Michigan field sobriety tests can be either extremely damaging to your case or slightly helpful. In a perfect world, a defendant would not have submitted to any field sobriety test, because the police officer will always be able to find a few things that were done incorrectly, which are inferred means the defendant was intoxicated. There is no scientific evidence that these tests indicate someone is intoxicated or under the influence; many sober people cannot perform these same tests.
Performing a test too fast, slow or minor variance from the instructions is considered a failure of the test. These tests were designed to provide evidence of intoxication, not assist in a defendant's drunk driving defense. The prosecution will present a "totality of the circumstances" argument that any mistake performing these tests equate to intoxication. It's important for your attorney to focus on the favorable test results, and discredit what the prosecution would have you believe indicates intoxication. Here are a few of the most common field sobriety tests:
Alphabet reciting test
The arresting officer will tell the defendant to recite the alphabet, sometimes starting and ending at different letters. If the defendant asks for clarification during the test, pauses or hesitates, the officer may mark the defendant as failing this test. The arresting officer should be cross-examined and admit alternative explanations for the defendant's supposed "failure" on the test. The officer and prosecution would have you believe a "failure" on this test equates to intoxication; this is not always true, and the arresting officer will leave open the possibility that performance was due to nerves, being unfamiliar with the process, and a host of other explanations. If the officer fails to acknowledge alternative explanations, your attorney can argue to the jury that the officer was so adamant about your guilt and building the case against you, that they would not even acknowledge other reasonable explanations.
Touching your nose with your finger test
The arresting officer will ask the defendant to extend their arms and close their eyes; the defendant is then instructed to touch the tip of their nose. This technique has no scientific basis for testing for intoxication. There are a handful of alternative explanations for not performing well on this test; your attorney will explore these possibilities, and the officer should admit that the alternative explanations are plausible. If the officer will not acknowledge these alternative explanations, your attorney will be able to argue to the jury that the officer was so adamant about your guilt and building the case against you, that they would not even acknowledge other reasonable explanations.
Walk and turn test
This test requires a defendant to walk heel to toe and turn. The officer is required to find a clean surface with a visible line; the surface must be level. It is VERY easy to fail this test; most sober people cannot 100 percent comply with its requirements. If you lose balance, start early, end early, fail to touch heel to toe on each step, usage arms for balance, stepping off the visible line or performing incorrect number of steps, you fail this test. This is not a reliable test for intoxication, and your attorney will explore the results of this test on cross-examination.
The arresting officer will instruct the defendant to stand with a leg raised about six inches off the ground for about 30 seconds. If the defendant sways, hops or uses his/her arms for balance, it's a failure. This is a ridiculous test for most people, and almost impossible for person with physical conditions or defendants of certain age groups. Your attorney will explore the results of this test, and go after the assumption that the results of this test are any bit reliable.
Horizontal Gaze Nystagmus
This is a test that looks for involuntary jerking of the eye, which is alleged to be caused by the presence of alcohol in the defendant's system. This test is highly subjective, which the officers have very little training. An officer is expected to conduct an eye examination on the side of the road, and determine whether the subject has consumed alcohol based upon jerking of an eye. You don't need to be a doctor to know that jerking of an eye can be caused by various reasons other than alcohol consumption.
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