Interviewer: If someone takes the field sobriety test, they are going to receive additional tests after that like the breathalyzer. Is that correct?
Paul Tafelski: Almost always. Almost every single time, the person will do the field sobriety test, and then the officer will ask them to take the preliminary breath test on the side of the road. If that preliminary breath test is at or over the limit, they will immediately arrest them.
If it’s under the limit but they’ve performed very poorly on their field sobriety test, they may still arrest them because, technically, to be arrested for Operating While Visibly Impaired in Michigan, you don’t have to be at any particular limit. You just have to be impaired by alcohol in your ability to drive. Even if you’re under the limit, if you do really badly on your field sobriety test, you might still get arrested.
In Michigan Video Cameras are Almost Always Going to Be Present during Administration of Field Sobriety Tests
Interviewer: Are there always cameras that are going to be present?
Paul Tafelski: Almost always. We still do run into departments where maybe the camera wasn’t working or there was a problem with it, but probably 90% of the time we will end up with videotape of the stop, the conversation between the driver and the field sobriety test, the administration of the preliminary breath test, and then the arrest, and the transportation to the station as well.
There have been instances during the transportation where the person was talking too much in the car and you could hear their speech was slurred or they came off as being intoxicated. The police can use that evidence in trial against you as well if you appear to be intoxicated or impaired while you’re in their custody.
If a Breath Test is Disputed in a DUI Case, then the Field Sobriety Tests are of Crucial Importance in determining the Outcome
Interviewer: Paul, have you worked any cases where a field sobriety test was one of the more crucial aspects of that case?
Paul Tafelski: I have had a number of trials where once the breath test was called into question. In other words, when the reliability of that breath test was in question, the field sobriety test became extremely important to giving the jury confidence to find the defendant not guilty.
What I mean by that is, in those cases, we raised a good enough issue with the breath test results so that they weren’t sure if they were reliable and then seeing that the defendant did perform well on their field sobriety tests was enough to make them feel comfortable to reach a decision to find them not guilty.
Although Good Performance in the FSTs May Help Defend a DUI, It is Still Advisable to Refuse FSTs
Many times, the field sobriety tests are important. In fact, they’re always important, because if you do terrible on the field sobriety test, you really don’t want to go to trial. If you do great on them, it gives you a lot more confidence to go to trial. They’re definitely important, but again, the reason why I say you’re probably better off not doing them at all is because in the majority of cases, people don’t help themselves by their performance.
If you knew for sure you were going to help yourself with your performance on the field sobriety test, then you’d want to do them, but most people don’t perform that well on them and I’m not sure that they would even if they were so sober. That’s why I say, as a general rule, even though it doesn’t apply in every circumstance, it’s better not to do the field sobriety test, period.
It is best to Politely Decline Field Sobriety Tests without upsetting
the Police Officer
Interviewer: What would be the best way for someone to decline to take the tests without upsetting the police officer?
Paul Tafelski: Usually, my advice is that you say, “Officer, I’m sorry, I’m not trying to give you a hard time, but my friend is a lawyer and he told me that if I’m ever asked to do those tests that I should politely decline, so that’s what I’m doing.”