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Attacking Field Sobriety Tests In a DUI Case

  • By: Ronald D. Hedding
  • Published: September 11, 2018

The reason that the police make people do the field sobriety tests related to a DUI in Los Angeles county is because that is one way that they can try to make the argument if the case goes to jury trial that the person that they arrested could not safely operate a motor vehicle In other words, those field sobriety tests are designed to verify whether somebody could safely operate a motor vehicle for purposes of a DUI in Los Angeles County.

Other tests are certainly relevant, like how the person is talking, how they’re walking, how they were driving, whether they got into an accident, whether they were speeding, whether they could follow the instructions of the police officer.

Review of Police Dash Cam Evidence

So, one way to discredit the field sobriety test, and probably the best way that’s now available in today’s technology – unless the police try to cheat and hide it from the defense – is either the dash cam of the police vehicle – if that shows a person doing the field sobriety test and performing them well, that would certainly discredit the field sobriety test if the police try to claim that they failed them.

Another one that has come onto the scene now, again if the police don’t cheat and hide it from the defense, is the body cam. The LAPD is supposed to be wearing body cams out there. Why wouldn’t they have them turned on during a DUI stop where they’re trying to claim that the person can’t safely operate a motor vehicle, is staggering – all the things that they claim in the police report – let everybody else see it.

Let’s not just have it all captured with you. So those are two big ways now in today’s DUI world in Los Angeles to discredit the field sobriety test which is body cam evidence and dash cam evidence.

Review Witness Cell Phone Video

Another one I’m seeing now which is another good one, and this is technology and it’s great – what if somebody else is videoing from their phone, the field sobriety test. That’s another good way to get them. Like the passenger does it.

Some passerby stops. We get that all the time in these cases. I’ve been doing this for twenty-five years. This is great new technology – videotapes. That’s how they’re catching the police on police brutality cases.

They might as well as help out in field sobriety tests and DUI tests. I’ve had people for many, many years that the police are lying about how they did on the field sobriety test. Most people tell me they think they passed the field sobriety test. I know for sure that according to the police they didn’t pass a field sobriety test because they wouldn’t be allowed to arrest them if they passed all the field sobriety tests.

So that’s one way to discredit the field sobriety test. Another way that has been around for a long time is, if the person can pass some of the tests. That helps. Because how could they pass a test if they were so intoxicated, and believe it or not, sometimes the police actually admit that person passed some of the field sobriety test.

I would think now, more and more, with all this video evidence the police have to be very careful about lying about that because if they get caught lying, they’ll be fired and possibly even prosecuted. So, that’s another way to do it. If you can pass some of the tests, that’s a little foothold in being able to prove that the tests were good. You didn’t have a problem. You shouldn’t have been arrested for a DUI.

So, passing those tests is crucial. Unfortunately, it really is relying on the subjectivity of the police. In other words, the police are the ones who judge whether you pass a test or not, and that’s unfortunately, it really should be captured on video and then if you want to take your DUI case to a jury trial, then the jury can judge for themselves whether they think you passed those tests.

Review of Breath or Blood Test Results

Another way to discredit the field sobriety test is some of the other tests. Like for example, they’re claiming you didn’t pass and you’re too intoxicated to drive, but then your blood or breath test comes back under a .08. Bam! Field sobriety test discredited.

You’re under the legal limit. You shouldn’t have been arrested for a DUI and regardless of what the police are subjectively claiming, your results were in the field sobriety tests. Now you have something to say, wait a minute, I’m under the legal limit because believe it or not, you can be charged with a violation of Vehicle Code Section 23152(a) which doesn’t have anything to do with being a .08 or greater.

That has to do with you having alcohol in your system and not being able to safely operate motor vehicle. And of course, how do the police prove you couldn’t safely operate a motor vehicle? The field sobriety test is one way. They’re subjective belief – if they got the little PAS device that says you had alcohol in your system and they claim you have alcohol on your breath, they claim you didn’t pass the field sobriety test, now they an make a run at you for a DUI.

So, bottom line is, if you have an issue related to the field sobriety test, you have to get in front of an attorney. I talk about this all the time the DUI cases I’ve been doing for twenty-five years now, in all of the courts of Los Angeles County.

We talk about field sobriety tests, whether the person passed, what evidence we can get to show that they passed and then we make an informed decision after we’ve reviewed everything whether this is a case worth fighting or whether this is something that we should resolve by way of a disposition.

Ronald D. Hedding

About the Author Named Top Los Angeles DUI Defence Attorney by LA Times and named one
of the Top 100 DUI Defence attorneys in California by the National Trial
Lawyers Association. I'm the attorney other lawyers hire to defend them.