Lawrence Taylor out in California wrote an article about how Field Sobriety Tests are designed to make you fail. I could not agree more. For example, the other day I was doing a trial down in Salt Lake City on a DUI. During the break, before I was going to begin to cross examine the officer, I looked out in the hall and noticed that the officer was performing and practicing the Nine Step walk and Turn Test. When she took the stand, I asked her:
Q: I noticed you were out there practicing the nine-step walk and turn test.
A: Yes, I was afraid that you were going to ask me to perform the tests for the jury, I was nervous.
Q: Did you allow my client to practice this test?
A: No, if he practices, he might be able to pass.
Q: Do you think he was nervous standing out on the street as people drove by yelling and with an officer standing there waiting to take him to jail?
These tests are designed to make even an innocent person fail. The tests are purely subjective. The officer gives the citizen over thirteen detailed and very specific instructions to follow for the nine-step walk and turn test. You are nervous, adrenalin is pumping through you just from the mere fact you were pulled over, and the officer wants you to walk on a tight rope. Below is a video of a class room setting of how the Walk and Turn Test is conducted. This is by no means how things work in the field. Nothing is taken into consideration except alcohol. If the person stumbles, the person may be tired, wearing thongs, or just plain uncoordinated. If the person cannot remember even one of the thirteen instructions, the officer will consider him drunk. The officer never tells the person the grading criteria. If a person is truly drunk, it should be from obvious and specific clues, not small details that the person raised his arms more than 6 inches from his body or missed heel to toe by 1/2 an inch. Notice in the video at least three clues of impairment that Utah officer’s would note as clues of impairment. Watch for the gentlemen stepping to the side of the line (or off line), notice that his right hand comes away from his side, and notice the sway while he was standing in the instruction stage. That is merely my opinion. The officers can form that exact same opinion from these minor clues. It happens all the time.