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Challenging Field Sobriety Tests in Accident Cases

We frequently raise challenges to the admissibility of field sobriety tests (FSTs) in DUI/DWI cases. For example, relying on the field sobriety validation studies, we prepared a motion to exclude field sobriety tests on relevancy and prejudice grounds for use in accident cases where a defendant has been injured or shaken up.

The FST validation studies do not support using FSTs in cases where a defendant has been injured or badly shaken incident to an accident.

Do I Have to Submit to Field Sobriety Tests?

Under Virginia law, a “field sobriety test is not mandatory and is administered only with the consent of the accused.” Hammond v. Commonwealth, 17 Va. App. 565, 568, 439 S.E.2d 877, 878 (1994); Jones v. Commonwealth, 688 S.E.2d 269, 272, 279 Va. 52 (Va., 2010)(stating “there are numerous innocent reasons why a person may refuse to engage in tests that are not required by law, including that a person may be tired, may lack physical dexterity, may have a limited ability to speak the English language, or simply may be reluctant to submit to subjective assessments by a police)(emphasis added).   That is, a person has the right to refuse the tests.

When it appears a person has been coerced by law enforcement to submit to the tests, we have briefed and challenged the FSTs for being improperly coerced under the Fourth Amendment since, in our view, the administration of field sobriety tests can be characterized as searches for incriminating information.  While all judges do not accept that field sobriety are searches within the Fourth Amendment and should be suppressed if compelled, some judges do accept this legal position.  Below is an excerpt from a successful motion to suppress an improperly compelled field sobriety test, which contributed to the client’s acquittal despite an evidentiary breath test that was above the legal limit:

“The Defendant, in this case, was ordered to submit to the horizontal gaze nystagmus (HGN) test, which is not consent.  See U.S. v. Robertson, 736 F.3d 677, 680 (4th Cir. 2013)(reversing trial court’s denial of motion to suppress search where defendant submitted to officer command to submit to pat down search).

Since the HGN test is a search by law enforcement for incriminating information and the prosecutor has the burden of showing free and voluntary consent to the search, the results of the test must be suppressed because free and voluntary consent cannot be demonstrated on these facts.

Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)(“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”).

Improperly Instructed Tests

Other challenges that we mount to field sobriety tests include whether they were properly instructed–frequently, video from a DUI/DWI stop shows an officer’s FST instructions differ from the standardized format.

It should never be assumed that an officer has properly instructed a DWI suspect on how to perform a field sobriety test.  While there is no appellate authority in Virginia excluding inaccurately instructed field sobriety tests, courts outside Virginia have excluded field sobriety tests not strictly administered in compliance with NHTSA standards.