Of course almost nobody passes – they only ask drunks to do that!
To get asked to do FST’s, you have to:
first, be driving badly enough to get pulled over, and
second, be noticeably impaired (smell of liquor, slurred speech, etc.) when the cop speaks to you. Otherwise, they won’t waste time giving you the FST’s – just give you a warning or a ticket for the bad driving that got you pulled over, and get their patrol car back on the road. At sobriety checkpoints, where they stop everybody, only about 20% of the drivers look impaired enough to be asked to do FST’s.
And as far as the jury, I think they’ll believe their own eyes – they see the video recording of the FST’s, after all. And your defense attorney has just as much time to point out actions on the tape as the cop does. Besides, when the prosecutor takes a case to court, there will be more evidence – a breathalyzer or blood test will give real numbers. So there’s no reason to refuse them, if you are actually sober.
I won’t comment on whether or not to take one because that could be construed as giving legal advice (but if I personally were stopped and I knew I was over the limit I would not take one). But “nobody passes” is not true as has been posted before.
With topics like this “nobody” “everybody” “never” and “always” simply cannot be stated with certainty.
Again, not true, I’ve been pulled over, a bunch of times, given FSTs and the breathalyzer, and always have passed both tests (never have gotten arrested).
I agree with pkbites; I’ve administered the SFSTs to scores of people that I did not arrest.
As to the OP, others upthread were also correct. You can have a BAC which is below the legal limit but still be impaired, either by alcohol or other substances. The SFSTs test for those.
You will find your state’s implied consent law will refer to AFTER an arrest has been made or an equivalent, just because you are asked does not mandate compliance.
I may be imagining things here, but you can be charged with impaired driving even if you blow a .07, and you can be charged with have an excessive BAC even if you don’t show signs of impairment?
If so, that would be the best argument against agreeing to the FST…if you blow low then can still go after you based up on the FST video. Otherwise, you’re free.
No, you aren’t free – you will then get a ticket for whatever bad driving caused the officer to pull you over in the first place. But probably not arrested.
My brother recounts a story of getting pulled over. It was after midnight, and he was weaving quite a bit, because he was driving home from a funeral with two sleeping relatives in the car, and was trying to dodge the potholes.
Field sobriety test, and he failed several parts. The one I remember was the “stand on your right foot and touch your nose”: he told the officer that he had been struck by a car earlier in the year, walked with a cane as a result, and could not stand on his right foot for more than a second with no other support. They insisted he try, and he fell over.
Point is, they let him go.
Although I have also seen someone in traffic court for DUI, and his lawyer in cross examining the officer asked if the defendant had told the officer of any medical conditions that might affect his performance in the field sobriety test. The officer said that the defendant had said he had a neurological condition (I forget which one), and had presented paperwork to support that.
Guy was acquitted, but the point is that he probably shouldn’t have been in court to begin with.
Yes lots of people pass. In my experience that with most that don’t there really is very little question of impairment.
What you describe is not one of the standard field sobriety tests. For years cops have been doing their own thing and making shit up when it comes to sobriety tests but those who are properly trained don’t. There are only three tests that are recognized by NHTSA to be accurate and none involve touching your nose.
They claim that the three tests individually have accuracies of 88%, 79%, and 83%. When combined, they “are accurate in 91 percent of cases, overall, and in 94 percent of cases if explanations for some of the false positives are accepted.”
.04 will get you a DUI, anything above .000 will get you a 24 hour out of service order during which time you may not operate a commercial vehicle. Both can be issued regardless of the type of vehicle you’re driving.
Also, there is no requirement for a blood sample after an accident. You are required to submit to drug and alcohol testing after a dot recordable accident, meaning one or more vehicles is towed from the scene, there is an injury or fatality, or hazardous materials are spoiled. Visiting a shitty industrial medicine clinic and signing up for a DOT urinalysis and breathalyzer is enough.
I just tried these tests while fully sober and failed 2 out of 3 tests. I have horrible balance so I cannot stand on one foot for 30 seconds, nor can I heel to toe a straight line without wavering. I am not sure about the eye movement one since I don’t know what a officer would consider jerky eye movement. I have no medical conditions to account for these failures. In court I would be screwed.
Just because you can’t do them perfectly does not mean you failed.
Here is a video that shows pretty good example of what can be seen when doing the test. You can see the eye movements starting at around 1:06. There are some medical conditions which can cause nystagmus. But for the vast majority it will be the alcohol. And the movement in that video is mild compared to some I’ve seen. Its freaky to see someone’s eyes banging around in their skull like that.
But of course you are not getting arrested for just one thing. Its the totality of the circumstances.
I live in Illinois; I served on a jury a couple of years ago on a DUI-related case. There were two separate DUI charges against the guy: one based on the observation of the arresting officer (i.e., field sobriety), and one based on the BAC test. Based on that, it sounds like, at least here, both ways are possible avenues to conviction, and are thus separate laws.
It is one charge here in New Jersey. The statute reads driving while impaired and/or with a BAC of .08% or higher. If the BAC is higher than .08% then impairment does not have to be proven. By law you are impaired if you are at a .08% or higher. Of course you have to prove that there was probable cause to arrest and bring him in to blow in the machine or the reading gets thrown out. If the reading is below .08% it is still theoretically possible to prove impairment in court using observations. And some people are certainly impaired at a lower level, especially inexperienced drinkers. But in my experience our judges don’t take to kindly to presiding over cases in which the defendant is below the limit. So there is usually a plea agreement. The same when the reading gets thrown out due to mechanical failure or some other reason. Here there are no jury trials for traffic offenses including DUI.
In Georgia, we have two DUI charges. The first is a ‘per se’ law where you are understood to be DUI at .08 or more, without having to rely on other factors. The other is ‘less safe’ where a DUI charge can still be made between .05 and .079 if less safe driving acts can be established. Additionally, if I am able to determine you operated a motor vehicle within three hours of being impaired, a DUI charge can be made. Obviously, there are different laws with regards to commercial vehicles and having a child in the vehicle.