Just about every OUI case that we handle in some way implicates the field sobriety tests. Most people know a little bit about these tests. Or, at least they think they do. Sometimes you see these being administered on the side of the road. Other times your friends who have been arrested for DUI tell you about their experiences taking these tests. You see them in the movies or on Internet videos, through Facebook, Google+ or YouTube. What you don’t know is that most of these tests are inadmissible in court. They lack scientific reliability. They are not probative of guilt and should never be mentioned in front of a jury. A good, experienced drunk driving defense lawyer is aware of this and will prevent the prosecutor from getting into this evidence at trial.
What Field Sobriety Tests are Used in Massachusetts?
This is a great question. Police officers attempt to administer about six separate tests in Massachusetts. In no particular order these are the horizontal gaze nystagmus (HGN) test, the walk and turn test, the alphabet test, the one-legged stand test, the finger to nose test and the counting test. The HGN test requires a police officer to observe the eyes of a suspect while the person follows a slow moving object with his eyes horizontally. The officer looks for certain reactions in the eyes that, if shown, can demonstrate alcohol impairment. The walk and turn test requires the suspect to walk nine steps, heel to toe, turn on one foot after the ninth step and repeat the process in the other direction. The one-legged stand test has the subject stand on one leg while holding the other leg six inches off of the ground for thirty seconds. The alphabet test and counting test are administered in several ways. The suspect can be asked to recite the entire alphabet or portions thereof. For example, he might be asked to start at “h” and end at “q”. The counting test is conducted similarly and may require the subject to count backwards. The finger to nose test asks the person to close his eyes and touch an area of the nose with one finger.
What Field Sobriety Tests Are Admissible in Massachusetts Courts?
The National Highway Transportation Safety Administration (NHTSA) has approved three field sobriety tests for use in court; the HGN test, the walk and turn test and the one-legged stand test. In order for the HGN test to be admissible in Massachusetts courts the prosecution must show that the test is reliable and that it was properly administered by someone qualified to do so. In other words, there must be expert testimony to support the admission of that evidence. The district attorney in this state is never able to do so. For reasons stated in the Massachusetts case of Commonwealth v. Sands, 424 Mass. 184 (1997), testimony relating to the HGN test is almost always excluded.
The alphabet test, the counting test and the finger to nose test are not approved in the NHTSA protocol. Accordingly, it is the best practice for Massachusetts criminal defense lawyers to move for the exclusion of this evidence; unless of course the tests were performed satisfactorily.
So that leaves only the walk and turn test and the one-legged stand test as admissible in Massachusetts. However, these are not usually given correctly and are subject to attack by the defense. The NHTSA has listed eight indicators of impairment that the police should look for when administering the walk and turn test and four for the one-legged stand test. I have never had a trial where the officer could list each indicator for each test thereby making his testimony on this subject very vulnerable to attack.
Do I Have to Take the Field Sobriety Tests if I Am Pulled Over in Massachusetts?
Absolutely not. Your refusal to take field sobriety tests in Massachusetts cannot be used against you at trial at all. As with a breathalyzer refusal, the prosecution cannot even mention it. Keep in mind that without field sobriety tests and without breathalyzer tests the only thing the prosecution typically relies on while prosecuting you is the subjective observations of the police officers. If you are properly represented a conviction becomes difficult if this is all the district attorney can use at trial.
The Law Offices of Stephen Neyman, PC has been defending OUI cases in Massachusetts for twenty-seven years. Call us at 617-263-6800 if you have been arrested for drunk driving. We can help you.