Field Sobriety Tests and The Environment
Interviewer: Obviously, we’re talking about field sobriety tests, and I want to talk a little bit about the environment that these tests are conducted in. What about if a test is conducted in an environment that’s conducive to a false positive result?
For example, let’s say the police are administering the test on an uneven surface or on a side of the highway, or there’s oncoming traffic and lights are flashing in the person’s eyes. Does that play a role in the overall field sobriety test?
Nathan: It absolutely does. The big thing that we see here in the State of Wisconsin is winter versus summer, which is not surprising, the level of snowfall on the roads, or the temperature.
Police officers have the right to take you back to a police department or to any covered or heated area so that you can perform a field sobriety test on a flat surface. If there are issues with uneven surface or temperature, those are all things that we would look at in terms of evaluating the performance of a field sobriety test.
Police Taking You Back to an Area
Interviewer: You said the police officer has the right to take you back to an area.
My question is twofold. One is if you have to comply with that, and the second part is if you can request, as someone being pulled over in Milwaukee or Sturgeon Bay, that you’re taken back to an area that maybe is on a more level surface or maybe the weather’s not impacting it.
Nathan: If an officer wants you to do that, you’re either going to have to do it or you’re going to be deemed of effort refused to do them. I’ve never had a client say, “This is not a level surface. I would like to be taken to the police department to conduct this on the level surface.” I’m definite that they would comply with you if you wanted to do that.
The Weather is an Absolute Factor
Interviewer: Obviously, you talked about the weather, it snows quite a bit and there’s quite a lot of ice. Other than the uneven surfaces, does the cold weather, the warm weather, hot, snowing, raining impact field sobriety tests at all in Wisconsin?
Nathan: The answer is absolutely yes. The example I give to you is…I pick a reference. If it’s extremely cold out, what happens when opposing teams come into Lambeau field?
They’re freezing. It absolutely has an impact on their level of play, the quarterback’s ability to hold the football to make long‑field throws, getting hit. There are a lot of things that come into play, and these are just a few of them, yes.
Interviewer: Will the clothes that I wear affect my performance during the test? If so, will it be taken into account by the officer?
Nathan: Yes, it will. Typically, what you will see is the type of shoes. That’s the biggest one. If you have a female client who has four inch stilettos on an officer typically will ask if they’d like to take those off before performing these tests. If you don’t take them off, yes, I’m sure the officer will, by definition, “take it into consideration,” but there’s no guarantees.