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Cops can ignore field sobriety tests, if suspect passes them

Posted by Craig Penrod | Feb 28, 2014 | 0 Comments

It goes without saying that if you drink, you shouldn't drive. In the state of Arizona, if you are over the age of 21, it is not illegal to drive after drinking, however, driving after drinking an unknown amount of alcohol is illegal. In fact, it could lead to an arrest on the charge of driving under the influence (DUI).

In Tempe, Phoenix or other communities in Maricopa County, it is important that you consult experienced Arizona DUI lawyers like those associated with the Law Offices of Craig W. Penrod, P.C.

An investigation on the charge of DUI can begin in a couple of ways, including:

  • a law enforcement officer stops your vehicle for some type of traffic infraction, or perceived traffic infraction, such as speeding, weaving, or failure to yield, and
  • a law enforcement officer responds to a traffic accident scene where he did not necessarily witness impaired driving.

Either way, just about every police report regarding a DUI investigation will begin with the officer's observations, such as odor of alcohol and bloodshot, watery eyes. These are signs are not necessarily signs of impairment, but the officer may use these observations as a basis for further investigation.

In this context, you will likely be asked to step out of your vehicle and and instructed to perform field sobriety tests (FSTs) on the side of the road. The officer will observe your exit from the vehicle, the manner in which you provide him with your driver's license, registration and proof of liability insurance and the manner of your speech. Depending upon what the officer observes during your performance of FSTs and the suspicions of the officer, you will likely be placed under arrest for DUI.

FSTs are simple physical and cognitive exercises that drivers who are believed to be under the influence of alcohol and/or drugs  are performed. During the FSTs, the driver must perform tasks such as walking in a straight line or standing with one leg off of the ground. The law enforcement officer must grade the FSTs to determine whether or not a DUI arrest may be made.

State appellate courts often look at decisions regarding cases where the evidence is similar to a case they may be reviewing. Recently, the Tennessee Supreme Court decided that the only use for FSTs is to collect evidence and using the results of the tests as evidence to convict individuals for DUI. The decision overturned a 2012 appellate decision that had found a driver should never have been arrested because he had passed six of the FSTs without difficulty.

The trial judge in the case had found no evidence of impairment in the FSTs when he reviewed the dash cam footage. On the roadside, the defendant had performed the four-finger count, recited the alphabet from G to S, and identified for the investigating officer in what year he turned six leading the officer to rate his mental acuity as "excellent." The defendant also passed the one-leg stand and the walk-and-turn test.

After his arrest, the defendant moved to suppress the evidence against him, arguing that there was no probable cause for his warrantless arrest. In making their ruling, the Tennessee Supreme Court justices looked to several other states for similar cases. "We recognize that not all courts that have addressed this question have reached the same conclusion as the Delaware Supreme Court, the Alaska Court of Appeals, the Minnesota Court of Appeals and the Pennsylvania Commonwealth Court," Justice William C. Koch Jr. wrote. "However, we have determined that the approach employed by these courts is entirely consistent with our holdings that determining the existence of probable cause to support a warrantless arrest is not a technical process. Rather, it is a process requiring reviewing courts to conduct a common-sense analysis of the facts and circumstances known to the officers at the time of arrest "we find that performance on field sobriety tests is but one of the many factors officers should consider when deciding whether to arrest a motorist for DUI or similar offenses without a warrant."

The justices reasoned that under the totality of circumstances, passing the FSTs is insufficient to cancel out the effect of other indications of intoxication, including the smell of alcohol and a traffic violation. For this reason, the court reversed the lower court findings and agreed with prosecutors that there was probable cause to arrest the defendant for DUI and ordered the charges to be reinstated against him. The justices noted that the defendant may use his performance on the sobriety tests to raise reasonable doubt of his guilt at trial.

Of course, if the field sobriety tests had been failed, they would have been offered in trial as conclusive, scientifically-based evidence of intoxication.  But apparently they should be ignored if they are passed.  This is called a no-win scenario for the accused. Once an officer stops your vehicle for some reason and then observes the odor of alcohol and bloodshot, watery eyes, he's already made up his mind what type of case this is. Everything after that is merely a procedure for gathering additional evidence of guilt. It is not a process to prove your innocence, regardless of what the officer may tell you.

The FSTs themselves are merely coordination tests that are difficult to pass even under the most optimal of conditions. Because of these concerns, I don't see any value in agreeing to perform the FSTs. Politely decline. The officer will probably arrest you anyway.

It is important that your DUI legal situation should be handled by expert professionals with the experience possessed by the attorneys at the Law Offices of Craig W. Penrod, P.C. Our office offers free consultations for all DUI and criminal matters. Our Arizona DUI attorneys and Arizona criminal lawyers can provide you with the experience and knowledge needed for qualified representation. An experienced Arizona DUI lawyer is vital in DUI cases and our DUI attorneys set that standard. If you're in need of a criminal defense, our Arizona criminal attorneys are ready to assist you.

About the Author

Craig Penrod

Craig W. Penrod was born and raised in Arizona and has practiced criminal defense for over 30 years. Mr. Penrod is a member of the State Bar of Arizona, Maricopa County Bar Association, State of Nevada Bar Association, American Bar Association, American Trial Lawyers Association, Arizona Trial Lawyers Association, Nevada Trial Lawyers Association, Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers.

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