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 Massachusetts Police Officers usually request those stopped for DWI to perform field sobriety evaluations. However, your refusal to perform these field sobriety tests cannot be used against you in court. The introduction of refusal evidence would violate your constitutional right, under Article 12 of the Massachusetts Declaration of Rights.
It is important to remember that no DWI field sobriety test can detect drunkenness or level of intoxication. Instead, a field sobriety test merely measures coordination. This apparent lack of coordination can be used to support the conclusion that the person performing the field sobriety test is intoxicated. However, this is only one possible reason. There are many other reasons which would cause someone to not perform a field sobriety evaluation as well as the police require. Reasons for difficulty with field sobriety evaluations include: lack of sleep, distractions at the scene, an unlevel surface, poor lighting, flashing police lights, footwear, unclear or improper instructions, sand or other foreign matter on the roadway, a slippery surface, medical conditions, weight, visual difficulties, physical impairments, etc...
Tests typically offered include the horizontal gaze nystagmus, the nine-step heel-to-toe, standing on one foot and counting, reciting the alphabet, or touching a finger to the nose. These tests can be successfully attacked at trial. For example, the horizontal gaze nystagmus test and the results thereof are not even admissible without an expert witness to lay the proper foundation. The other tests can also be effectively attacked and refuted.
DWI field sobriety tests are designed to divide the suspect's attention between two different things. The person performing the tests is supposed to listen to the instructions while performing physical tasks at the same time. The failure to follow instructions is held against the suspect and is usually considered evidence of intoxication. For example, during the walk-and-turn test, which is also known as the "heel to toe" test, the DUI suspect is told to stand on line with one foot in front of the other. While the suspect stands in this position, the police officer gives verbal instructions while demonstrating the test. If, for example, you move from the initial position or, begin to perform the test before being told to do so, you fail. Also, while walking the line if you forget to count out loud or touch your heel to toe, you also fail.
There is no legal requirement that a police officer give a field sobriety test. Police are permitted to charge a person whenever their observations of that person, either with or without a field sobriety tests, provides them with probable cause to believe that the person was operating under the influence of alcohol. These tests rely on the police officer's subjective opinion as to whether the person performing them passed or failed.
It is for the judge or jury to decide whether so-called field sobriety tests are a reliable indicator of whether someone's ability to operate a motor vehicle safely was diminished. As with any other evidence, it is for the judge or jury to accept it, reject it, or decide how much weight it deserves. In making the assessment the fact finder may consider the nature of the tests, the circumstances under which the field sobriety tests were given and performed, as well as all of the other evidence of the DWI case. Some of our DUI defenders are former police officers, who have performed countless field sobriety evaluations, or former DUI prosecutors. A couple of our attorneys have attended DWI police academy training and have been trained, tested, and certified in field sobriety testing, DWI detection, and breathalyzer operation. One of our lawyers even has been certified as a Drug Recognition Expert (DRE). Put our experience to work for you.
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