Field sobriety testing in DUI cases is likewise a fertile area for the defense. These FST’s are not really tests at all. Tests denote circumstances where information is provided to the subject in advance, where that information can be studied, and then recited in a controlled environment (such as a classroom) where objective criteria is employed to determine whether the subject passes or fails. FST’s in DUI cases have none of these features, as the subjects don’t get the materials in advance, take the tests by the side of the road while an armed, uniformed officer hovers over them, and missing 10% of the material is deemed a failing grade.

However, a skilled DUI defense lawyer will be able to point out those areas in the FST performance demonstrated a lack of mental impairment, and in this regard is inconsistent with impairment due to alcohol. This is a critical point, which must be reemphasized in DUI defense: when dealing with impairment from alcohol, mental impairment always precedes physical impairment. All of the experts, both prosecution and defense, agree on this vital issue. Therefore, where there is some physical impairment demonstrated, but no mental impairment, the impairment must be coming from a source other than alcohol (such as nervousness, fatigue, or injury).

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