After the embarrassment of being arrested for a DUI, the panic and anxiety of what will happen next sets in.

What can be done to keep this DUI arrest from making me lose my job? Will this one mistake follow me the rest of my life? What defenses do I have? Can an attorney even do anything?

These and other questions could be going through your head. This article will explain some common defenses if you are facing a DUI in South Carolina.

SC DUI Field Sobriety Tests

Failing a DUI field sobriety test can be bad news, but it doesn’t have to be the end of the story. If you could go back and perform the test better, you would. You were nervous, people were standing around watching you perform these “tests.” Law enforcement asked you to do some things, like stand on one foot and count out loud, that you wouldn’t do on a daily basis. Maybe you did not understand the officer’s instructions on how to perform the test.

Most people are very nervous when they are “getting pulled” by law enforcement for any reason, even a speeding ticket. It is normal for your heart rate to beat faster, to not think clearly, and to fumble through your glove compartment looking for your current registration and proof of insurance. Someone with a gun and badge standing over you, videoing you and barking out orders can be intimidating.

Once you are pulled over, stop at a license point check or a law enforcement officer approaches you, you are asked to “step out of the car.” You are too afraid to ask why. Then you are asked to do some tests “to see if you are ok to drive.” Sounds simple enough. You comply with the officer’s orders. But did you know that these tests are not mandatory? Most people do not realize this and are used to simply doing what they are told by law enforcement. As a general rule, you should always be kind and respectful to law enforcement. However, you are certainly allowed to politely decline to take the Field Sobriety Tests. Yes, you may still end up getting arrested for DUI. But the silver lining is the less evidence you give law enforcement to work with, the more you give your attorney to work with for your defense of a DUI.

However, if you did take the Field Sobriety Tests, you can’t “unring that bell.” All you can do is move forward and explore what defenses you may have to your DUI. Field sobriety tests can be challenged on many levels. In this article we will go over a few defenses to the Field Sobriety Tests in SC.

Common SC DUI Field Sobriety Test Defenses

1. No videotape

Unlike other states, SC has a mandatory videotaping statute. Generally, from the time the blue lights are turned on, the dash camera should be recording from the police car (there are of course, some exceptions such as when there is an accident or a road block). You are entitled to view this video evidence. The video must be working properly. This includes being able to clearly see the person being arrested on video, hear what is being said and the video should continue until your Miranda Rights are read to you. It is very important that the video and audio record the portion of the arrest when you are being read your Miranda Rights.

There are occasions when police video equipment doesn’t perform correctly. For example, the officer moves out of range for his/her microphone to pick up what is being said. Another example would be if there was an issue uploading the video to an electronic filing system or cloud software. The batteries sometimes aren’t charged in the equipment. The videos accidentally get erased. The recording doesn’t begin at the correct time. There are exceptions to the video recording statute that your lawyer can explain to you based on statute and case law.

Even after the Field Sobriety Tests, there is a second portion of your DUI that must be recorded. That portion is when you are in the breathalyzer room. The recording should show the entire 20 minute observation period that you wait to “blow” into the breathalyzer. If you refuse to blow, there should still be a video available that recorded your refusal. Some exceptions apply and your attorney should be able to advise you on this. An example would be if you were involved in a vehicle accident and were taken immediately to the hospital.

2. Standardized tests are unreliable

The standardized field sobriety tests are not 100% accurate. This leaves room for disputing the results. Law enforcement follow a uniform manual called the NHTSA Student Manual. According to the U.S. Department of Transportation “DWI Detection and Standardized Field Sobriety Testing” NHTSA Student Manual (February 2006): VII-3. If a suspect displays four or more clues during the HGN test, he/she is 77% likely to have a BAC of 0.10% or greater. See also VII-6. “Original research shows that if a suspect exhibits two or more of the clues [during the walk-and-turn California DUI FST], or cannot complete the test, the suspect’s BAC is likely to be above 0.10. This criterion has been shown to be accurate 68 percent of the time.” See also same. “The original research shows that, when a suspect produces two or more clues [on the one-leg stand California DUI FST] or is unable to complete the test, it is likely that the BAC is above 0.10. This criterion has been shown to be accurate 65 percent of the time.”

3. Procedural mistakes by the police officer

According to the National Highway Transportation Safety Administration, if any of the elements of the Field Sobriety Tests are changed, the validity of the results of the tests is compromised. It is a common problem that officers don’t follow the exact steps of the particular test being administered. This is almost always unintentional. Law enforcement have so much to remember in administering these tests. They are also focused on other important responsibilities, such as officer safety during a DUI traffic stop, safety checkpoint, or working vehicle collisions. If the law enforcement officer does not administer the Field Sobriety Tests according to the national standards, that may be a defense to your DUI.

