When speaking to a jury, I always refer to Field Sobriety Tests by a much more fair and accurate phrase: “Roadside Gymnastics.” You are set up to fail these “tests” before they are even explained to you. I have come up a list of the top ten reasons why you should NEVER submit to these roadside gymnastics:
10. The officer already suspects that you are under the influence of alcohol or drugs. If you are arrested, he/she will make sure that the police report contains sufficient incriminating evidence to warrant an arrest and then prosecute you criminally. This often leads to an exaggerated or misleading report and then testimony by the officer to support that report if your case goes to trial.
9. The officer who administers these roadside gymnastics has likely practiced them hundreds, if not thousands of times. He was trained in a comfortable environment. It is not fair to expect you to perform them perfectly on your first try under the threat of being arrested.
8. Weather conditions such as rain, cold temperatures, ice, wind, snow, and fog may significantly affect your ability to perform the “tests.”
7. The testing area may affect your performance. Any uneven surface, gravel, cars whizzing by, inadequate lighting, or the absence of a visible straight line (for the walk and turn test) may negatively affect your performance.
6. You do not know whether you will perform these roadside gymnastics to the officer’s satisfaction. You make think that you can perform the tests well enough, but there are many cues of impairment the office is trained to detect, many of which you aren’t even aware.
5. If you are not in perfect shape, you will probably have some difficulty performing these roadside gymnastics. If you are tired, nervous, overweight, over 65, have poor balance, poor knees, a back back, or any one of dozens of physical flaws at the time, your chances of completing the tests to the officer’s satisfaction will be diminished.
4. There is no standard of comparison to evaluate your performance on these “tests.” The officer administering them has probably never met you before, and almost certainly has never tested your balance or coordination. Without a basis for comparison, or knowing your “normal” or “sober” motor skills, coordination, or balance, the officer is in no position to associate your level of performance with intoxication.
3. Dozens of scientific studies have shown that the “standardized field sobriety tests” are not as reliable as they were once thought to be. The validity of the tests also become significantly compromised with any deviation from standard testing procedures. More often than not, officers make at least one, if not several, mistakes in administering these “tests.”
2. You are not required to perform the field sobriety tests! Unlike refusing the breath test, which may have license loss consequences, there is no penalty either from the courts or the Registry of Motor Vehicles for refusing to perform a roadside gymnastics routine.
1. Your refusal to perform these “tests” is inadmissible in court. The jury will not hear that you refused to perform them. Even more importantly, the jury will not hear any mention of these test whatsoever- the officer cannot even mention that he OFFERED you the opportunity to perform these exercises!
Summary: If a police officer asks you to perform Field Sobriety Tests in Massachusetts- don’t!