Interviewer: If someone were to have eye problems or an inner ear issue, could that also be a factor that someone could argue and say, “Hey, it’s very difficult for me to balance because of my inner ear problem or my eye issues?”
Paul Tafelski: Absolutely. There are really endless sort of medical conditions that affect people’s balance and affect the way people act during stress. A lot of people who are not born in the United States speak with an accent and the police oftentimes will misconstrue that as slurred speech, even though it’s just an accent. There are a lot of physical conditions that can impact whether or not you get arrested for DUI.
The Police Often Make Field Sobriety Tests Sound Simple but there are Many Factors that Contribute to the Complexity of FSTs
Interviewer: Whatif you don’t understand the officer?
Paul Tafelski: Yeah, and that’s another thing, just somebody who is a foreigner, but somebody who might have a learning disability or just might not hear things that quickly the first time around, and again, you mix in stress to that situation, and there have been lots of studies that show that people just don’t handle those situations great, and so as a result, now you’ve heard the directions wrong, now you’ve performed the tests wrong, now they conclude you’re drunk, and that really may or may not have been the cause of it.
There are a lot of things going on that people aren’t aware of. The police want to make it all sound so simple and seem so simple, but in reality, there are a lot of moving parts going on with someone who’s pulled over.
Police Officers Might Try to Coerce an Incriminating Statement After Administering the Preliminary Breath Test
Interviewer: Do police officers also use that as an opportunity to ask someone questions and try to see if they can get an admission of guilt while they’re performing?
Paul Tafelski: Usually, I don’t see it too much around here where they’re trying to get admissions of guilt while performing the tests. They usually will do that once they administer the preliminary breath test. If the results come back at or over the limit, then they’ll often confront them a little bit more about how much they had to drink, try to get them to admit that they drank more or trying to get them to admit that they shouldn’t be driving, that kind of thing, but usually while they’re doing the tests, they stick to business and administer those tests.
Police Officers Often Assume Consent to Field Sobriety Testing When they Pull Over a Driver
Interviewer: If I was in a situation where I was hauling equipment from one city to another and it was late at night. I don’t believe there was a traffic infraction, but the police officer did start beginning to shine a light in my eyes without asking. Can they do that? Have they done that? Is that part of what they do to get someone to agree to something?
Paul Tafelski: That’s a bit aggressive. I haven’t seen most of them do that, but I have seen them sort of assume that you’re cooperative and willing to do what they want and just kind of tell people, “Okay, get out. We’re going to do a few tests,” and without sort of asking if you’ll do it without sort of being more polite about it. They’re just basically assuming you’ll do it, and a lot of people will just go along with that. In a way, it’s slightly coercive.
I’ve seen them do that, but I can’t think off the top of my head of a time when I saw them just immediately start performing a horizontal gaze nystagmus test without even telling people anything, because like I said, that test, for it to be accurate and for it to be valid, really needs to be done properly, and that’s not a proper way to do it, to just shine a light on somebody’s eyes. He might have been trying to see if your eyes were red or bloodshot.
In Michigan, the Driver’s License Penalties are Implemented after a DUI Conviction
Interviewer: Are these videos of Field Sobriety Tests considered during the DMV hearing?
Paul Tafelski: They can be, but in Michigan, the driver’s license penalties are administered after a conviction, and so these kind of things on a tape won’t really matter too much after somebody’s convicted. The exception might be is if they ultimately refuse the breathalyzer at the station, which is called the Data Master test. That is considered an implied consent violation, and as a result your license gets automatically suspended for one year.
Now in that case, if you’re arguing that you really did consent, that you did cooperate, you maybe have some evidence on that tape to help show that you were cooperative, or perhaps you’re challenging the validity of the constitutional nature of the arrest, and therefore you might want to use that tape in that kind of hearing.
Occasionally, those tapes will be relevant for a Secretary of State licensing hearing, but not too often.