Use of Video Recording during Field Sobriety Testing

Interviewer: Are the tests always videoed?

Court Koehler: No, they’re not, unfortunately. It varies from agency to agency. For instance, if you get pulled over in Utah by the Utah Highway Patrol, they pretty much always have dash cams. Not every police agency, though. So you have Salt Lake City police. You might have Park City police. You have different sheriffs in different counties. All these different agencies. They all have different policies and they all have different availability for these dashboard cams. Some officers are also starting to wear cameras or microphones on their body. They’ve got some cool ones actually that they came out with recently that go on your glasses. So if the officer is wearing a pair of sunglasses, then there’s a camera attached to the side of the sunglasses there.

It depends from agency to agency but there’s definitely not always a video and I wish there was because it almost always helps my client out when there’s a video. You see it a good amount of time; more often than not there is a video but there are definitely plenty of cases where a client is not fortunate enough to have had the check and balance of the dashboard camera video or the audio recording equipment so that you can see whether the officer was actually doing everything the way that he was supposed to.

Interviewer: When someone performs a field sobriety test, can they get charged and arrested for a DUI just solely based on that or will they have to perform additional tests if they fail the field sobriety test? How does that work?

Court Koehler: Yeah, legally the officer could arrest them for DUI even without any tests at all.

Interviewer: Really?

Court Koehler: Yeah, but the officer has to have probable cause. That’s what you need to arrest somebody. So you have to have probable cause if somebody is intoxicated. Theoretically it’s possible that maybe he pulled somebody over and they’ve been driving really erratically and crazy and he doesn’t even get out of his car and this person jumps out of his car and they can’t walk straight and they smell like alcohol and they fall down on the street and they pass out or something like that. That guy is probably going to get arrested for D.U.I even though he hasn’t had any interaction with the officer at all. In practicality, it’s pretty tough to fight a case like that. That would be pretty rare.

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Most of the time you’re going to have to go through these tests in order to determine whether or not the officer has the probable cause required to arrest somebody for DUI You don’t necessarily need any tests, or maybe sometimes you do one and not the other ones. Anytime there’s sort of a break in the consistency and the regiment that an officer normally does – say they don’t do one of the tests or they do the tests in a strange order, like they give you a breathalyzer first or something like that – that is usually a red flag for the driver’s license division or the courts and the judge that something was going on there, that the officer didn’t conduct the inspection in the right way.

So it will be maybe tougher to get a conviction if they don’t do all three tests, but it doesn’t necessarily mean that they have to.

Interviewer: What is typically the case that you’ve observed in these kinds of instances where a police officer will conduct the field sobriety test? What will usually happen after that? Will they give them an additional test like the breathalyzer, or will they be arrested?

Court Koehler: What I see most of the time is they’ll give you the field sobriety test, and then if you fail the field sobriety test, which basically everyone does, they will then give you what’s called the portable breath test. This is the greatest misconception of all. This is the machine that they put up to your mouth and you’re going to blow in it and if you blow below .08 then you’re okay and they’re going to let you go. Actually, the portable breath test is not the breathalyzer that they’re going to use in court after you get arrested and charged with DUI

This is a tiny little hand-held device that is not accurate enough to be admissible in court. Courts won’t accept this as evidence of your actual blood alcohol level. What they use it for is probably cause. What it will tell them, essentially, is whether or not you’ve been drinking at all. It will give a number, just like the breathalyzer does. It’ll say you’re .09 or you’re .05 or something like that. But that number is pretty unreliable and really what the officer is doing is he’s giving you the test to develop more probable cause.

So it’s almost like a field sobriety test. It has no evidentiary value in court other than to establish probable cause for the officer to arrest you. It’s the only thing they can use it for, legally. So that’s the next thing they’ll do. They’ll put that up to your mouth and you’ll feel like you have to blow. Just like the field sobriety test, you don’t have to take that test. You do not have to blow into that machine, and there’s nothing really good that can come of it. I’ve almost never seen a case where somebody blows into a portable breath test and then the officer sees that they have only blown a .02 and then they just let him go. It just doesn’t happen that way.

By Court Koehler

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