Interviewer: Are there any particular cases where you can think back, that you remember where you defended someone with a field sobriety test and that you feel like that particular case was a personal victory for you?
Court Koehler: I had one case where the officer had given the field sobriety test and he was particularly mean to my client. My client was a guy who was from out of town and he had had some sort of problem with his back recently so he was really stiff. He also had some really lame shoes on at the time. They were cheap flip-flops or something like that. He was having trouble keeping his balance because of these shoes and the back and all of that stuff. He had actually taken all these tests and he told the officer, “I have these problems,” and definitely the officer is supposed to kind of not perform the tests or at least he should view the tests with a grain of salt.
But he just went ahead and did them. Apparently he thought that my client was lying to him about it. So he goes through it and takes all of the tests. Of course he does horribly because he’s got these weird flip-flops on, he’s got back problems, and he can’t keep his balance. My client had told me, “I had a glass of wine two hours before. So I had had some alcohol, but not enough to be intoxicated, not even close.”
The officer gave him the breathalyzer and it came up really low on the portable breath test. He arrested him anyway. This is one of those dream cases that you think of when you’re a DUI attorney. You want to help people that are being arrested and kind of harassed for drunk driving when they’re not even drunk. You don’t get very many of those cases that are that clear cut. But it does happen, so this was my case that I had.
He ends up getting arrested, his rental car gets impounded, he goes through all this trouble and everything and he gets to the station and he takes the breathalyzer test. It’s like a .01, or something like that. But since you’ve been arrested and all that stuff, you still have to go through that whole process. He had his car impounded, he has to get an attorney and pay for that, and so it’s a real unfair pain.
But we were able to be victorious at the DMV hearing so he didn’t get his license suspended. They ultimately dropped the case so he didn’t have the DUI and he got his impound fee refunded, too. So he got away with it without having any sort of problems with his record, but he had to spend all the money to hire me and he had to go through all the pain of being arrested for driving under the influence. That’s one of those times when it that the field sobriety test are really subjective with the way officers view them – how somebody does is really up to what the officer thinks. An officer may be really, really strict when another officer will not. They can’t be trusted for that reason and they also can’t be trusted because of physiological problems or medical problems can alter the results.
Just because you failed the field sobriety test definitely does not mean that you’re drunk or too intoxicated to operate a motor vehicle.
Interviewer: What are some of the ways, beyond a particular height and weight proportion, that also counts toward a field sobriety test?
Court Koehler: If you’re a big guy, particularly top heavy, you’re going to have trouble balancing. That’s not going to affect the Horizontal Gaze Nystagmus, but it’s certainly going to affect the Walk-and-Turn test and the One-Leg Stand test. On the other hand, if you’re a gymnast, you could probably balance the crap out of yourself almost to the point of complete drunkenness, just because that’s what you do. And another thing about these tests is that each person is different. Everybody has a different sense of balance. People with a different center of gravity do really well on those things. No matter what, some people can’t pass them.
Interviewer: In cases like this, what would you say are the biggest challenges that people face?
Court Koehler: The challenge that you face with these field sobriety tests is going to be that police officers have such a strong reputation and have a lot of credibility with the judge and with juries, too. I would say if it’s your word against a police officer’s word, the police officer is probably going to win every time. So if you don’t have any other evidence, if you don’t have the videos or audio recordings or a witness or something like that, and it’s just your word against the officer’s, that is a really difficult sell.
The only time you’re going to be victorious is if you have an officer who has a reputation for pushing the boundaries, or has a lot of complaints, or has a lot of cases where people have complained about him performing the field sobriety test the wrong way. Other than that, the biggest hurdle is definitely the officer’s credibility.
Interviewer: Let me get this straight. If I were in a situation where I was asked to do a field sobriety test, yet I do have an injury, but I didn’t inform the officer of my injury, can that be used in court? Can they say, “He didn’t tell the officer about his injury”?
Court Koehler: Yeah, it can. So what the officer is trying to do at that point is trying to develop probable cause to arrest you. But then they are also going to testify at trial about how you perform. So your performance is relevant not only for the probable cause, but for the actual level of intoxication if it goes to the point of a trial. So yeah, for sure, if you have some sort of an injury and you don’t tell the officer, but we can bring it up in trial. It’s definitely better if you tell the officer there, because it looks better. It’s more credible. It’s going to be harder to convince a jury that you actually did have whatever back problem or leg problem that you’re complaining about, if you didn’t say it at the time. Just because it makes it look like you’re making stuff up.
If you can document it or can show, like you had surgery on August 25th and you got pulled over on September 1st or something like that, then yes, that’s definitely something you can bring up.
Interviewer: What about a situation where I did the field sobriety test, failed it, I took the breathalyzer after being detained, and I maybe took a blood draw or something of that nature and it showed that I had been consuming alcohol and was beyond the legal level – can you just focus on the field sobriety test? If I say, “Hey, it was videoed, it was recorded, and there’s evidence that this was performed incorrectly, or conducted incorrectly,” can you just go on that and still have a chance?
Court Koehler: Yes and no. If the field sobriety tests were conducted improperly, then the best way to attack that is by a motion to suppress the evidence. So what it shows is that if the officer doesn’t perform the tests the right way, then they didn’t develop probable cause correctly. What that means is they didn’t have probable cause to arrest you. So legally, if you can convince the judge of that in a motion to suppress, then they will suppress the rest of the evidence from that point on.
So they’ll say, “All right, you didn’t have probable cause at the point of the field sobriety test.” Not only do the field sobriety tests not count, but they can also not use any of the other evidence that they gained from the rest of the investigation, the most important of which is the actual breathalyzer test result that you took after you were arrested. So if that gets thrown out, then your case is going to get dismissed, because they don’t have any evidence at all.
On the other hand, if that evidence isn’t suppressed, and the breathalyzer test evidence comes in, if you are above a .08, by statute, it doesn’t matter how well you did on the field sobriety test, or it doesn’t matter if they’re conducted the right way or not. Above a .08, you are guilty of DUI. That’s what the statute says. Whether that’s reasonable or not is another debate altogether. If at the point that they get that breathalyzer test result, and it’s more than a .08, then you’re going to be kind of behind the eight ball.
Interviewer: Well, at that point, you may have to look at other circumstances, right?
Court Koehler: At that point, what your option is going to be is arguing that the test was inaccurate so you’re going to have to go into the science of the breathalyzer test. There’s a few other things that need to be done the right way in terms of the way that the actual breathalyzer test was conducted, so you may have a case on that basis. But if you have a result that’s over .08, and it comes into court, then you’re definitely in trouble.