On Becoming Certified to Administer the Standardized Field Sobriety Test

by Jamison Koehler on April 9, 2010
U.S. Capitol building

There is nothing more gratifying for a criminal defense lawyer than the moment on cross-examination when the prosecution’s key witness begins to sweat.  The witness gets that panicked or confused look in the eye and keeps glancing over at the prosecutor as if for help.  Uh oh, the look says.  This is not going as planned.  Defense counsel knows a little bit more about this than I had expected.

It is particularly gratifying when the witness is a cocky or swaggering police officer.  This may sound disrespectful or mean, but if you have ever been bullied by such a police officer during a traffic stop or arrest, you will know what it is I am talking about. You will forgive me my glee at the witness’ discomfort.

My favorite instance was the officer who himself kept objecting to my questions.  Or another officer who told me I was asking him the wrong questions.  Apparently, they weren’t the questions he was expecting.

I am currently in Houston with the hope of honing my ability to make witnesses uncomfortable during cross-examination in a DWI, DUI, or OWI case. Specifically, I am here to become certified in administering the standardized field sobriety test, which, as I have discussed elsewhere, is the battery of tests approved by the National Highway and Traffic Safety Administration for detecting drivers impaired by drugs or alcohol. It includes the one-leg stand, the walk-and-turn, and the infamous horizontal gaze nystagmus test. At the very least, I am hoping to level the playing field.

I will be posting more about this training over the next couple of days.

5 Comments on “On Becoming Certified to Administer the Standardized Field Sobriety Test

  1. I am so excited that you are doing this. You will have to give unofficial trainings when you get back. For serious.

  2. Another tool in the toolbox. You will absolutely love it and the cops won’t be able to BS you. I went through it and on my very next case, it was so obvious that the cop had screwed up the HGN test pretty bad. The prosecutor had no idea.

  3. Am I right in thinking that drivers can and should refuse to take “FSTs” anyway? (As opposed to blood, breath, or urine tests)

  4. You can in fact refuse to take the field sobriety test, at least in every jurisdiction with which I am familiar. Whether or not you SHOULD refuse is another matter. It depends on your particular situation and the jurisdiction in which you find yourself. (I know, I know. A very disappointing and lawyerly response.)

    Based on my experience, I think it is a fairly good bet that if you take the test, you will fail it, at least portions of it. The tests are difficult to do for even a sober person, and a police officer eager to justify the time he or she has already spent with you should always be able to find something wrong with your performance.

    At the same time, a refusal to take the test could be interpreted as an admission of guilt. And if you are pretty confident that you can do well on the test AND the test is videotaped as in many jurisdictions, you might be better off performing the test. In this case, you could be giving your lawyer some good material to work with at trial.

    Anyway, those are just a few of the things to consider.

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