For example, assume you are taking the one leg stand field sobriety test. The law enforcement officer fails to tell you that during the instructional phase of this test you must keep your arms by your side. While you are taking the test, you use your arms for balance and your arms are not by your side. The law enforcement officer cannot use that you used your arms for balance as an indicator or clue that you are impaired. You had no way of knowing you were supposed to keep your arms by your side during the one leg stand test because the officer didn’t properly instruct you. This may seem “nit picky” but these errors can add up and may affect the outcome of a DUI case.

4. Improper or Unreasonable testing conditions

The conditions, where, when and how you are taking your field sobriety tests matter. Some conditions can’t be controlled, like the weather, but these conditions can still affect your test results. For example, if it is drizzling rain outside and you are doing your field sobriety test at night. The officer’s dash camera is recording, but the officer’s vehicle is parked in a way that the reflection from the rain on the cruiser’s windshield makes it nearly impossible to see what you are doing on your field sobriety test. The officer could have accidentally left the windshield wipers off on the police cruiser and there is no way to see the video of your field sobriety tests if you are doing them in front of the police cruiser.

Extreme cold or extreme heat could also be factors. The ground surface where you are taking the test could also be a factor. Are you on a wet or icy roadway? Are you taking the test on a smooth, dry surface? Is there a hill? I have even had a case where someone was doing the one leg stand on an ant hill! Of course you are going to lose your balance on a one leg stand test when you realize you are standing on an ant hill.

Other conditions are entirely in the control of the officer, including where the test is conducted, what you are allowed to wear, etc. If the officer puts you in front of the Mellow Mushroom in Summerville, that Mellow Mushroom has strobe lights. Strobe lights in your direct or peripheral vision can affect the “eye” test (HGN test), the one leg stand test, and the walk and turn test.

Has the officer placed you in an area with moving traffic in your direct or peripheral vision? This can create many issues with the test results. How fast are the vehicles moving in traffic? Are they moving so fast they are blowing your hair or clothes? Is it night time and the headlights of the vehicles with bright lights are affecting your eyes?

The location of the test is important. For example, I had a case that involved a metal covering in the roadway that was there to temporarily cover a pothole. Each time a vehicle ran over the metal cover, there was a loud, distracting noise.

Are there ambulances, fire trucks, wreckers or other noisy emergency vehicles going by with flashing lights? I once had a case where a group of motorcycles drove by on the road where my client was taking the field sobriety tests. Not only could I not hear my client’s or the officer’s verbal communications, my client was completely distracted by the passing loud motorcycles. The fact that the client asked the officer to repeat the instructions did not necessarily mean the client was impaired or not paying attention. The client just couldn’t hear the initial instructions for the field sobriety tests.

Obviously, taking a field sobriety test in the pouring rain, sleet or snow is a factor that could affect the results of the field sobriety test. Have you ever tried to keep your head still while following the tip of an ink pen moving side to side around your head while it is pouring rain? It is very difficult to do, and if you fail that test in those conditions, the logical conclusion is not necessarily that you are impaired.

The shoes you are wearing can also affect the test results. It is nearly impossible to perform the walk and turn test, walking heel to toe in flip flops. Did the officer give you the option of taking your shoes off? Steel toe boots, high heels, very new shoes are all factors to consider. Do you have a history of foot, toe, knee or leg injuries? Did the officer ask you about this during your tests?

5. Language Barriers

Not everyone that is taking a field sobriety test speaks the same language as the law enforcement officer. What if the officer does not speak the same language as your native language? There is often some confusion lost in translation. This confusion does not mean the client is impaired necessarily. Was a translator offered? Did you request a translator? If a translator was offered was this a phone app or an actual person? If an actual person who is a translator arrives on the scene, how much time does this delay your field sobriety test? What admissions do you make to the officer during the time you are waiting for the translator to arrive? How can you understand the instructions for the field sobriety test if you don’t understand the language? Many law enforcement agencies are understaffed as it is, and it is no surprise there is also a shortage of bilingual officers. The language barrier does not mean that that client should be convicted of DUI.

Need help with your DUI case?

Over the years I have dealt with many different scenarios that my clients have encountered that can affect the results of Field Sobriety Tests. Sometimes it’s my client’s fault, sometimes it’s the law enforcement officer’s fault, and sometimes it’s the environment where the test is conducted. There are many reasons why my clients’ results end up the way they do.

Hiring an attorney does not prejudice your case in any way. The court does not fault you for hiring an attorney. It is your constitutional right to have an attorney represent you.

Sometimes your DUI court date is within weeks after you receive the ticket. Do you have the time to search for a DUI lawyer? You may feel rushed, but hiring a lawyer may be the difference in a conviction for DUI or not.

A lawyer should know how to obtain all of the evidence against you, evaluate it and give you their professional opinion. A lawyer should also know how to get your court date continued to allow time to obtain and review the evidence with you one on one.

Questions about DUI? Contact Attorney Susan E. Williams.