Should I talk to the police? The answer to that questions is almost always no.

If you have been just pulled over and they are doing an OUI investigation, the best thing to go is to be polite and courteous, but say as little as possible. [Read more…]

There are many absolutely legitimate reasons why you may have failed the field sobriety tests given to you at the side of the road by the police.

These are reasons that have absolutely nothing to do with you being drunk or impaired in your ability to drive. These tests are given to people in situations where it is impossible for them to pass, and where they are administered incorrectly, unfairly, and unscientifically. A few examples of this are:

1 You Have Bad Knees

It should be obvious that if you have problems with your knees, it can be difficult or impossible for you to complete the one leg stand test or nine step walk and turn test. The police officer is supposed to ask you if you have any medical condition that would prevent you from performing these exercises, but they often don’t.

I had a case in the Ayer District Court where I was able to get medical records that showed my client had a knee operation, and his balance and coordination were impaired. [Read my actual case win here].

2 You Have a Bad Back

Similarly, if you have back problems, standing on one foot or walking on a straight line can be a difficult or impossible task under any circumstances. The officer should not ask you to do these tests if this is the case, and the results are not scientifically meaningful as they may related to impaired driving.

I had a case in the Boston Municipal District Court where my client had problems with his L4/L5 vertebrae.

The judge specifically said after he found my client not guilty that the reason why he ruled that way was the medical evidence, as it explained why his balance and coordination were not perfect.  [Read my actual case win here].

3 You are Tired

It is late in the evening when most people are pulled over and asked to perform field sobriety tests on suspicion of OUI. Your ability to perform physical tests of agility and balance is certainly diminished if you are tired. Did he officer ask you if you were tired? Did he ask you if you’ve been up for 18 hours, or driving for several hours? They rarely do, and I will always point this out as a very reasonable explanation of why you may have failed.

I had a case in the Hingham district court, where my client said he had driving from Maine. He had been driving for a couple of hours, and it was late at night. The officer performed no investigation as to how much sleep he’d had the night before. I argued that his unsteadiness was consistent with fatigue and lack of sleep. [Read my actual case win here]

4 You Are Overweight

According to the officers training manuals used in Massachusetts police field sobriety test administration training, you are not a candidate for field sobriety tests if you are 50lbs overweight.

This is an often overlooked fact. Many cops aren’t going to notice this.

5 You are 65 or Over

Again, according to the officers training manual, you are not a candidate for this test if you are 65 years old or over.

Balance and coordination for these dexterity tests rapidly diminish in most people as they age.

They shouldn’t even give you the test, and the results are scientifically and statistically meaningless!

6 You Are Nervous

These are high stakes, high stress tests with serious consequences – if you fail, you will be arrested! Nervousness can be a huge factor in performing these physical tests of dexterity.

Honestly, this applies to almost everyone.

I will put the jury in your shoes, and have them imagine what it is like to have to perform a balancing act on the side of the road, with cars whizzing by. And knowing if you fail, you will be handcuffed and taken to jail.

7 Improper Conditions

The officer’s training manual is very clear about the conditions in which these tests must be administered. Are you asked to balance on a spot where there is a slope? Are you asked to walk an imaginary line because there is no actual line by the side of the road? If so, these test results are not considered scientifically valid, and should be discounted or ignored.

Police officers make these mistakes frequently, which is why it is critical for your attorney to A) visit the scene of the arrest to assess these conditions, and B) challenge the officer on cross examination with what it says in his exact training manual about how he failed to administer the tests according to who he was explicitly taught.

I had a case in the Westborough District Court. I went to the scene, took photos of the spot where the officer had my client perform the field tests, and showed how the pavement was sloped. I showed the jury the officer’s training manual how the tests were supposed to given on a flat surface only. They came back with a not guilty verdict. [Read my actual case win here]

8 Improperly Administered

Again, going back to the officer’s training on how to perform these tests – The guidelines in the officer’s training are very specific. That’s why they are given the training! If the administration, instructions, and scoring of these tests varies from the precise standardized methods taught, the results are not scientifically or statistically valid.

Your attorney must understand these tests and how to challenge them. That’s why I’ve taken the time to not only go through field sobriety tests training process myself, but I’ve gone a step further to be certified as an instructor of how these tests must be given.

It is fair to say that I know these tests far better than almost any officer I’ve ever questioned in court. And that’s a powerful advantage.

9 What do these tests really mean?

Consider that:

• These tests have nothing to do with driving ability. You were never asked to stand on one leg to pass your driver’s test!
• They don’t correlate to any specific blood alcohol level (BAC) (This has been legally established in the case of United States v. Horn)
• Any predictive power is highly variable depending on the officer’s administration of the tests

In fact, if these tests are administered perfectly, under the best conditions, expert researchers say that failure of these tests correlates 80% with having a BAC or .08 or above. A correlation of 80% is simply not proof beyond a reasonable doubt by any legal standard.

If you are charged with an OUI in Massachusetts, and are worried because you were told you “failed” the field sobriety tests, give me a call anytime for a free consultation at (781) 380-7730. I’ll listen to you, give you some free advice & OUI case tips and recommendations. I’ll tell you exactly how I would try to challenge these results and why I think we can still win the case. You have nothing to lose by calling.

Russell Matson, Massachusetts OUI Trial Attorney
(781) 380-7730

“I win more than 2/3’s of the OUI cases I take to trial. If your license and freedom are important to you, call me now for a consultation.” – Russ Matson