Florida Criminal Defense and DUI Defense Blog

3May, 11

Challenges to use of improper and non-standardized field sobriety evaluations.

It is highly likely that the police officer who stopped you, or found you behind the wheel in your stationary car, administered field sobriety tests to you before he or she arrested you.

These evaluations can include a wide variety of agility exercises, mental acuity drills, plus the most common three evaluations, the horizontal gaze nystagmus evaluation, the one legged stand, and the nine step walk and turn.

Other evaluations such as reciting the alphabet (or partial alphabet) and anything else the officer may ask you to do in the time between your first encounter with the police officer and your arrest, are being done for one purpose; to gather further alleged incriminatory evidence against you and later use it at your trial.

If these evaluations are allowed into evidence in your state, but were done incorrectly, or if the officer’s decision to arrest you for DUI-DWI was based on non-standardized procedures, your lawyer may be able to argue that the arrest for DUI-DWI was invalid. If the arrest was invalid, then the drunk driving charges against you must typically be dropped.

This is why it is critical for you to remember every detail of all of the conversations and activities between you and the police officer that occurred in the time before your arrest. As soon as possible after your arrest, write down each and every detail of the entire involvement of the police officers, breath test operators, hospital personnel, etc.

Challenges relating to the officer’s competence to administer field sobriety evaluations.

Simply put, if the officer who administered the field sobriety tests is not able to prove that he or she was well trained and competent to give you those tests, your attorney may possibly be able to get the results of those tests thrown out of your case.

If the results cannot be thrown out because the officer is not competent to give the tests, then demonstrating his or her lack of experience or competence in properly administering, demonstrating or “grading” these evaluations may be used to challenge the weight and credibility of the evidence. If your field sobriety evaluations are thrown out, it is likely the officer did not have enough probable cause to arrest you for DUI-DWI.

Your attorney should be able to obtain information regarding the police officer’s training and experience prior to trial or at a pre-trial hearing. Until your attorney gets to question the officer who performed the field evaluations during your DUI-DWI stop, the flaws in his or her training or proper administration of the tests may not appear.

If proof of the officer’s departure or non-compliance with the proper procedures is to be established, your attorney will usually need an expert witness who is an instructor on these psycho-physical tests.

An experienced DUI-DWI attorney likely knows the majority of the law enforcement officers in the geographic region in which he or she practices law, and will typically know which officers are deficient in administering the field sobriety evaluations. Follow your attorney’s advice in retaining an expert to neutralize this evidence against you.

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Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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