the cops are looking for, then how can they ever claim that is a fair test? Obviously, falling down or stepping off the line are inherently obvious from the instructions. However, other clues on the checklist are less obvious and likely to be observed in suspects who have not had a drop of alcohol. For example, beginning a test too soon, not standing correctly prior to beginning a test, and raising arms more than six inches away from the body, are all subtle wrong answers not obvious from the test instructions.
3. Most Po Po DUI Dealers Do not Know Standardized Instructions
Third, the Government claims, these tests/techniques are “standardized”. However, it is exceedingly rare that any Po Po DUI dealer administers these tests strictly using the standardized NHTSA language. As such, if the cops cannot give you the proper standardized instructions, then you are risking having invalid and unreliable test results being introduced at your trial. Moreover, the legislature in Ohio has intervened and said that officers only need to “substantially comply” with the SFST instructions. If there is no strict compliance with NHTSA standardized instructions, then how can there be any validity to the test results? There cannot be! Nevertheless, this is a much more difficult burden at trial than it is at roadside where you may simply choose to refuse to perform the SFST.
4. Highly Subjective and Negative Scoring System
Fourth, the scoring of the clues is also highly subjective and often times you cannot see the test on the Po Po DUI dealer cruiser camera to determine whether or not the cop is scoring you reasonably. The scoring system is a negative scoring system. In other words, you do not start the test and gain positive points. The cops only score you on what you do poorly. They do not score you on what you do correctly. This is a ridiculous way of testing, and this is not the manner in which we were tested in school. NHTSA SFST studies were not scientifically peer reviewed.
5. No Studies For Different Types/Groups of People. (Not Everyone Is The Same)
Fifth, the studies surrounding these tests never took into consideration different sexes, ages, physical conditions, health conditions, injuries, etc. There is no baseline for different types of people in order to make these tests reliable for anyone except for young athletic males or females who were invited to a police academy to be guinea pigs for Po Po field testing. Further, none of the six NHTSA “validation” studies were scientifically peer reviewed.
As such, even if the SFSTs could be considered reliable under the perfect circumstances, for the reasons above, these tests are not reliable in DUI/OVI investigation. They are applied with a bias toward giving the test the benefit of every doubt and they are designed for you to fail.
Are you or someone you know facing DUI / OVI charges?
If you are facing DUI charges, you need to speak with an experienced DUI attorney as soon as possible. The Law Offices of Steven R. Adams is recognized by Super Lawyers, Best Lawyers, The Best Lawyers in America, National Trial Lawyers Top 100, and is one of U.S. News' Best Law Firms. Please contact us online or call our Cincinnati office directly at 513-929-9333 to schedule your free consultation.