OUI: Field Sobriety Tests and Defenses

In Massachusetts, a conviction for operating a vehicle under the influence of alcohol (OUI) can lead to serious legal consequences. In order to stop a driver, police officers must have a reasonable suspicion that criminal activity is occurring. However, to arrest you for drunk driving, they must have probable cause, which is a higher standard. Sometimes officers establish probable cause by conducting field sobriety tests. In many cases, however, they have already decided to make an arrest, and the field sobriety tests are being used to get more information that will support probable cause. Experienced Boston OUI lawyer Patrick J. Murphy may be able to help you fight the charges against you by trying to show that the officers who arrested you did not have probable cause, due to the unreliability of their field sobriety tests.

Massachusetts officers may use three standardized tests developed by the National Highway and Traffic Safety Administration in order to determine whether there is probable cause to arrest a driver for OUI. These tests are known as horizontal gaze nystagmus, walk-and-turn, and one-leg stand. To obtain an OUI conviction, the government bears the burden of proving "beyond a reasonable doubt" that you were under the influence of alcohol. The circumstances surrounding the tests are relevant to the validity of the tests.

In the horizontal gaze nystagmus test, also called "the pen test," the officer will observe your eye movements while you follow the movement of a pen or other stimulus, in order to see whether your eyes involuntarily jerk. This test is a scientific test, which is only admissible in court with appropriate foundational and expert testimony. In some cases, the results of this type of test can be attacked by showing there is not an appropriate foundation or showing the fallibility of the expert.

During a walk-and-turn test, you will have to keep your arms at your side and place your feet heel-to-toe. The officer will ask you to take nine steps heel-to-toe, turn, and take nine heel-to-toe steps back. Among other factors, the officer will evaluate whether you touched heel-to-toe and whether you lost balance or stopped while walking. The officer is not only looking at whether you can perform and complete the test, but also at whether you remember the instructions and how you listen.

In some cases, officers do not follow the proper protocol in administering this test. For example, an officer may try to make you take 10 steps instead of nine or fail to give you appropriate instructions. These can be used to discredit the results of the test and the officer's testimony. The prosecution’s case likely will be undermined if an officer fails to administer a test appropriately.

In the one-leg stand test, officers are examining you for balance. You will have to stand with your feet together and your arms at your sides, while following instructions.

Generally, you are asked to raise a leg six inches off the ground with your toes pointed outwards and your legs straight. You will be asked to count out loud. The office will look at whether you sway while you balance, whether you use your arms to balance, whether you hop, and whether you have put your foot down during the test. You fail the test if you have two or more cues, and if you put your foot down three or more times during a 32-second period. As with the other tests, officers sometimes fail to give proper instructions or require a suspect to stand longer than appropriate, or they may not know exactly what indicates impairment. In these cases, the results of the test may be attacked in court.

Intoxication is not the only factor that can cause poor coordination. Coordination can be affected by diabetes, ear infections, seizure disorders, weight, eyesight problems, and physical problems. The physical environment can also affect the outcome of the test. Lights from the police car, poor lighting, slippery or uneven walking surfaces, weather, and an officer's failure to explain the tests can also result in a poor outcome for a suspect. As part of your defense, your attorney may raise alternative explanations for the results of your field sobriety test.

You have the right to politely refuse a field sobriety test, and you cannot be penalized for your refusal. However, you should not make any admissions such as "I can't do this," "I'm too drunk to take this test," or "I'm too drunk to finish" when you refuse to perform the test. As long as you do not start the test and then make an admission, your attorney can file a motion to stop the prosecutor from introducing your refusal of field sobriety testing as evidence of impairment.

Your lawyer can also defend you on the grounds that there was no reasonable suspicion to stop you in the first place or that proper procedures were not followed during chemical testing or lab analysis of the chemical test. For example, a Breathalyzer test must be properly calculated for its results to be admissible.

You should not assume that being charged with drinking and driving after a field sobriety test or chemical test means that you should plead guilty. There are ways to challenge the results of these tests in court. If you are in this situation, you can consult Boston OUI attorney Patrick J. Murphy for guidance and representation. He may be able to help you challenge the results and fight to have your charges dropped or reduced. Contact drunk driving attorney Patrick J. Murphy for a free and confidential legal consultation through our online form or by calling (617) 367-0450.