What happens when you attempt to take field sobriety tests and realize you cannot perform them and are charged with OUI in Massachusetts?

Often a defendant may say: “I can’t do this anymore,” and “I am too drunk to finish,” are some of the many comments made by defendants as they perform field sobriety tests after getting stopped by a police officer who suspects they are operating under the influence.

Statements like these, made during the field sobriety tests, can be used against you as evidence in a court room. In the case Commonwealth vs. Brown, decided June 20th 2013, the Court ruled that statements made during field sobriety tests are not considered compulsory or testimonial statements and are not protected by Article 12.

The facts of the case are as follows, the defendant, Brown, was driving at 1:30 AM on the wrong side of the street and was observed by Wakefield police officer. The officer then pursued the defendant and eventually pulled him over. At that time, Brown got out of his car and had declared he only had two beers, he was ordered back into his vehicle and a second police officer had arrived.

The officers had the defendant perform two field sobriety tests: nine step walk and turn test, and the one leg stand test. The defendant did not complete the nine step walk and turn test and was then moved onto the one leg stand test. Officer Tobyne demonstrated the one leg stand test to Mr. Brown. Mr. Brown then attempted to perform the test and his foot came down immediately. On his second attempt the defendant lost his balance and stated, ” I can’t do this.”

Article 12 of the Declaration of Rights prohibits the use of evidence, in a criminal proceeding, that falls within one of these two categories:

1) governmental compulsion
2) testimonial

The court describes governmental compulsion as something that puts a defendant in a “catch-22” like situation where they have to choose between two things that with either choice would create evidence against the defendant, whatever choice the defendant chooses is self incriminating. An exampled of this is the refusal to take the field sobriety tests at all, if this was evidence allowed in court the defendant had no opportunity to make a choice that was not damaging to his case. He could either choose to take the test and create real evidence against him, or refuse to take the test and infer that he is guilty and supposedly showing that he himself feels he is “too drunk” to perform the tests correctly.

The court determined that statements made during the performance of a consented to field sobriety test is not that of compulsion, because compulsion requires that either choice would be self incriminating against the defendant, the state did not compel Mr. Brown to make the statement, “I can’t do this,” therefore it is not considered compulsive.

The court goes on to explain testimonial statements that are protected by Article 12. Tests of physical coordination such as the walking test or holding one leg up for a number of seconds are not considered testimonial because they do not reveal a person’s knowledge or thoughts concerning some facts. Sobriety Tests such as reciting the alphabet backwards, and counting backwards, do not violate article 12 because even if they were considered testimonial responses they were not the product of governmental compulsion.

The courts have previously held that once a subject consents to take a test, the defendants physical actions in performing the test are not testimonial and may be used at trial. The court differentiated between a defendant’s refusal to take a test and the voluntary statements made by a subject while performing a test. The difference is that the statements made during the performance of a test are not governmentally compulsive statements, such as that of a refusal to take a test. A mere statement of “I can’t do this” or “I give up” does not constitute a compulsion claim, and therefore can be submitted into evidence. If the defendant had attempted some tests and then had refused to continue to take the tests, then that would be considered inadmissible and compelled testimony, but in this case the defendant just stating that he “can’t do this” was not a result of governmental compulsion and is therefore deemed admissible as evidence.

While the Commonwealth may be able to use evidence of a partial performance on a field sobriety test, in most cases the defendant is not told asked about medical conditions prior to understanding the instructions on the test.  Once the person understands what the officer is requesting, the motorist is in a better position to say whether he or she can perform field sobriety tests.  At trial, it can be argued that the defendant wanted to perform, tried and realized they could not perform the test and did not realize that the officer would draw a negative inference from giving it a shot and then stopping the test.