Should I perfom Roadside Alcohol Tests if I am stopped by police in Colorado?

If you were arrested for DUI in Colorado chances are that the police asked you to submit to "voluntary" Field Sobriety Tests also known as FST's, SFST's or "roadside maneuvers." FST's are the series of tests administered by police officers, usually at the side of the road.

You may believe that FST's are administered to "screen out" drivers who may have consumed alcohol but who are innocent of drunk driving. Many people who call us thought that they could "pass" the FSTs and then be allowed to go on their way. In Colorado police officers rarely give a "passing grade" to suspected drunk drivers no matter how well they perform field sobriety tests. The primary purpose of FSTs is to gather evidence for use during prosecution of the DUI defendant - not to determine whether the driver is actually drunk. The officer will use his "score card" of your field sobriety tests as proof that you were intoxicated at DMV and/or trial.

As soon as the police smell alcohol on your breath they usually have already made up their minds to arrest you. Therefore chances are that you'll receive a failing score on the sobriety tests regardless of your performance. For these reasons and because field sobriety tests are more often than not misused as a tool for obtaining a conviction I recommend that drivers politely decline to perform them.

To justify an arrest in the absence of FST's the police rely on Herman v. Colorado Department of Revenue, 870 P.2d 628, 630 (Colo. App. 1994) and similar case law. The Herman case states that "india of intoxication" alone may provide probable cause for a DUI arrest. Almost all DUI reports will contain claims that the arrested driver exhibited "idicia of intoxication" e.g., watery, red, bloodshot eyes, and slurred speech regardless of whether these "indicia" are present. Coincidentally. This is the same language used in the Herman case.

While there have been many field tests devised over the years to detect intoxication, only three tests have the blessing of the United States Department of Transportation, National Highway Safety Administration (NHTSA). Those three tests, known collectively as Standardized Field Sobriety Test SFST's are the "Walk and Turn" (W&T), the "one leg stand" (OLS) and "Horizontal Gaze Nystagmus" (HGN). The first two tests, the W&T and OLS, are called psychophysical tests or "divided attention" tests. The third test, HGN, is based upon purely upon involuntary movement of the eyes after consumption of "intoxicants." These tests were developed and "validated" for US DOT in the mid-1970's by an obscure organization known as the Southern California Research Institute. Since 1975 NHTSA has conducted "studies" that it claims validate SFT's for detecting ever decreasing alcohol levels.

Think you passed the roadside maneuvers? The W&T offers eleven criteria on which the officer can "flunk" the person being tested. Of those eleven criteria, three result in automatic failure; subjects who in the police officer's opinion exhibit more than one of the other eight criteria also fail. The OLS offers the officer six criteria on which to flunk the subject. Two of the criteria for the OLS result in automatic failure; like the W&T if the police officer thinks the subject exhibits more than one of the other four criteria the subject is considered to be intoxicated. Finally, the HGN offers six criteria that the police officer can score against the subject,three in each eye. If the officer thinks he sees four of the criteria, two in each eye, a trip to jail is likely.

Determination of whether a subject has passed or failed is entirely within the discretion of the person who's job it is to gather evidence of guilt, the police officer. Rarely are FST's video taped so that it is your word against the police officer who, after all, is "just doing his job."

Even though this situation sounds hopeless there are ways to attack FST's. NHTSA has worked hard for almost thirty years to provide its SFST's with an "appearance of validity." To this end NHTSA has published detailed instructions on how the roadside maneuvers are to be administered and how they are to be scored. Over the years I have reviewed literally hundreds of cases involving SFST's. In all but a handful of those cases the officer administering the test failed perform all of the FST's properly. Only in about ten of those cases did the officer know anything about the scientific background of the three SFST's. Careful cross-examination of the officer concerning how he administered the so-called "standardized tests" often shows the jury that the officer performed the test in such a way that the tests are meaningless and indicate only the officer's efforts to unjustly obtain a conviction.

Call Attorney Cliff Hypsher today for a free telephone consultation at 1.877.362.9091. Payment plans available.