Insufficient field sobriety test conditions can throw off the reliability of what already is junk science, says Fairfax DUI

Insufficient field sobriety test (FST) conditions can make more unreliable the field testing (also known as FSTs and SFSTs) that is already unreliable and is regularly used by Virginia police investigating a possible violation of the DWI law under Virginia Code § 18.2-266 for allegedly driving under the influence of beer, wine, alcohol or drugs. As a Fairfax DUI lawyer, I repeatedly see police engage in willful ignorance to determine any compromises to doing the FSTs, for instance not asking what is the first language of a person who does not seem to speak English as a second language, or not asking if they want an interpreter), and only asking superficially (if at all) about any physical or health ailments that might interfere with the Virginia DWI suspect’s ability to perform such field sobriety tests as walking the line forward and back, and standing on one leg. Sometimes the weather is too cold or too hot, raining, snowing, or with a slick or icy ground. Sometimes the surface is not level, or is debris filled. At other times, the Virginia DUI suspect is wearing insufficient footwear for the tests (for instance flip flops, high heels, or well worn soles), or clothes that are not sufficient for the weather or are too tight or too loose.

Must I do requested field sobriety tests, even if FST conditions are not insufficient?

FSTs are more likely to work against many people than in their favor, even before considering insufficient field sobriety testing conditions (and rarely if ever are such conditions fully sufficient). In Virginia, you have the right to refuse to perform FSTs, with the only legal ramification being that your refusal can be considered by the judge or jury, whichever is sitting as the factfinder in your case, but such refusal is not permitted by the Virginia Supreme Court to be used as consciousness of guilt. Therefore, I am ready to argue that refusal to perform field sobriety tests is nothing adverse against the defendant, seeing that the law permits refusing them, and seeing that a wide panoply of reasons can exist for not doing FSTs, including but not limited to exhaustion, discomfort about having passersby see the defendant being investigated for an alleged Virginia DUI violation, and general discomfort about being investigated for an alleged Virginia criminal offense.

What do I do if the Virginia police officer says s/he will take my physical ailment into account?

Time and time again, I watch Virginia DUI incident videos where the suspect tells the law enforcement officer (LEO) that the suspect has a serious physical impairment, for instance a sprained ankle, a herniated disk, or sore knees from playing sports. Often the police officer’s response is that s/he will take that into account, but typically the only account I see of that is to report the ailment in the officer’s report, and never to say anything more beneficial to the defendant than that. Even if the police officer does not ask you about any physical impairments or ailments — which are insufficient conditions when relevant to your field sobriety test performance — and if you still do the FSTs, make sure to tell the officer about those impairments, because the legality of your arrest depends on the fund of knowledge that the arresting Virginia police officer has at the time of arresting you, and not based on additional information provided after the fact. Most Fairfax police officers and many other LEO’s have audio-recorded body worn cameras to record your telling the cop about any physical impairments or balancing issues.

If I refuse field sobriety testing, will the Virginia police officer still report clues of impairment in his or her police report?

Even if you do not submit to FSTs, the police officer investigating you for a potential Virginia DUI violation is still looking at everything relevant about you that can be reported, and some of that is very subjective. The police officer will report about the extent to which your actions and appearance still appear insufficient, including whether you move unsteadily or slowly, will report about bloodshot and watery eyes (but often will not quantify it), will report about odor of alcohol (but often will not say how strong is the odor), will report about slurred speech (and often not quantify it), will report about what you say, and will report about whether you seem to hold onto your vehicle or the police cruiser for balance and whether you answer questions slowly. The incident video, if any, can help counteract some but not all of such observations. If nothing else, guard how much you talk whenever a suspect of a Virginia criminal offense. You have a Fifth Amendment Constitutional right to remain silent with police, and the more you talk, the more you may mis-state things and may say things adverse to yourself. Moreover, if you are in fact under the influence of alcohol or drugs, your talking can reveal that.

How do I decline to engage in field sobriety testing?

My video and article here include approaches you may take to politely yet clearly decline field sobriety testing, to assert your right to remain silent with police, and to assert your right to refuse searches, as well as to assert your right to have a Virginia DUI or criminal lawyer (even if that right will not be effectuated until later in the investigation). Asserting any of these rights does not require insufficient investigatory conditions, as they are your rights.

Fairfax DUI lawyer Jonathan Katz is among the small percentage of Virginia DWI defenders who is a member of the National College of DUI Defense or the similar nationwide organization, and is also among the limited number of Virginia DWI defenders who has been trained to administer standardized field sobriety tests to people who have actually consumed alcohol, by one of the nation’s top trainers to police for SFST testing. Jon Katz can often meet with you the same day you call or by the next business day. Call 703-383-1100 for your free in-person confidential consultation with Jon Katz about your court-pending case.