It is common to hear police officers testify in DUI trials that the defendant couldn’t stand up straight, that he could not maintain his balance, and that he had difficulty responding to simple tasks. This is the type of evidence that is usually used to convict defendants, without regard to the driver’s blood alcohol content. This evidence comes from one source, the driver himself. Some of the most convincing evidence comes from the officer’s testimony about a defendant’s performance on standardized field sobriety tests. Let me let me let you in on a little secret: there is no such thing as a passing grade on a field sobriety test.
The public has a misconception of the purpose of field sobriety tests. The purpose is not to make sure that you are sober enough to drive, so that an officer can feel justified in sending a suspected driver upon his merry way. The sole purpose is to accumulate evidence that will eventually be used against that driver in a criminal trial. If a driver gets to the point where he is asked to perform a field sobriety test, rest assured there is no passing grade that will be issued. Skeptical? Watch a sober friend stand on one leg while balancing and counting for thirty seconds, without using her arms for balance, hopping, or putting her foot down too early. If it is so easy to find fault with a sober performance on field sobriety tests, why would one volunteer to assist in their own prosecution and conviction?
The answer is that many people are not aware that refusing to participate is an option. The police officer that initiates the traffic stop will not likely inform their subject that they don’t have to participate. In Mississippi, a police officer may testify that a driver refused the field sobriety test to create an inference that the driver was impaired. However, is it better to have the officer testify that the defendant refused the field sobriety test, or that he failed it? While the answer may depend on the circumstances, most drivers are unaware that they even have an option.