What if you pass the field sobriety tests?
Field sobriety tests are used by law enforcement to analyze whether or not a person might be above a .08% alcohol level, based upon standardized sobriety testing. Although many DUI defense attorneys state that the field sobriety tests are subjective, and cannot be passed, there is a scoring system that officers are trained to use, to look for “cues of intoxication”.
In a recent case, a police report stated as follows, in part:
1. The field sobriety test that Mr. Arrested performed was the “one leg stand.”
2. Mr. Arrested kept his foot off the ground for the entire time of the One Leg Stand test.
3. Therefore, Mr. Arrested “passed” the test.
So, what is the effect in a case when someone passes the field sobriety test? According to the DWI Detection and Standardized Field Sobriety Testing Manual (2013 edition), the One Leg Stand is now considered the most reliable field sobriety test for detecting BAC levels of .08 or higher.
Originally, the test was only considered 65% of the time. DWI Detection and Standardized Field Sobriety Testing (2006 edition), HS 178 R2/06, Page VII-7. (Attachment #2).
Amazingly, over the next 7 years, without conducting any new research or new studies, they decided to create “new” reliability numbers.
The “new” numbers now say that the One Leg Stand is “83% accurate in identifying subjects whose BAC were .08 or more.” DWI Detection and Standardized Field Sobriety Testing (2013 edition), HS 178 R5/13 (page 28 of 31).
Since Mr. Arrested kept his foot off the ground the entire time during the One Leg Stand exercise, it shows that his B.A.C. at the time of the test was below .08, and as a result, even though he passed these field sobriety exercises, Mr. Arrested was still arrested for Driving Under the Influence.
The Law and Probable Cause in DUI csaes.
“Probable cause for a DUI arrest must be based upon more than a belief that a driver has consumed alcohol; it must arise from facts and circumstances that show a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system.” State v. Kliphouse, 771 So.2d 16, at 22 (Fla. 4th DCA 2000) (emphasis added).
For an officer to request that a driver submit to field sobriety exercises, he must have reasonable suspicion that the individual is driving under the influence. State v. Taylor, 752 So.2d 701 (Fla. 1995). See also, Department of Highway and Motor Vehicles v. Haskins, 75 So.2d 625 (Fla. 2d DCA 1999); State v. Brown, 725 So.2d 441 (Fla. 5th DCA 1999); Department of Highway Safety and Motor Vehicles v. Guthrie, 662 So.2d 404 (Fla. 1st DCA 1995).
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14 (1948).
Warrantless searches and seizures are per se unreasonable unless they fall within one of a host of well-established exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed 2d 576 (1967).
Probable cause is one of these well-established exceptions, and the burden rests with the prosecution to produce evidence that the police officer conducting the search or seizure had probable cause to do so. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889 (1968); Doctor v. State, 596 So.2d 442 (Fla. 1992).
The constitutional validity of a warrantless arrest turns on “whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) (emphasis added).
The roadside administration and evaluation of field sobriety exercises necessitates an officer’s purely subjective opinion of performance and impairment. “It is for this reason that probable cause for DUI must be scrutinized all the more in order to prevent unbridled abuse of the awesome power to arrest someone and change their lives forever.” State v. Harkey, 19 Florida Law Weekly Supp. 298 (17th Circuit, County Court, November 28, 2011. Honorable Mindy Solomon).
For these reasons, a Defendant can request a court to suppress evidence in a DUI case, by suppressing the results, and any references, to the field sobriety tests.
However, according to the 1998 San Diego validation study, officers are allowed to make their arrest decisions based on the results of the Horizontal Gaze Nystagmus (HGN) test alone. This basically gives officers permission to ignore any results of the walk and turn and/or the one leg stand.
If you have questions about passing, or failing, any field sobriety tests, please contact our firm for a free consultation. We are always happy to help.