Michigan Drunk Driving Field Sobriety Tests

Number four of the nine most successful defenses to a drunk driving case are improper procedures relative to the field sobriety tests.  The field sobriety tests are going to be used as part of the OUIL theory of the crime that will be used by the prosecutor.  In other words, was the person operating under the influence of liquor.  In order to prove that theory of the crime, they don’t need to have a chemical test.  Firstly, the question is whether or not the field sobriety tests themselves provide probable cause for the police officer to arrest your client.  Secondly, provide enough information from which the jury can conclude beyond a reasonable doubt that your client is guilty.

In order for you to thoroughly and fully evaluate the field sobriety test, it will require that you study the manuals that are used by the police in obtaining their training.  In fact, I will urge you if you are serious in defending these cases, go to one of the many training sessions where you can yourself become certified in the standardized field sobriety test program.  It’s a minimum of a three day course, so it’s quite a significant time commitment and if you’re traveling out of state it may be a significant money commitment, but the information that you get will be irreplaceable as far as your evaluation of drunk driving cases.

In order for you to really understand what the police are doing when they investigate a drunk driving case, it’s helpful to use the manual and understand that the police themselves divide the drunk driving investigation into three phases.  The first phase is the vehicle in motion phase, which essentially consists of the observations that the police officer makes in the vehicle in motion, what’s the basis of the stop?  Then after the stop signal comes on, and the police is essentially commanding your client to pull over, how does your client respond to that.  That’s the two parts of the vehicle in motion phase.  The vehicle in motion itself then the stop phase, where the vehicle pulls over to the side.  There’s a variety of observations where the police officers are trained to look for in that context.  If they don’t see those things that suggest that your client is not exhibiting signs of intoxication, but instead is exhibiting signs of sobriety.  Once the vehicle comes to a complete stop and the police vehicle comes to a complete stop, then the second phase of the investigation has started.  That’s the face-to-face contact phase. 

Again, there is a list of observations that they are trained to make and a list of techniques that they are trained to use in that part of the investigation.  If you understand that investigation, if you understand the training that they have, you can better cross examine the police officer when they’re on the stand with regard with what they did and more significantly, in most instances, what they did not do relative to your client.

The vehicle in motion phase, they are trained to use their sense of smell, to obviously try and smell and detect the odor of alcohol or the odor of cover up odors.  They’re sense of sight in looking for evidence of intoxication, such as blood shot glassy eyes, blushed face, messy clothing, and so forth.  As well as some of the other things they are trained to look for, such as the manner in which the driver is able to produce the vehicle documents.  Do they have to search through their wallet or through the console and shuffle through the papers and not seem to understand what they’re doing?

Very often the police will ask distracting questions when the driver is looking for the driver’s license registration and the proof of insurance, the police officer at that time will ask a question like, “Have you been drinking tonight?  Where are you coming from?  Where are you going?   They’re looking not only to see and hear the response by the driver but also to see whether or not they remember to keep looking after the distracting question has been asked, if they remember to keep looking for the documents.  If they don’t remember to keep looking, that’s a sign of intoxication.  If they are able to divide their attention between the question that’s asked and the prior question, which is to look for the documents, they can divide their attention and that suggests that they are not intoxicated.

They are also trained to look for the manner in which the person exits the vehicle.  Do they remember to put the vehicle in park?  Do they remember to take their seat belt off?  Do they climb out of the vehicle?  Or did they get out of the vehicle without exhibiting any balance problems?  What your doing is determining whether or not there is more evidence of sobriety than there is evidence of intoxication.  Because if your able to show that, then there may not be probably cause for the arrest, which goes back to issue number two: the validity of the arrest.  This is why understanding the field sobriety test is so important.

The third and most important phase of the police officers investigation is the field sobriety tests themselves.  Now, there are three standardized field sobriety tests that are part of the National Highway Traffic Safety Administrations Standardized Field Sobriety Test Program.  They include the walk and turn, the one leg stand, and the horizontal gaze nystagmus.  I’ve looked at thousands of drunk driving video tapes, of arrests, and I can tell you that in probably less than 5% of them the police officer is improperly administering the horizontal gaze nystagmus test.  They almost always get that one wrong.  They nearly always fail to properly administer the walk and turn and the one leg stand, 95% of the time they are doing it wrong.

If you have this training and you know what to look for, you can see that they’re doing it improperly.  So why is that significant?  Because according to their own training, if the tests are administered improperly, the results of the test are invalid and unreliable.  If the test results are unreliable, they shouldn’t be used in the probable cause determination. 

There is a case that I have cited in my materials, relatively recent case, I believe it was 2008 and in that case there was an argument that the warrant used to draw the driver’s blood was not supported by probably cause.  Why?  Because the police officer was incomplete in his description of the field sobriety test and didn’t include what the person did correctly.  During the cross examination of the officer in that case, the defense attorney was able to show that in fact the tests were improperly administered.  So what did the judge do?  The judge removed that information from the warrant, and as is the law in Michigan, and made the determination as to whether or not there was enough probably cause left over without the field sobriety test.  Why?  The field sobriety tests were not administered according to the standardized protocol.

If you are able to get the field sobriety test knocked out, then you are well on your way to a not-guilty verdict at trial.

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