Field Sobriety Tests, or FST's, are exercises that test a subject's balance, coordination, recollection, and ability to follow instructions. FST's may be refused by a driver prior to performance. FST's are not subject to Miranda warnings and safeguards prior to their administration. Observation of FST performance provides police with insight into a driver's condition and ability to safely operate a motor vehicle. FST's are qualitative, gauging the effect of drug or alcohol ingestion, as opposed to quantitative, which suggest what and how much of it was ingested. FST's only present an opportunity to observe the effect that an intoxicant (alcohol, illegal drugs, prescriptive medicines, or OTC's) may have had on a subject. Therefore, it is imperative that an officer conduct FST's properly. They must be both explained and demonstrated by the officer prior to utilization on the subject, so that there can be no doubt that they were clearly understood. Where this is not done, poor or incomplete performance may be attributable to misunderstanding, rather than inebriation. A poor or incomplete test erodes the officer's once steady foundation for an arrest for a DUI offense.
Approved FST's are a set of five (5) standardized tests that the National Highway Traffic Safety Administration (NHTSA) has approved. These tests are (1) the Romberg Balance test, (2) the Walk and Turn test, (3) the One Leg Stand test, (4) the Finger to Nose test, and (5) the Gaze Nystagmus tests. The first four (4) test balance and divided attention, or the ability to perform multiple tasks at the same time. While balance is not necessarily a factor in driving (bad knees for instance can create problems for many drivers) the lack of balance is an indicator that there may be other problems. Poor divided attention skills relate directly to a driver's exercise of judgment and ability to respond to the numerous stimuli presented during driving.
Nonstandardized Tests are any one of many tests employed by officers around the Commonwealth and the country in the course of their normal DUI/DWI investigations. They are not approved by NHTSA for one reason or another. These may include the alphabet test, numbers test, and finger counting dexterity tests. Their use is probative to the extent that they elicit conduct that can be evaluated. For example, slurred speech, incoherent speech, an inability to focus, or a strong alcoholic odor. The difficulty with these tests and why they are not approved by NHTSA is because most require a level of education or linguistic ability that the driver lacks. All of these tests have been previously evaluated by Shaffer & Engle Law Offices, LLC to determine their strengths and weaknesses which make them subject to question by the courts.
Portable Breath Tests (PBT's) are not admissible in court. The results of a portable breath test may not be offered into evidence at a summary proceeding on a charge of driving under the influence of alcohol or a controlled substance. 75 Pa.C.S. §3731. While the PBT is an approved device, it is not one that is calibrated and approved for accuracy. A PBT serves as an aid to police in ascertaining probable cause for arrest of one suspected of DUI. Thus, PBT testimony may be used by police for the sole purpose of establishing the presence of alcohol in a suspect's system.
A Special Note about the application of the Miranda Rights involving DUI charges
"Don't the police have to read me my rights before they ask me to do field sobriety tests or take a portable breathalyzer test?" This is one of the most commonly asked questions by those clients charged with a DUI offense. The "Miranda rights" is a common law rule set forth by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 346, 86 S.Ct. 1602, 16 L.Ed.2d 694, in which the Supreme Court held that absent a suspect's intelligent waiver of his pertinent constitutional rights, the suspect, before any "custodial interrogation," must be warned in clear and unequivocal terms that (1) they have a right to remain silent; (2) that any statements made may be used against them; (3) they have the right to consult with an attorney prior to or during such interrogation; and (4) if they cannot afford an attorney that one will be appointed to represent them. "Custody" is defined as any time one has been deprived of his freedom of action in any significant way. "Interrogation" is defined as questioning initiated by a law enforcement officer for the purposes of eliciting a response. The Courts of Pennsylvania and other states have repeatedly held that an ordinary traffic stop is not "custody." U.S. v. Butler, 249 F.3d 1094 (9th Cir. 2001); Com v. Mannion, 725 A.2d 196 (Pa.Super. 1999). Therefore, such rights do not apply to a motorist stopped for routine traffic offenses that are asked to complete a set of field sobriety tests or a PBT.
Timing is critical. Contact us to discuss your legal rights and options with one of the DUI lawyers at Shaffer & Engle Law Offices, LLC.