Interviewer: What misconceptions do clients have when they come and meet with you? Is there anything that you have to tell them right off the bat that they think is going to go a certain way that you have to dispel in regards to the field sobriety tests?
Paul Tafelski: The first common misperception that a lot of people have is that they did a really great job on the field sobriety test. I’ve had many cases where people come in and say, “Oh, yeah, I was perfect on the field sobriety test,” and then we get the videotapes and watch and they look terrible. That’s often a problem.
In reality, it’s more helpful to the defendant that there are videotapes of these things because the police will always say you did poorly, and at least in those situations where the client did perform well, we have the videotape to demonstrate that the police officer has been exaggerating the symptoms.
If a Client Performs Well on a Field Sobriety Test, It can Contribute Towards Formulating an Effective Defense
In those situations, if we can develop a defense whereby we can effectively challenge the breath test results and then you combine that with videotape where the client is performing well on the field sobriety test, then we have the makings for a winner of a case.
It definitely helps when the client looks good on tape. It’s just that most people end up not looking so good on tape and that’s why they would’ve been better off in the first place not to have even taken the test.
Common Tests that are Often Administered Incorrectly by Police Officers
Interviewer: What are some of the common tests that police officers usually perform incorrectly or administer incorrectly?
Paul Tafelski: The most common one that’s administered incorrectly is the horizontal gaze nystagmus test. That one is most of the time done incorrectly according to the rules and regulations that the police are supposed to follow.
Now with most of the other tests, it becomes a little more tricky to prove they’re being incorrectly done where the real tricks are in the way they give their directions and how fast they may explain something or how fast they may show it and then tell the person just to go ahead when, you have to remember that the defendant or the driver has never dealt with situation before, especially under like a sun and extreme and stressful circumstance when somebody gives them one quick set of instructions and then tells them to do a test that sounds relatively simple but in reality has seven or eight parts to it that they’re being graded on.
That’s the part that oftentimes needs to be explained to a jury or pointed out to a jury because they otherwise are going to rely on the police report, which just makes them sound drunk.
The Horizontal Gaze Nystagmus Test is the Most Common Test Failed by People
Interviewer: What’s the test that people fail the most amount of times? What’s the most common test that people fail?
Paul Tafelski: For example, like I told you before, the horizontal gaze nystagmus test is one where we can never tell for sure whether or not what the officer said was true. I’ve never seen one police report where they administered that test that they didn’t say that the person failed. That one, I’d say that’s at 100% failure rate. Whether or not that’s the truth, I don’t know.
Aside from that, the one-legged stand and the walk-and-turn tests are tests where the police will often say that the client failed but sometimes the tape doesn’t bear it out. They may have missed on one tiny piece of that test but done the rest of the test correctly, and so that becomes a point of argument as to whether that’s a pass or a fail. The police will always call it a fail and we will call it a pass.