Unapproved DUI Field Sobriety Tests in Florida
The three approved field sobriety tests (eye test, walk-and-turn, and one-leg stand) usually establish probable cause for a DUI arrest. In most cases, prosecutors can also use these FSTs as circumstantial evidence of guilt at trial.
Many officers also force defendants to perform unapproved tests, usually due to personal initiative or departmental policy. These tests directly and indirectly influence the outcome of a DUI case. Directly, they could be evidence of probable cause and even guilt. Indirectly, they fatigue subjects, mentally and physically, so they do worse on the tests that really count.
A Tampa criminal defense lawyer always aggressively challenges the results of the approved FST, as well as the shaky science behind these tests. When it comes to unapproved FSTs, sometimes this aggressive approach is best. Other times, a Tampa criminal defense lawyer allows prosecutors to use these test results in court, because they hurt, instead of help, the prosecutor’s case.
Trick Questions
Alcohol intoxication causes physical and mental impairments. The DUI balance test (more on that below) addresses the physical part. Trick questions gauge the mental component.
“What was the year of your Xth birthday?” is the most common trick question DUI test. Typically, X is a double-digit birthday. Such a number forces subjects to think harder and increases the risk of error.
Assume Jeff was born in 1989. Officer Jane asks Jeff “what was the year of your twelfth birthday?” Jeff thinks for a moment and says 2003, because that’s the year he blew out twelve candles on his birthday cake.
But the year of Jeff’s twelfth birthday was 2002. The year of his birth (1989) was birthday number one. Eleven years afterwards was 2002.
Since trick questions are unapproved tests, the judge may exclude the tests and their results. We stress that both the test and the results are relevant. Jeff’s extended thinking could mean his alcohol-soaked brain wasn’t processing information very quickly.
So, in this particular situation, Jeff’s lawyer would probably exclude the test and result. If Jeff answered quickly and accurately, however, a lawyer might allow the state to use the test and result. Officer Jane was clearly trying to trick Jeff, an aggressive and unfair police tactic that doesn’t go over well with most jurors.
Romberg Balance Test
The head-back, eyes-closed, and touch-your-nose balance test may be the most common unapproved DUI test. If the subject sways or has other physical issues completing the test, many people, including many jurors, believe the subject may not be in complete control of his/her physical faculties.
Despite this view, a Tampa criminal defense lawyer often allows the state to use this test, so the lawyer can cross examine the officer about the three things the Romberg balance test is designed to measure, which are:
- Vision,
- Proprioception (somatosensory ability or muscle control), and
- Vestibular Function (inner ear equilibrium).
Most officers know nothing about these scientific terms. So, when a Tampa criminal defense lawyer asks the officer to explain them to the jury, the officer seems unqualified to assess intoxication and, as mentioned above, more interested in arresting the driver than preserving public safety.
Connect With a Savvy Hillsborough County Attorney
A criminal charge is not the same thing as a criminal conviction. For a confidential consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. Virtual, home, and jail visits are available.
Source:
medlink.com/news/neurology-through-history-the-longevity-of-the-romberg-test
