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Why DWI-DUI Lawyers Say: Don’t Take any Field Sobriety Tests!

Can a sober person fail a field sobriety test? Absolutely, since these are not medical tests and have a very high error rate.

Experienced DUI attorneys advise against attempting marginally probative evaluations. The exercises are called “standardized field sobriety tests” (“SFSTs”) that traffic enforcement police are taught to use (at a roadside stop) to identify drunk drivers, and then place the person under arrest.

These pre-arrest, roadside physical agility evaluations, and eye tests that police ask a person to voluntarily participate in taking. The detained drivers are seldom informed that the evaluations are 100% optional and voluntary.

Driving while intoxicated (DWI) or driving under the influence (DUI) are just two of more than 10 different acronyms used in the United States to identify drunken driving or drugged driving. Others include OVI, DWUI, DUII, OWI, OUI and several more abbreviations.

Stop to think about what conditions make you appear to be drunk, to others, who know nothing about you? Young people often have difficulty recognizing symptoms of disease or medication side effects unless they have had personal experience with a disease or have lived with a person who has such a medical condition.

Watch this viral video of a man buying beer in a convenience store that obtained millions of views, over the last 15 years, falsely portrays this man as being fall-down drunk, when he really suffered from a crippling neurological disease. Everyone who saw this without checking further, JUMPED TO THE CONCLUSION that he was drunk.

Most criminal courts in America agree that a person’s field sobriety test refusal is not admissible as being “consciousness of guilt.” However, many clients forget about that “right to remain silent” and talk themselves into a DUI arrest. By watching this short 8 minutes of video, you will know — once and for all — what to do and what NOT do in almost every state, if confronted by police and questioned or asked to perform “field tests.”

Even NHTSA, the federal traffic safety agency that paid for research on which roadside tests for police to give, concedes that roadside agility tests are optional and voluntary. DUI lawyers call these SFSTs promulgated by the federal agency, which stands for “standardized field sobriety tests.”

No chance to first practice the tests. Some people may need to loosen up their muscles before doing leg movements such as walking or stretching. Individuals are advised by police not to attempt “practicing” the balancing exercises (like standing on one leg) before beginning.

In 1994, Dr. Spurgeon Cole, Ph.D. in clinical psychology, while teaching at Clemson University, conducted a controlled study on the validity of six different roadside agility exercises, that a federal government study on police roadside testing had used. His research team video-recorded people executing these six typical field sobriety exercises on 21 subjects.

Drunk Driving Defense is a national directory of criminal law professionals who have aggressively undertaken additional forensic training, trial technique training and learned how to debunk "police science" related to roadside testing and other screening protocols.

Next, they presented the field test videos to fourteen (14) highly skilled law enforcement officers (averaging around 12 years on the job). The researchers requested them to determine which of the subjects were “too intoxicated to operate a vehicle” and should be arrested.

Unbeknownst to the participating police officers, the BAC level of each of the twenty-one DWI-DUI subjects was zero (no alcohol at all). Officers made an arrest decision of 46% despite everyone having a 0.00 BAC and were factually innocent. Yet, these officers concluded, due to “how the people looked” during agility exercises that each innocent person as being “too drunk to drive.”

This study demonstrated how much subjective bias and error exists in police administering SFSTs. Yet, in the 1977 study conducted by Dr. Marcelline Burns, Ph.D., and her Southern California research team in Southern California, they had a 47% error rate, too.

SOURCE: Cole and Nowaczyk, Field Sobriety Tests: Are they Designed for Failure?”, 79 Perceptual and Motor Skills Journal 99 (1994)

A Review of Medical Conditions that Mimic a Person Being Drunk

The Symptoms of Osteoarthritis. Single aging and “wear and tear” on a person’s body can lead to arthritis. For those who don’t suffer from this disease, pain or an uncomfortable sensation are commonly experienced. Osteoarthritis can include having pain, stiffness, swelling along with reduced function and disability is a variety of degrees or levels.

NHTSA field sobriety tests are not scientific. Because the evaluations are optional and voluntary, do NOT attempt to take them.

Iron supplements can help improve the health and function of joints that bear weight. This addition of iron, for some, can reduce pain and discomfort for certain patients.

Neural tube defects for people with spina bifida can worsen symptoms or cause discomfort, affecting the brain and spinal cord development. Neural tube defects can cause muscle weakness, numbness, or tingling, so it’s either impossible or very difficult to perform any physical police exercises.

