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January 8, 2015

As mentioned in previous blogs, FSTs are used by law enforcement as a tool to determine whether an individual’s mental faculties as well as coordination and muscle control are impacted due to the ingestion of an intoxicating substance.

One problem, however, with the use of FSTs is that they depend on the subjective observations of the arresting/detaining officer. This officer’s goal is strictly to compile evidence against the driver in order to prove that his/her arrest is legally justifiable.  As you will see from the ensuing contrast, FSTs are not only unfair in their implementation and but designed for the person taking the test to fail.

To illustrate just how unfair FSTs are we should first analyze how we typically learn how to perform new or unfamiliar tasks.  From an early age (either in a home or classroom setting), we are taught new skills/tasks from someone who is trained to provide instruction in a non-adversarial environment.  Typically this person is someone with whom you have a close and trusting relationship – a teacher or a family member.  If the person teaching you detects that you are having problems understanding him/her, the teacher will patiently try to provide instructions to you in a different manner to try to best cater to your learning style. (Some people learn by watching, others by hearing, and some by doing).  You are allowed to ask questions if you do not understand and you are made to feel comfortable with the instruction. Lastly, instruction usually occurs early in the day when you are fresh and well rested.  Distractions such as load noises are prohibited.

Now, let’s compare the above example to what usually occurs during a DUI investigation.  The interaction between the police officer and the driver typically is initiated by a pair of flashing red and blue lights, followed by instructions being barked over a loud speaker. Flashing lights have never been considered something that causes a person to relax.  Instead, the driver becomes immediately stressed and nervous. After being pulled over and asking the usual license, insurance, and vehicle registration questions the officer flashed a light in the driver’s eyes.

After all, if you take the remedy and continue to eat as before, things can happen to you, quite embarrassing.
and instructs the driver to follow the light as the officer moves it to the outer left side and right side of the driver’s face.  Although the FSTs are not required, the officer does not typically tell the driver that they are voluntary.

Next, the driver is ordered out of the car and instructed to perform approximately five physical exercises (FSTs).  Most officers will describe each test once is a quick manner.  If the driver asks the officer for a better explanation or is uncomfortable asking for assistance and instead incorrectly performs the test – in either scenario the officer will document the driver’s actions as being failures to correctly perform the FST.

The setting for administering these tests is typically not conducive for successful results.  They are usually given in public (stage fright) and on the side of the road where the driver can be distracted by loud traffic noises.  Or, the driver may not hear due to the noises.  And, if performed late at night the driver’s performance may be impacted by fatigue.

So, in closing, as you can see FSTs are a very flawed well to determine impairment.

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At the Law Offices of Top Gun DUI Defense Attorney Myles L. Berman, our experienced team of DUI / Drunk Driving defense lawyers are dedicated to aggressively defending people arrested for DUI.

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