I was recently at Phillies game and met with one of my former DUI colleagues from the prosecutorial side of the aisle. I was telling him about my "Pulled Over for a Pennsylvania DUI Article" on my new web page. During the game, we engaged in some friendly banter. I told him that if represented a client that refused a field sobriety testing he would not have a chance to obtain a DUI conviction against my client in a Pennsylvania court. He retorted, "of course I would, I would simply tell the judge or jury, that your client's refusal to submit to field sobriety testing indicates their consciousness of guilt." He continued to point out that the case law allows the prosecution to bring up at trial that the refusal of a suspect to perform field sobriety testing such as the walk-and-turn test, the horizontal gaze nystagmus test, and the one leg stand test shows that they must have had this consciousness of guilt. He retorted, " if they were innocent they would have nothing to hide."
I replied, "yes but you forget one thing, I have my clients refuse these roadside tests not for trial but for suppression of evidence purposes.
We eventually agreed to disagree, but it is still my opinion that no good can come from field sobriety tests and that you should refuse them. Field sobriety tests are designed for you to fail. Even if I do field sobriety tests in the comfort of my own living room dead sober, I will still make 1 or two mistakes and I am in fairly good physical condition. Try to stand in your living room with one foot out six inches above the ground for 30 seconds. Unless you are very athletic, I guarantee you will sway left or right or shake a little. The police would consider this a clue that you are intoxicated. Combine this with the nervousness of doing these tests before a police officer and I believe that performing field tests are a recipe for disaster. Even if you have been legally drinking and under the legal limit of .08% I believe the police would find something wrong with the manner in which you performed the tests.
I remember back when I was a former DUI prosecutor and attended Basic Prosecutor School they had a session on DUI and field sobriety tests. The DUI instructor had volunteers from the audience agree to drink alcohol and perform these tests in front of the class. Even as a prosecutor I remember routing for the underdog DUI contestants to ace the test. I particularly remember the performance of one female test subject. Her BAC was approximately a .10% as far as I can remember. I thought she performed all of the tests wonderfully. I though she stood on one leg very well, I believe she only put her foot down once in 30 seconds and I thought she did the walk-and-turn test particularly well. Nonetheless, she was still failed by the teachers of the course for putting her foot down and making an improper pivot on the walk-and-turn test. I thought she did the tests better than I could have done them stone cold sober! From that point on I realized that field sobriety tests are designed for you to fail and no good can come of them. Therefore, I would downright refuse performing these tests every time you get pulled over and take my chances with a suppression motion. By performing these tests, I believe you are building the prosecution's case and helping them in trial. Even if you are under the legal limit I believe they will be a strike against you. If you are really drunk then they might as well "stick a fork in you." Your goose will be cooked and you will be singing the blues in DUI court.
If the DUI blues does have you down, contact Jason R. Antoine, DUI Attorney and Counselor of Law if you have been arrested for a Pennsylvania DUI on the basis of poor performance of field sobriety testing. My office may be able to help.