Diagnosed or undiagnosed contentions like cystic fibrosis, Parkinson’s disease, restless leg syndrome (RLS) or Meniere’s disease are all illnesses, and “drunk-like” symptoms without drinking can occur. Anything that causes inflammation of the spinal canal such as any type of spinal bifida makes it very tough to put pressure on weight-bearing joints.

These factors can include a long list of medical conditions, including loss of balance symptoms attributable to taking prescribed medications for conditions like high blood pressure, diabetes, shingles, painful neuropathy in feet and toes, Bell’s palsy, gout, or vertigo.

Why Field Sobriety Tests are Not “One-Size- Fits-All.”

Hundreds of different “human” factors can cause a driver to exhibit drunk-like symptoms during a driving while intoxicated investigation. Those in the medical field call this poor muscle control and clumsiness “ataxia.”

This article will point out how (even if the suspected impaired driver has not consumed any alcohol or drugs) she or he may still be falsely arrested for intoxicated driving or drugged driving with NO impairing substance in her or his system.

Lack of sleep, fatigue, stress, and the use of certain medications that have side effects related to unsteady balance. Inner ear problems that come from positional blockage of an inner ear canal by a tiny “floater” is called BPPV (benign paroxysmal positional vertigo). This blockage can create massive imbalance issues (vertigo), that sometimes can dissipate quickly, or it may persist for days.

There are several reasons why a driver might appear drunk without consuming alcohol or drugs. One reason is the use of prescribed medication, such as Xarelto, which has side effects mentioned in TV ads. Another reason is the presence of tumors in the brain or on the spinal cord, which can cause symptoms resembling intoxication.

Even when a person’s physical conditioning is not obtunded, a neurological condition like Huntington’s disease can cause a decline in thinking and reasoning skills, including memory deficits, loss of focus or concentration, slowed judgment. So, this can alter a person’s ability to organize thoughts, follow a set of sequential instructions or be able to organize patterns if walking or standing that are given by police for that person to follow during the SFSTs.

Hundreds of medical conditions such as diabetes, epilepsy, multiple sclerosis, cerebral palsy, and certain neurological disorders can cause symptoms that mimic intoxication. For example, a person with diabetes may experience low blood sugar levels (hypoglycemia), leading to confusion, dizziness, and slurred speech, which can be mistaken for drunkenness.

All of the standardized field sobriety tests promoted by N.H.T.S.A. are voluntary and optional and should NOT be taken.

Fatigue can also play a significant role in causing drunk-like symptoms. Lack of sleep or prolonged periods of wakefulness can impair cognitive function and motor skills, leading to similar symptoms observed in intoxicated individuals. Fatigue can affect reaction time, coordination, and judgment, making it difficult for a driver to safely operate a vehicle.

Stress and anxiety (which happens immediately for some drivers seeing blue lights behind them) can cause symptoms that resemble being drunk, such as trembling and difficulty concentrating.

Additionally, certain medications, herbal supplements, or over-the-counter medications can have similar side effects that mimic a drunk person. Many prescription drugs, some over-the-counter medications, and even low-dose CBD sleep supplements & medications may cause drowsiness, dizziness, and impaired coordination in some people.

Once field tests are requested, some individuals might be aware and then inform law enforcement about how their medications’ side effects could prevent them from doing roadside agility or eye tests. Even people with lingering COVID 19 symptoms (fatigue, muscle aches) need to understand how their previous capabilities may have been compromised.

In conclusion, while alcohol and drug consumption are the most common causes of drunk-like symptoms in drivers, there are various other factors that can lead to similar behaviors and physical manifestations. Medical conditions, fatigue, stress, hypoglycemia, leukemia, and simply taking certain medicines can all contribute to the appearance of imbalance, dizziness that mimic intoxication, even in the absence of alcohol or drug consumption.

It is crucial for law enforcement officers to consider these alternative explanations during a driving while intoxicated investigation to ensure a fair and accurate assessment of a driver’s impairment. However, many just do not have the training or life experience to know or to ask for an alternative explanation.

Every year, over 800,000 people are stopped for a suspected DUI, but not all of them are actually impaired. Certain health problems can impact a person’s driving ability. These symptoms may resemble signs of intoxication when the individual is stopped for a suspected DUI-DWI.

Being convicted of a DWI-DUI is a conviction that you take to the grave, in most states. The federal record remains for life, even if state laws mask the conviction from local court records.

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