Recently in Field Sobriety Tests Category

June 26, 2011

Middle Pennsylvania DUI Case Dismissed at Preliminary Hearing

I recently took a second offense DUI case out of Mifflinburg, Pennsylvania, Union County. I was reluctant at first, because I couldn't point to Mifflinburg on the map or Union County. I knew it must be somewhere in the middle of the state. However, I wanted to help this guy out and get his charges dismissed. As the saying goes, "if you buy, I'll fly."

The case all hinged on the officers observations of my client and the field sobriety tests (link to field sobriety test page) since my client refused any chemical testing of his blood. When I arrived at the prelim., I didn't think I had a chance of getting the charges dismissed at the prelim. level. I thought "big city attorney in a small town, not a chance with the local politics." However, I was pleasantly surprised. I cross-examined the police officer and used a few helpful techniques I picked up along the way that helped me get the case dismissed.

When I read the police report (at the prelim. Known as the affidavit of probable cause) I noticed my client was charged with speeding but no other traffic offenses. I cross-examined the officer and established that my client traveled 3-4 miles without crossing the double yellow or fog line. This is significant. Most drivers cross these lines inadvertently on a day to day basis without being drunk. Heck, I cross the lines everyday when I go to work. It's pretty hard for a guy to be too intoxicated behind the wheel and drive the car as straight as an arrow.

Next, police officers usually put standard boilerplate language in every affidavit of probable cause. I've done hundreds of DUI cases in Pennsylvania and they all say just about the same thing: "I noticed an odor of alcohol emanating from the vehicle, and the suspect exhibited bloodshot glass eyes and slurred speech which are consistent with intoxication. The suspect then fumbled for his license and registration." Like clockwork the police will put these items in their report. In this particular case, the officer left a few of these things out.

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June 21, 2010

Field Sobriety Testing in Pennsylvania: Refuse, Refuse, Refuse

When a police officer suspects that a driver has been operating his or her vehicle under the influence of alcohol or a controlled substance, they will often ask them to perform a field sobriety test. My office consistently advises our clients to refuse to submit to such testing. However, more often then not, drivers will do as they are asked. Submission to such a test, especially if you have been drinking is likely to result in your arrest for DUI. In Pennsylvania, field sobriety tests are not mandated by law. You have no obligation to submit to them. They are used by the police to establish probable cause in order to arrest you for DUI and WILL be used against you at trial to justify your arrest.

Field sobriety tests are designed so that a police officer will be able to pick out certain physical characteristics of intoxication. Officers will employ such tests as the standing on one leg test where police instruct the suspect to stand on one leg, with the other foot suspended about 6 inches off the ground and count aloud. The officer will then time the suspect for thirty seconds. The officer is looking for indicators of impairment such as swaying while balancing, using arms to balance, hopping to maintain balance, not counting in order and putting the suspended foot down. Attempting to perform this test sober is difficult for many people and if you have been drinking will be nearly impossible.

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April 30, 2010

Pennsylvania DUI Field Sobriety Testing: To Refuse or Not to Refuse?

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.

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