Getting Unreliable Evidence Excluded From Drunk Driving Cases

Before the police can arrest you, require you to take a breath test or search your vehicle, they need probable cause for their actions. One of the most common ways the police attempt to establish probable cause in OUI cases is by administering a series of field sobriety tests.

If you have been charged with drunk driving in Massachusetts after taking and allegedly failing the field sobriety tests, Bedford-Concord OUI defense attorney Peter G. DeGelleke may be able to defeat your charges by challenging this key element of the prosecutors' evidence against you.

Understanding How the Standardized Field Sobriety Tests Work

Police officers have traditionally used a variety of roadside tests to try to determine whether drivers who are pulled over are under the influence of alcohol or drugs. The National Highway Traffic Safety Administration has approved a specific set of three field sobriety tests:

• One-leg stand: Can you raise one foot six inches off the ground, hold your arms at your sides, look straight down and count out loud until the officer asks you to stop?
• Walk and turn: Can you take nine heel-to-toe steps in a straight line, pivot on one foot, and walk back the way you came in the same manner, all while counting out loud?
• Horizontal gaze nystagmus: Can you hold your head still and keep a steady gaze on a pen, light, or another object that is being moved back and forth in front of you?

If these tests are not performed according to very specific guidelines, they are not considered reliable at all. Even when performed correctly, they are not necessarily reliable, because there are plenty of things other than intoxication that can cause people to fail one or more tests.

Despite police and prosecutor claims to the contrary, field tests are an unreliable indicator of sobriety and are primarily used to gather evidence for use against suspects.

Challenging the Results of a Sobriety "Test"

Hopefully, you limited the accumulation of adverse evidence, beginning with being respectful and responsive when the officer pulled you over. If you were argumentative or uncooperative, the prosecutor and jury are likely to think it was the alcohol talking rather than an unimpaired driver. Most people do not know that they have an absolute right to refuse to perform any field sobriety tests — and the fact that you refused cannot be used against you.

These so-called "tests" are nothing but coordination exercises that may not prove anything at all about sobriety. Indeed, the trial judge should be asked to prevent the police or prosecutor from using the word "test" in describing what you were told to do. Some of the "tests", such as the horizontal gaze nystagmus and the portable Breathalyzer results, cannot be used at trial in Massachusetts.

The primary problem with field tests is the officer's failure to establish a baseline. In other words, the officer does not know how you perform on these tests when no alcohol is involved. As you would expect, sober individuals vary widely in their ability to perform balance and dexterity tests.

There are a number of excellent strategies for weakening the officer's testimony about your performance on the field sobriety tests, as well as his or her claims that your eyes were glassy and bloodshot, you were unsteady on your feet and there was an odor of alcohol from you or the car.

Contact a Defense Attorney to Learn More About Challenging Your Roadside Test

Mr. DeGelleke has obtained many acquittals and dismissals for his clients by challenging field sobriety tests. To schedule a free consultation to discuss your options with an experienced OUI defense lawyer, please contact Mr. DeGelleke's office at 781-275-0800 or complete an online contact form.