Interviewer: What would you say are some of the top ways that people miscommunicate? What are some things that get misinterpreted during this whole process?
Court Koehler: I’d say the number one misconception that I try to tell everybody is that you actually don’t have to take the field sobriety test – which is mind blowing, because almost every case that comes across my desk, the person is taking the field sobriety test. The reason is they think they have to take the field sobriety test because police officers get good at making you think that you’re obligated to do things that you’re not necessarily legally obligated to do.
You can actually refuse to take the field sobriety test. It’s just like your refusal to speak – your right to remain silent. It is the same for field sobriety tests; you don’t have to take them. And so the number one miscommunication or misconception among people is that you don’t actually have to take the field sobriety test and it is almost always a really bad idea to take the field sobriety test because it doesn’t ever do you any good. It’s only going to hurt your case because you’re just giving the officer more opportunity to observe clues that he can use to develop probable cause to arrest you.
The other miscommunication – and I was talking about a little earlier – is that the field sobriety test are sort of a scientific, ironclad way of determining whether somebody is intoxicated. They’re really not; they’re just sort of loosely based on observational studies that were done by the NHTSA.
Also lots of people have trouble with field sobriety tests, even if they’re completely sober. Each test that they give has a certain number of clues. For instance, if you take the One-Leg Stand test, there might be several different clues, or several different things you could do that would be a clue that an officer could use. They range from everything from listening to the instructions to holding your leg up for the right amount of time, and your balance and things like that. So when a person that’s not intoxicated and takes one of these tests, they’re going to get some of the clues. It’s very difficult to do everything exactly right and how the officer asks you to do it. And so the test is not really very valid when it comes to determining whether somebody is actually intoxicated. And it’s easy to fail. Some people, when they’re nervous, will do worse on them than other people.
Another thing: a lot of people have physical problems that prevent them from taking the test the right way. If you have a recent surgery or you have balance problems because of some sort of physiological issue, that can pretty much prevent you from passing that test, no matter how sober you are.