19th Mar 2017
Virginia Field Sobriety Tests: Over 200 things that can go Right in Your Favor:
Most defendants stopped for a Virginia DWI dread doing Field Sobriety Tests (FSTs). They feel obligated to do them to appear cooperative. Most of the time, however, the arresting officer at the end of the tests feels like the FSTS provide further proof of intoxication.
In fact, when describing to the magistrate the probable cause for a DUI arrest, the officer often will state things like failure to touch heel to toe during the walk and turn or not balancing while doing the one legged test.
There is no doubt that the officer will describe all the things you did wrong on the FSTs in testifying in front of the judge. Although, the performance of FSTs is intended to be limited to determining probable cause (burden needed to arrest) often, unfortunately and mistakenly, judges will give greater weight to FSTs in determining whether there is beyond reasonable doubt for a DUI conviction.
But did you know that, depending on the number of Field Sobriety Tests performed, there are over 200 things that you may of done correctly?
You should not expect the officer to outright mention the things you did do right to you or to the judge, nor have the prosecutor state them either. In reality, a lot of defense lawyers are unaware that there over 200 things that their clients may of done correctly with respect to the FSTs.
The bottom line is that if you did not do well on the FSTs, there are 5 lines of defenses I use:
1. Are the tests performed by my client non-standardized FSTs or standardized FSTs?
2. Did the officer instruct and demonstrate the FSTs to the my client correctly?
3. Did the officer perform the FSTs correctly? For example, did the officer determine that my client had equal pupils, equal tracking and no resting nystagmus for the HGN test (the eye test). If not, any indications of impairment should be null and void.
4. Did the officer know what to look for while my client was performing the tests to indicate impairment? Example, officer may say my client failed to touch heel to toe during the walk and turn test, but a defendant is allowed to have half an inch between heel to toe and still be considered passing.
5. Finally, if my client is not doing well on the FSTs, then put it in context. Example, lets say the officer testifies that the my client missed heel to toe on steps 9 and 3 during the walk and turn. A judge hearing only this evidence may determine that the Defendant did not do well on the test.
However, there are 90+ things that a defendant can do correctly in the walk and turn test. So putting in the right context that the defendant missed 2 things but correctly did 88+ other things correctly can change the judge’s perspective on how the defendant did on the test.
And at the end of the day, isn’t the judge’s (and jury, if trial by jury) perspective the one that matters?