Many arrested for OUI assume that a police officer must give field sobriety tests prior to an arrest. Under Massachusetts OUI Law, there is no requirement as to which field sobriety tests and officer must give or whether an officer give any tests at all. Most police officers will give the standard field sobriety tests, which consist of the HGN test, one leg stand and walk and turn. Other common tests include an alphabet test, number counting backwards and nose touching test called the finger to nose test.
In this Blog, I would like to discuss the common practice of a few State Troopers in the area of Wareham, Falmouth and New Bedford who commonly omit field tests or only give one admissible field sobriety test. In Massachusetts, the HGN tests is generally inadmissible as evidence in Massachusetts Courts under the Sands case. Every police officer is trained to administer field sobriety tests according to the methods of the National Highway Traffic Safety Administration.
Accordingly, in a stop for a routine traffic violation, an officer should at least give two field sobriety tests prior to forming an opinion to be fair to the motorist. However, I have increasingly seen officers administer the HGN test, a one leg stand and quickly request the motorist submit to the portable breath test and make an arrest.
If the motorist refuses a breath test at the station, the Commonwealth will be left with one one admissible field sobriety test at trial as the PBT is not considered a scientific test and does not come into evidence at court. It is used to help the officer decide whether there is probable cause to make an arrest, but does not come into evidence before a judge or jury at trial.
If the motorist takes a breathy test, the case is still winnable because the results may be excluded by a motion or challenged by other defenses. If you are arrest in the area of 195 in Massachusetts, when you read your police report look to see whether the officer gave you a full range of field sobriety tests, if it were just an HGN, portable breath test and one other exercise, you may have been arrested based on a State Trooper making an incomplete investigation and trying to make a quick decision to arrest for drunk driving.