Interviewer: Do DUI arrests happen mostly at night?
Fred Dry: Most DUI arrests occur at night. That’s primarily because that’s when people tend to drink. If a police officer encounters signs of intoxication, he’s going to arrest the person regardless of the time of the day or night.
A Defense Lawyer Can Use the Fact that Field Sobriety Tests Were Conducted in the Dark
Interviewer: Are people-performing these exercises in the dark?
Fred Dry: They’re supposed to be done in a reasonably well lit area. For the walk and turn you’re supposed to walk a straight line; sometimes they’ll use a crack in the side walk or on the roadway or a painted line. Of course, it’s easier to be balanced when you can see where you’re going. If the police officer does it in a particularly dark area, the lawyer should bring that up in cross-examination or it should at least be brought up at some point in the hearing because it’s one of many factors that go into making a decision about whether or not the person is intoxicated. If these tests are done in an obviously unfair way, that’s part of the equation that should be brought up by the defense lawyer.
The Field Sobriety Tests Are Being Utilized for the Past Three Decades
Interviewer: How long have police officers utilized the standardized field sobriety tests? How has it been changed over the years and do they continue to make changes to it?
Fred Dry: I have been practicing law since 1975 when I got a special license to practice law from the Illinois Supreme Court as a student lawyer. I’ve been a fully licensed lawyer since 1976. The field sobriety tests have been around since before then. There were other types of field sobriety tests beside what they use now. But the ones that are used now are the ones that have developed the most. They are considered to be the most reliable in terms of predicting intoxication from the performance of the field sobriety tests. The police previously had people do other things like recite the alphabet, sometimes backwards, count backwards from 100; things of that nature. But those things are not frequently seen anymore. They used to have people picking up coins, they don’t really do that anymore. But these tests have been around the whole time. It’s just that the Walk and Turn (WAT), One Leg Stand (OLS) and Horizontal Gaze Nystagmus (HGN) are the ones that have proven to be the best and these are the ones done now.
It is Possible for a Motorist to Pass the Standardized Field Sobriety Tests
Interviewer: Are they actually passable tests or are they more like these exercises.
Fred Dry: They are passable tests but the first and most important thing in any test is to see if a test is administered in a defective manner. If the test instructions are not given in understandable terms and clearly describing what is being expected, then the results are not going to be reliable in terms of determining the person’s level of intoxication from the performance of the test. When an officer tells you to place your hands at your sides to do the test, he is also supposed to tell you to keep them there and do not raise them. Often times they will not say don’t raise your hands and then if you do, they say this is a clue that you’re intoxicated because you raised your hands even though you weren’t told not to.
Sometimes the Tests are Conducted in a Defective Manner By the Police
Failing to give full, complete and correct instructions about hand placement, as described above, is one way that a test can be done in a defective manner because after all, you can raise your hands and still have your hands to your sides. So if the police officer gives you instructions to place your hands at your sides, its much different than place your hands at your side and don’t raise them during the test. This is just one example of how instructions can be defective and the officer then criticizes the subject for raising hands, which he has not told the person not to do. If the police officer is really looking to make it a fair and objective determination of whether a person has merely been drinking or if they have had too much to drink he needs to test fairly.
If a Police Officer Fails to Provide Proper Instructions then the Results of the Field Sobriety Tests Cannot be Deemed Accurate
They need to treat these like they’re important and they need to do them in the way that they’ve been taught to do them. Like anything else in life, if you have to put something together and you don’t follow the instructions, it may or may not get assembled correctly. Field sobriety tests are the same way. If you don’t give the proper instructions then you’re not going to have a chance to get the results demonstrating accurately what you’re looking for.