True field sobriety tests are commonly referred to as divided attention tests. Their purpose is to see whether or not you can pay attention to some very basic rules while performing a simple physical task. If you have no physical limitations the tests assume that you can follow the directions and complete the test. If you are impaired the test will not be so easy to complete satisfactorily. True field sobriety tests are standardized and explained later in this post. However over the last twenty or so years Massachusetts police officer have become somewhat tricky in terms of how they administer field sobriety tests. They administer tests that are unreasonable and not approved by professional authorities. These tests are often developed by creative police officers who have no regard for proper “objective” procedures. In Massachusetts an experienced OUI defense lawyer will exploit the officer’s unfair actions. He will show the jury that the police officer’s conduct is unjust. The result is often an acquittal.
There Are Only Three Nationally Approved Field Sobriety Tests
The National Highway Traffic Safety Administration (NHTSA) has set out three field sobriety tests that meets with its approval. They are the Horizontal Gaze Nystagmus (HGN) test, the Walk and Turn test and the One Legged Stand test. For the most part the HGN test is not acceptable in Massachusetts. Even though it is administered in the field prosecutors are unable to use it in court. That leaves just two tests that have any credibility. The Walk and Turn test requires the suspect to walk nine steps, heal to toe while remaining on a straight line and then turning on one foot to repeat the process in the opposite direction. The officers are to look for eight indicators of impairment. The One Legged Stand test requires the suspect to raise one leg six inches off of the ground and count (one one thousand, two one thousand, etc.) until the officer tells him to put his foot down. This is done for thirty seconds. Officers are to look for four indicators of impairment.
The Police Never Administer These Tests Correctly
Here is what I have seen time and time again for the past twenty-seven years. 1) The officers never administer the tests correctly. The nine steps become ten steps or more. There is no straight line instruction. Many times there is no line to follow. Standing on one leg can be for more than thirty seconds. The height of the leg raise varies from test to test. Often times there is no clear description of what the suspect is supposed to do. 2) The police are unaware of the indicators they are to use to detect impairment.
So, for cross-examination I will often use the NHTSA guidelines. Most police officers are aware of these and agree that they are the authority from which they are trained. But, they do not always explain and demonstrate the test properly. Improper administration of the test makes juries suspicious of the veracity of the officer’s testimony, or at a minimum the accuracy of his opinion. Additionally, no police officer is able to recite the indicators they should be looking for to determine impairment. This troubles juries and brings into doubt the officer’s conclusion of impairment.
Non-Approved Field Sobriety Tests are Unreliable and Should Not Be Admissible Evidence Against the Defendant
The “new” field sobriety tests are idiotic and often impossible to pass. As such they are tricks. What specifically are these? Well, they can change from officer to officer but here is what I see most frequently. There is the alphabet test only rather than recite the alphabet the suspect is asked start somewhere in the middle of the alphabet and proceed backwards until he reaches a particular letter. For instance you might be told to start at “R” and go backwards to “H”. Good luck with that one. Or you might be asked to put your head back and with your eyes closed touch your finger to your nose. This is not a real test. I have convinced judges to exclude unapproved tests as unreliable.
Remember, you are under no obligation to take field sobriety tests in Massachusetts. So my advice is don’t do it. If you have been charged with an OUI in Massachusetts call us at 617-263-6800 or send us an email. Let us represent you.