Interviewer: How can the field sobriety test be used against someone by the prosecution?
Kevin Roach: The officer can testify on different accounts; for instance, he could testify that he administered the HGN test, and that he saw that your eyes were making that involuntary jerking movement. He could testify that he'd been trained how to correctly administer the test. He could also use other tests, like the one-leg-stand, and testify that you didn't follow the instructions or you wobbled. It just builds their case.
They are going to say that you failed the test, and it’s just something more that they have against you. If they didn't have the field sobriety test, basically all they would be able to go by is the officer's personal observations.
Interviewer: It's like a little list that they are checking off because they have the field sobriety, breath analyzer, whatever statement is made, and what have you?
Kevin Roach: The officer’s are just doing their job. They are trying to make it as easy as possible for the prosecuting attorney. A lot of the seasoned officers have been challenged on these cases before, and they know that it is a lot easier for them to convict somebody if they had a field sobriety test. They plead in and they have the blood or breathe evidence. They could also have admissions. They could also have alcohol – maybe they saw some alcohol in the car. The more they have, the easier it is for them, and the worse it is for you.
Interviewer: When they tell them what the test consists of, I've heard that one of the things that people say if they haven’t been drinking at all or that much, is, "I can't even do that test sober." They will use that, and while the sentiment is there, it gets translated to something where the person admits that they're not sober. Have you seen anything like that or statements like that getting misconstrued?
Kevin Roach: Yes, definitely. That's twisted around on you for sure. You need to watch what you say. Sometimes, officers are pretty tricky about their questions, and just act like it's a casual conversation, but they're really looking for an admission as to whether you've been drinking or not.
The Role of Miranda Rights
Interviewer: Are people given the field sobriety test before or after the Miranda warnings?
Kevin Roach: Before the Miranda warning. They recite your Miranda Rights to you when they're taking you into the station. Typically, it's after the field sobriety test. This is after they have determined your intoxication and plan to write you a citation for a DWI.
Interviewer: Do you think police officers will use this during the time of the field sobriety as an opportunity to start asking them questions, and while people are distracted they’ll start saying things that may incriminate them?
Kevin Roach: Sure, during the initial interrogation, typically when they have just pulled you over, they are allowed to ask you questions. At this point, they do not have to read your Miranda Rights. They almost routinely ask people whether they've been drinking and how much. People almost routinely always answer, "I've had a couple," or, "I've had a few," or a few people will say, "No, I haven't been drinking." Majority of individuals pulled over will be honest and they will say they had a couple.
Most of the individuals that I see aren't highly intoxicated. They've only had a couple, and don't think they are breaking the law, but it doesn't take much more than that. If you go out with friends to dinner or to a Cardinals game, and have a couple of beers, that's pretty much all it takes to blow over the legal limit, which here in Missouri is 0.08.
Kevin J. roach is a St. Louis DWI defense attorney who has defended thousands of DWI and DUI cases in the St. Louis Metro area. Call us today at (636) 519-0085 or (866) 519-0085 for your Free Consultation!