The reality is that you will be asked to perform Field Sobriety Tests in less then ideal conditions when you are extremely nervous about being arrested. The National Highway Traffic Safety Administration has admitted that "Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some effect on the evidentiary weight given to the results." But they do not indicate what is meant by "slight variations from the ideal" and how much "effect" that will cause. Even though the government has admitted this, police officers have consistently testified contrary to this statement, always stating the specific sidewalk, street, or highway shoulder they had my client(s) perform these tests did not affect how they performed, regardless of traffic, weather conditions, or photographs showing the uneven, rocky surfaces.
Further, once the officer asks you to exit your car and perform these tests, he is already suspicious that you are intoxicated, thus detracting from him being fair and unbiased. When the police officers have their academy training, and citizens volunteer to go the police training facility, get to drink for free, and then let officers give them field sobriety tests, several aspects of the "drinking school" will be different from your being asked to do these tests in the "field." First, those citizens are not nervous or scared about being stopped by the police. Second, they are in a controlled environment, not outside with all the distractions, and third, they are not in fear of being arrested. These three factors alone give many non intoxicated people difficulty in passing field sobriety tests.
Ideal conditions would be to perform the tests on a flat, smooth surface, inside with proper lighting, when you are not tired, with an officer who knows how to, and does, perform the tests in the prescribed standardized manner. In reality, the majority of the time people are asked to perform field sobriety tests under some or all of the following conditions:
- early in the morning;
- nervous & scared of being arrested;
- tired from a long day;
- poor lighting conditions;
- poor weather conditions (wind, cold, rain, etc.);
- on the shoulder of a highway/street;
- standing on an uneven/slanted/cracked surface;
- dirt & debris on the surface;
- traffic driving by;
- headlights are distracting you, causing you to notice the cars more, and headlights can affect the HGN test
- gusts of wind caused by the cars when you are on the shoulder of the highway (wind in your eyes can affect the HGN test, and your balance)
- semi's blasting by when you are on the shoulder of the highway (extremely unnerving when I stand on the shoulder during the daytime, taking photos of the shoulder where clients have been stopped)
- police car strobe lights flashing, thus distracting your vision;
- an officer standing in front of you shining a flashlight into your eyes;
- an officer not following the prescribed, standardized manner in giving the tests; and/or
- an officer who has prematurely made up his mind you are intoxicated and is only looking for verification (i.e. he won't give you a fair and unbiased evaluation during the tests).
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