Alcohol, Drug Usage and Age Are a Factor in Performing the Tests Well
The field sobriety tests can be passed, but a lot of it is going to depend on the individual person. Alcohol is a factor and drugs can be a factor in performance on field sobriety tests. There are other issues that can come into play in how someone does on the field sobriety test.
Typically, we will see someone doing better on the field sobriety test if they’re younger. If they’re more physically fit, they’re going to be able to perform these tests better than somebody who is older or overweight.
The standardized field sobriety tests do have certain clues to indicate impairment, and if the clues are not seen, then that person should be considered passing. Most of the time, the officers are going to mark down that they observed or saw certain clues. Whether they did or not is another question.
Can Physical Disabilities Disqualify You from Performing the Field Sobriety Tests?
The standardized field sobriety tests were originally designed to be validated and scored based on a certain age and a certain standard weight. Anybody who was considered 50 pounds or more overweight or 65 years or older was instructed to be excluded from the standardized field sobriety test.
They were just not good tests for someone in those conditions and over the years, those particular factors, weight and age, have just been taken out of the standardized field sobriety test protocols. It doesn’t mean that those factors don’t affect the testing.
It just means that the law enforcement agencies want to cast a bigger net and catch more people and now neither weight nor age is something that would exclude someone from doing the field sobriety test. Of course, that is going to be a factor that will affect performance, but the officers are supposed to do the test anyways.
If somebody is injured, for instance with a back injury or leg injury, the police officers will tell the person, “We want you to do the test anyway, and I will take that into consideration,” but what does that really mean when the test is not designed for somebody who has recently broken a leg or has a herniated disk in their back? It will affect the test.
The officers will do the test anyway and they will get what’s referred to as a false-positive. They will get someone failing the test or not performing as instructed, and it has nothing to do with alcohol or drugs and everything to do with some other physical or age-related impairment.
Can Age and Weight Be Used Defensively If the Police Instructed You to Perform the Test Despite a Disqualifying Factor?
Physical limitations, such as those caused by obesity, definitely would be a defense or to a matter of degree a defense in handling the case. We could explain to a jury, District Attorney or judge what the test means when it has been done correctly. We explain their purpose when they are administered correctly and what relevance or reliability they have when someone is older or overweight or suffering from a physical injury.
Of course, when reviewing the police report or listening to a videotape (if we have one) when the person tells the officer that they have certain physical limitations, it’s always going to be beneficial to the defense. Then we are able to raise that and show that this is something that the person tried to explain to the officer, and the officer just didn’t take into consideration.
Are the Field Tests Ever Administered in Less Than Ideal Conditions?
The standardized field sobriety tests are supposed to be administered in a certain way and certain conditions. They should be given on a level, flat, well-lit surface. If that exists out in the field, the field sobriety test could be done. The officers are also taught that they can transport someone if needed.
They can take them to a gas station where there’s good lighting and a flat surface, or they may take them back to the police station where it’s warm and safe. Of course, if they’re out on the side of the road on the highway, cars are going by with lights, and their are the emergency lights of the car to consider. All of these are things that can affect the reliability of the standardized field sobriety test.
If the area where they did the test was uneven on gravel, then of course someone is going to have difficulty walking the line if there is even a line. They may have difficulty balancing on one foot if the surface is uneven, gravely or if they are wearing high heels. Officers may ask a woman to remove her heels if she is comfortable with doing so.
The problem with that is what is the ground like where they were standing? What is the temperature like outside? If it’s cold outside and the person doesn’t have a jacket on or they don’t have the appropriate number of jackets depending on the weather conditions, rain, whatever, wind, it can affect performance on field sobriety tests.
Someone may not want to take their shoes off on the side of the road where there’s broken glass or who knows what on the ground and those issues need to be taken into consideration when evaluating field sobriety tests.
Issues with Items “in Plain Sight”
Interviewer: Do you have cases where the police will see an item on the passenger seat in plain sight, such as drugs or an open container of alcohol?
It Is Important to Remember That the Officer Is Investigating the Moment He or She Approaches Your Vehicle
Mark Rosenfeld: When an officer comes up to the car to talk to the person after conducting the initial stop, they’re looking for any reason to continue their investigation or get that person out of the car. When they walk up and start to talk to the person, they may see bloodshot and watery eyes, they may smell the odor of alcohol or they may see something in the car that sends up a red flag for the officer.
There may be an open container in the car. There may be beer in the car in the front or back seat. There might be empty containers in the back of the car or something like that, which would give rise to prolonging the detention and a further investigation by the officer.
Sometimes we’ll see other items found in the car, such as legal drugs, illegal drugs, and prescription bottles. We see guns, knives, all sorts of things found in the car when someone is stopped. Sometimes they’re in plain view and the officer walks up and sees it on the floorboard of the passenger seat.
That’s going to lead to an additional detention and likely an arrest, and of course anything like that can justify a further detention and what we’re looking for is what we want is no further detention. We want someone to be given a ticket if they’re pulled over speeding and be sent their way.
Personal Attention
