Advice when you fail the field sobriety test and are charged with DUI

Advice when you fail the field sobriety test and are charged with DUI

So you've been pulled over under suspicion of driving under the influence (DUI) or driving while intoxicated (DWI), now what? Are you immediately arrested? Not likely, as the police officer must first establish probable cause (whether or not it’s probable that you are driving while intoxicated) before effectuating a formal arrest.

In establishing probable cause, police have a wide variety of tools at their disposal, including a number of physical tests they can administer, known as "field sobriety tests", preliminary breath tests, and/or just simply observing your behavior, mannerisms, and the general circumstances. While many states do not require you to comply with preliminary breath tests or field sobriety test requests, you may feel scared and nervous about declining the officer's request. The officer may even tell you that you are in "big trouble" if you don't comply (even though you generally aren’t).

That being said, you comply with the officer's request to submit to field sobriety tests, including the walk-and-turn, the one-leg stand, and the Horizontal Gaze Nystagmus (HGN) test, to which you failed. You are then arrested and charged with DUI or DWI. If you do submit to, and subsequently fail, these field sobriety tests, there are a number of things to keep in mind which can still help your DUI defense.


Do take immediate notes

If you failed the field sobriety tests, it could be for a number of reasons, aside from you having too much to drink. That being said, you may not later remember the exact circumstances in which the tests were administered, which may be important in building your defense. It is important to write down exactly what happened the night you failed the tests and were arrested, i.e. what time, what happened, officer's names, weather conditions, road conditions, what tests were administered, what you were wearing, etc.

Do be knowledgeable about how field sobriety tests are to be administered

Police are required to complete the field sobriety tests under a number of regulations and strict procedures, however, experienced DUI lawyers commonly explain that there are a number of personal /physical limitations which not only affect the results of these tests, but affect an individual's ability to even complete them. This is why it is important to not only take immediate notes of the exact circumstances surrounding your DUI arrest, but to be aware and knowledgeable.

For either the walk-and-turn or the one-leg stand tests, any physical limitations such as a broken leg, being severely overweight, or suffering from vertigo will affect an individual's ability to successfully complete these tests. DUI lawyers can even argue that if an individual is over the age of 65, the results of these field sobriety tests would be affected. Furthermore, if an individual is wearing high heels, flip-flops, or any other shoes that may affect his or her ability complete the test, the test cannot be properly completed without removal of the shoes.

Do know about the surrounding conditions

Furthermore, it is not just personal/physical limitations that can affect your ability to properly complete field sobriety tests, as the location, traffic conditions, time of day, or weather conditions may severely impact these results, as well. The reality is that if you are asked to perform field sobriety tests in “less than ideal“ conditions, DUI lawyers may be able to use this to their advantage. Slight variations from ideal conditions, i.e., perfectly smooth surface, low traffic volume, dry ground conditions, and in the middle of the day, may have some effect on the evidentiary weight given to the results.

Do hire experienced DUI lawyers

Failed field sobriety tests give the prosecution ample evidence in their case against you for DUI or DWI. That being said, if you do fail field sobriety testing, it is important to understand that physical limitations and outside factors may play a significant role in the weight given to this evidence and the DUI lawyers may be able to use this to your advantage by questioning the methods used by police and chipping-away at the evidence against you.

It is vital to hire experienced DUI lawyers to represent you going forward with your DUI or DWI charges and not to represent yourself. You should find lawyers who have extensive experience with DUI or DWI cases, are familiar with local procedures, and who will work hard to achieve the best result possible, whether it be through fighting the charges or negotiating a favorable guilty plea.


Do not admit to any alcohol consumption

Simply stated, if you make a voluntary admission to drinking and driving, it doesn't matter that you failed the field sobriety tests or how they were conducted, you will likely be arrested and convicted for DUI or DWI. Plain and simple.

It is a common mistake for those individuals who failed field sobriety tests to think "game over" and admit to the officer that they had a few drinks, but didn’t think they were drunk. This may be one of the worst things you can do. If you have already made the mistake of submitting to the field sobriety test requests, you will not gain anything from making an admission and it is vital not to do so.

Do not attempt to successfully complete the tests

As mentioned above, you are fully within your rights to refuse field sobriety tests. However, you may think that you are sober enough to successfully complete them and that by doing so, you are sure not to be arrested… Wrong. Field sobriety tests are generally subjective tests; meaning that it's up to the officer's judgment whether or not you passed. If the officer believes you had been drinking before administering the tests, there is a good chance you will be failing at least one of them.

All the officer is looking for is enough to establish the probable cause necessary to formally arrest you and have chemical tests done (urinalysis, blood tests, and/or a chemical breath test), which will absolutely confirm or deny their belief that you are driving under the influence. It is important not to submit to these tests under any circumstances, especially if you are overly-confident in your ability to successfully complete them.

Do not argue with the police officer

Arguing with the police officer, being vulgar in anyway, or otherwise making the police officer feel threatened or angry with you is not going to result in anything favorable to your case if you are charged with a DUI, or the police officer letting you go if they cannot establish probable cause to arrest you. It is always best to be polite, no matter if the police officer is trying to provoke you or not. Even if you refuse to do the field sobriety tests, you can still be polite in doing so.

Do not drink and drive

This goes without saying, but the best advice experienced DUI attorneys can give you regarding field sobriety tests and in avoiding a DUI or DWI charge is to not drink and drive. You will not have to worry about what to do after you fail the field sobriety tests or how to proceed with a DUI defense. It's that simple. Call a cab, ask a friend for a ride, or just stay put until you're sober.

Jumping cartoon

If you find yourself confronted by an officer for a possible DUI, don’t dig a bigger hole of fines and penalties by not knowing your rights as a motorist. Familiarize yourself with the sobriety test process, what situations you can and should refuse to take the test, as well as if and when you need to admit wrong doing. Ultimately, the best thing you can do is to avoid driving under the influence of drugs or alcohol. If you absolutely need to travel under these circumstances, you can always ask a friend to be your designated driver. In the end, it will save you a whole lot of hassle and may even save your life as well as the lives of others on the road.

More expert advice about DUI and DWI

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Alex Magid, EsquireDUI Lawyer

Alex Magid, Esquire, is an experienced Pennsylvania DUI lawyer at The Martin Law Firm, P.C., located in Blue Bell, PA. Attorney Magid provides legal representation in the areas of DUI and criminal defense as well as wills, trusts, and estates. H...

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