Subscribe to LexTalk to stay on top of today’s legal issue and trends.
Catapult Your Career |
Industry Insights & Trends |
Product Training & Tips
When a police officer is conducting a DUI investigation on a driver that has just been stopped, it is standard procedure for the officer to ask the driver to participate in a series of field sobriety tests. These tests have been developed by law enforcement organizations to provide an indication of whether or not a person is under the influence of drugs or alcohol based on his or her performance. Almost all of the field sobriety tests used involve an officer’s evaluation of the test-taker’s ability to complete the test, which can involve walking, balancing and other physical acts. For many test-takers who have disabilities, the field sobriety testing can create a host of problems.
Some of the more common tests performed include the walk and turn test, the one leg stand test, the Rhomberg balance test, the finger to nose test as well as other tests designed to measure physical agility and balance. A person who is disabled would have great difficulty performing tests that require walking, balancing or other physical activities. The person’s automatic poor performance on these tests may be cited by the police officer as evidence of intoxication when preparing an incident report on a DUI arrest.
In addition, tests such as the horizontal gaze nystagmus test, which measures certain automatic eye movements that occur at certain angles when a person is intoxicated, can also be affected by disabilities that a person may have or medications that they may be taking.
Even though these tests can be unreliable, a driver’s performance on the field sobriety testing is often given a significant amount of weight. If the driver does not agree to take a PAS test and does not display any other obvious signs of intoxication, the field sobriety test results may be the only factor that provides justification for a DUI arrest. Before a driver can be arrested for DUI, the investigating officer must form a reasonable suspicion that he or she is under the influence of drugs or alcohol. The field sobriety test performance can end up being the only thing providing the basis for this reasonable suspicion.
If the defendant can establish that his or her poor performance on the field sobriety tests was caused by a disability, there may be ways to attack the police officer’s allegations in court. A judge may determine that the resulting arrest was unlawful, especially where the defendant’s arrest was based solely on his or her poor field sobriety test performance. The court may entertain a motion to suppress pursuant to California Penal Code Section 1538.5, and if granted all resulting evidence would be suppressed. In these cases the prosecutor would be unable to proceed and would typically dismiss the case. Even if there are not grounds for a motion to suppress, showing that the defendant’s disability affected his or her performance on the field sobriety testing can be powerful evidence to rebut assumptions about whether or not the defendant was actually under the influence.