This Memorial Day weekend will bring with it an increased police presence focused on stopping drunk drivers in Pennsylvania! My previous articles on DUI have focused on topics such as reasonable suspicion, probable cause, and the elements which make up a DUI defense in Pennsylvania (control, impairment, and BAC). If you’re charged with DUI it’s important that your criminal defense attorney focus on pre-trial and trial issues because overlooking either could seriously jeopardize your case.
Field sobriety testing is an area that can cause a problem for the prosecution at trial or during a Motion to Suppress Evidence (pre-trial level). At the pre-trial level your criminal defense lawyer can argue that an improperly conducted field sobriety test should be inadmissible and therefore not used to determine if police had probable cause to arrest you for suspicion of DUI.
At the trial level, a violation of Section 3802a(1) (general impairment) doesn’t require the prosecution to establish a specific BAC level. A police officer, however, will have to testify that the driver was unfit to operate a motor vehicle safely on the streets and roads of Pennsylvania. The testimony regarding the results of a field sobriety test can assist the prosecution’s case especially where the officer didn’t see the person drive the car but found him in control of it. It’s important to keep in mind that the prosecution doesn’t need proof that the officer saw a person operate the car but only that he was in control of it! In Pennsylvania a person can be convicted of Driving under the Influence if the car is parked and the keys are in the ignition.
The Standard Field Sobriety Test (SFST) are frequently administered at roadside when police or state troopers come upon an individual who they believe to be intoxicated. Police use these tests in addition to observing a person’s pattern of speech, disorientation, odor of alcohol, and other movements. Unlike physical presentations (speech, odor, and movements), the scoring of the field sobriety test are subjective. Officers are trained to look for certain errors or “clues” which are believed to have a correlation to a person’s blood alcohol content (BAC). While failure on these tests isn’t required for police to have the probable cause to arrest someone the results are still important.
The prosecution will use the SFST to bolster the Commonwealth’s case if a person fails them. The defense should always focus on attacking the reliability of these tests and establishing alternative reasons for a driver’s poor performance or failure. Unlike chemical testing, a driver isn’t required to take a field sobriety test but keep in mind the prosecution could always use it as “consciousness of guilt” just as if a person ran from the scene of a crime.
I recommend that a person always submit to a field sobriety test because it’s much easier for the defense to argue that the tests are scientifically unproven or unreliable rather than a person has a constitutional right to refuse them. Refusing the test isn’t going to help your case! I believe that the prosecution’s “consciousness of guilt argument” is much stronger than the alternative defense argument. There are three types of field sobriety tests that are approved by the National Highway Transportation Safety Administration (NHTSA) and they are as follows:
- the horizontal gaze nystagmus test (HGN),
- the one leg stand test, and
- the walk and turn test.
I have written previous articles on these tests and I encourage you to read them. All of these tests are premised on the theory that impairment diminishes a person’s ability to perform mental and physical functions at the same time. To safely operate a car or motor vehicle, a person must be able to process mental data and perform physical functions contemporaneously.
The one leg stand test and the walk and turn test are divided attention or psychophysical tests. The goal of divided attention tests is to have the individual demonstrate two or more psychophysical skills such as the ability to process information, make decisions, use short term memory and maintain balance and coordination. Not all police officers are trained on field sobriety testing as training requires a specific certification.