What Are the Strategies for Dealing With Field Sobriety Tests in Illinois?
Although field sobriety testing in Illinois is supposed to help an officer make a determination, in reality, most officers make a decision to arrest within the first few seconds of talking to you and the field tests are really about gathering evidence.
What are field sobriety tests?
Field sobriety tests (or FSTs) are investigative tools supposedly designed to help a police officer make a preliminary determination whether a driver is under the influence of illicit substances.
Designed to fail
Although field sobriety testing is supposed to help an officer make a determination, in reality, most officers make a decision to arrest within the first few seconds of talking to you and the field tests are really about gathering evidence to make a stronger prosecution case. From the perspective of a defense attorney, FSTs are designed for you to fail. If you make only a few minor mistakes, the officer can testify that he or she observed signs of impairment. It is rare that an Illinois defendant will get out of a DUI arrest by agreeing to perform field sobriety tests.
Don’t do the FSTs?
Many attorneys advise, and I agree, that it is often in a defendant’s best interest not to take FSTs. In Illinois, there is no penalty for refusing field tests. It’s true that your refusal to perform field sobriety tests will certainly result in your arrest and can be used by the prosecutor as evidence of your guilt. But consider the alternative? If you do try to perform the tests and fail any of them, you will likely be arrested anyway, and you will have provided the prosecutor with the evidence that he or she needs to convict you at trial.
If you do the tests …
Let’s say that you choose to perform the tests. What strategies should you utilize?
- You’re always ON. First, try to determine whether the tests are being video-recorded. Feel free to ask the officer if you are being recorded. If you are being recorded, it is especially important to remember that every moment is being captured, whether the officer is watching you or not. Think of how your behavior will look to a judge who will be watching this months later in a somber courtroom. You will not want to be seen cracking jokes or being rude to the officer. Also, you do not want to say anything that will be used against you in court, such as “I only had six beers,” “I can’t do this even when I am sober,” “I don’t care, I have a great lawyer who beat my last case,” or “my cousin is a sergeant and I will get you fired.”
- Explain impediments. If you are being recorded, it is important to make a record of anything that is preventing you from acing the field tests. So if you have a bad back, or it is windy, mention it out loud, so it can be heard on the video. Point out things that might not be obvious on a video, such as the temperature, if there are people watching across the street who are making you nervous, or if the officer has already called for a tow truck before you even began the tests.
- Horizontal Gaze Nystagmus test (HGN). The officer will be checking the movement of your eyes to see if they can smoothly follow his finger or a pen. In Illinois, this test is only admissible to prove consumption of alcohol or drugs, not impairment, so the results are not crucial. Make sure to tell the officer if you have any vision problems and attempt to keep your head still and follow all the instructions.
- The Walk and Turn test. You will be instructed to walk a straight line, heel to toe, for nine steps, turn, and then walk back for another nine steps, with your hands at your sides. Make sure to inform the officer of anything preventing you from performing this test, such as inappropriate footware (i.e., high heels or flip flops), if the ground is not flat and cleared of debris, or any health issues that you have such as back or leg problems or vertigo.
- The One Leg Stand test. You will be instructed to stand on one leg and count for thirty seconds. Again, mention anything that will prevent you from completing this test. You can pick which leg to stand on, so choose wisely. If you do put your foot down, pick it back up and continue the test until the officer tells you to stop.
- The Portable or Preliminary Breath Test (“PBT”). The officer will probably tell you that this test is not admissible in court, and is only to help him decide whether or not to arrest you. This is only partially true. The results of a PBT cannot be used against you by the prosecutor to make the case against you. However, it can be used at trial as impeachment if you take the witness stand, and it can be used against you in a summary suspension hearing, Motion to Suppress or any other pre-trial motion where there is an issue about whether the officer had sufficient legal justification to arrest you for DUI.
- Don’t resist. If you are arrested, be polite and cooperative. Resisting arrest is a serious offense and you do not want to make your situation worse, let alone get injured or tased.