Virginia field sobriety testing in DUI prosecutions evidence can be considered in determining innocence or guilt, and not only for a probable cause decision

Virginia field sobriety testing (FST) is commonly sought by police in DUI prosecutions. As a Fairfax DUI lawyer, I know that such testing can be considered in court not only for the probable cause determination stage, but also for deciding whether the defendant is guilty or innocent. Recently, the Virginia Court of Appeal revisited this issue, and made the same conclusion. Forness v. Commonwealth of Virginia, Record No. 1029-21-4 (Va. App., June 28,  2022) (unpublished). Forness underlines that despite the appellant’s complaint, the Virginia appellate courts have previously approved of field sobriety testing for assisting in determining whether a defendant is innocent or guilty of DUI, citing Rich v. Commonwealth, 292 Va. 791, 802-03 (2016) and Lemond v. Commonwealth, 19 Va. App. 687, 695 (1995). Forness. 

Court of Appeals cautions against Virginia field sobriety testing being the sole determinative factor about whether a person is intoxicated or not

The Forness Virginia field sobriety testing case phasizes that “several reasons caution against allowing a person’s performance on a field sobriety test to stand alone as conclusively establishing intoxication beyond a reasonable doubt. See Jones v. Commonwealth, 279 Va. 52, 58 (2010) (noting a person may refuse a field sobriety test because the “person may be tired, may lack physical dexterity, [or] may have a limited ability to speak the English language”); Steven J. Rubenzer, The Standardized Field Sobriety Tests: A Review of Scientific and Legal Issues, 32 L. & Hum. Behav. 293, 307 (2008) (reviewing studies on the reliability of field sobriety tests and warning of the tests’ ‘deficiencies,’ the possibility of error, and ‘unanswered questions’ in relevant research).” Forness. Of course, determining sobriety can consider both physical actions and cognition. Clearly, ability to perform the physical aspects of field sobriety testing can be harmed by obesity, older age, orthopedic impairments, and challenging test taking conditions (for instance, traffic constantly whizzing by as a distracting factor, testing surfaces that are not flat or have debris, weather factors, and insufficiency of footwear and clothing (for instance too skimpy in cold weather).

Refusal to submit to field sobriety tests can be for legitimate reasons beyond not wanting a Virginia DUI investigation

The foregoing Jones state Supreme Court case includes the following language to help a defendant charged under state Code § 18.2-266 for alleged Virginia DUI / driving under the influence of alcohol or drugs defendant argue innocent reasons for declining Virginia field sobriety testing: “A refusal to submit to field sobriety tests, however, can often be explained in terms of innocent human behavior. Unlike instances of flight, the use of a false name, or other acts of deception, a driver refusing to submit to a field sobriety test has not undertaken affirmative action to deceive or to evade the police. Moreover, there are numerous innocent reasons why a person may refuse to engage in tests that are not required by law, including that a person may be tired, may lack physical dexterity, may have a limited ability to speak the English language, or simply may be reluctant to submit to subjective assessments by a police officer. Therefore, we conclude that a defendant’s refusal to submit to field sobriety tests is not evidence of ‘consciousness of guilt,’ and that the Court of Appeals erred in applying this principle in reviewing the evidence of probable cause in the present case.” Jones, 279 Va. at 58.

What should I do if arrested for violating the Virginia DUI law?

If you are arrested for DWI — whether or not you submitted to Virginia field sobriety testing — it is time to obtain the right lawyer for you. Fairfax DUI lawyer Jonathan Katz has successfully defended hundreds of people prosecuted for alleged DUI. Jon Katz fully dissects your case and fully develops your defense to obtain the best possible results in your case. Call 703-383-1100 to schedule a free in-person initial consultation with Jon Katz to discuss your court-pending case.