Common Defense Problems for Field Sobriety Tests

Interviewer:  What are some of the common defense issues that you raise pertaining to the field sobriety test?

Nate:  I think we talked about a few of them. The big thing with field sobriety testing is that officers have to administer them in a very standardized way, and this is a standardized administration that goes from state to state. It’s a federal level so it’s not going to be different from Milwaukee to Appleton or Wisconsin to Illinois.

Unfortunately, you still see that the administration of these test is questionable sometimes. The manuals that they use to train officers to administer these tests indicate very specifically that if they’re not administered in this standardized way that the results will be tainted and not valid and could lead to false clues of impairment. That’s typically where you see a lot of issues with that.

Court Opinion on the Tests Themselves

Interviewer:  If we change gears here, how do the courts view the administration of a field sobriety test? My first question there was what the judges say about this and if they usually agree with the police.

Nathan:  A lot of leeway’s given, unfortunately, to administration of these tests. They’re all in training manuals. This is on a national level, say, that if these tests aren’t administered correctly and in a standardized way, the results are invalidated due to the potential for false indicators of impairment.

A lot of times, what you see is “it was close enough, there were signs of impairment” or judges are unwilling to make a determination on that and leave it up to the jury. That’s what you see, I’d say, a significant amount of the time.

You can go in and ask or cross examine officers on their administration of field sobriety testing, but you’re going to really have to get across to the jury. They’re the ones that are going to be the decision makers in the long run, whether or not they were administered correctly and whether or not it was judgmental or prejudiced against a claim.

How Do Prove How the Tests Were Administered

Interviewer:  As an attorney representing clients in Wisconsin, how do you prove the tests were administered incorrectly? Isn’t it just your word against theirs?

Nathan:  Number one, I have all of their training manuals dating back to the ’90s, in terms of how they were trained, regardless of how old they are…as police officers, how they were trained on the administration of field sobriety testing. A lot of our local law enforcement agencies have video, which allows you to critique or to evaluate their administration of field sobriety testing. If you’re in court, what you can do is cross examine the police officer and the proper way to do it, which by then, I’m guessing, there will be a significant review of the proper administration of standardized field sobriety testing.

Then, you can analyze that testimony, in terms of the proper way to administer field sobriety testing with the video which actually happened, and then cross examine them on that. If there are any issues relating to officer saying it’s correct versus an attorney saying it’s incorrect, you can always refer back to the manual, which explains it. Those are the manuals that they were trained on. That’s usually how you would make sure that things are accurate.

Interviewer:  How will this information be perceived by a judge or jury?

Nathan:  That’s up to a good trial attorney to determine.

Can You Defend Against a Field Sobriety Test Result

Interviewer:  Can your attorney defend against the results of a field sobriety test? That’s where I want to take this next. My question is are you able to defend your client against the results of this test?

Nathan:  Absolutely. We touched on this prior but absolutely. There is a manual that every officer has in terms of the proper administration of standardized field sobriety testing. That also goes for the type of clues while you perform these tests. Based on their administration, you can defend or attack the validity of these tests.

Interviewer:  I’m going to put you on the spot here. What makes Nathan Dineen qualified to make these points in the state of Wisconsin?

Nathan:  I’ve received my certification as a standardized field sobriety test instructor.
That means that I’ve spent a lot of hours going through standardized field sobriety testing, the training and terms that officers take to administer these tests, as well as the type of clues you’re looking for, what clues could be indicators of impairment, what types of external forces that we were just talking about like the weather, like the type of clothing, the atmosphere, that kind of thing that would impact these tests.