How to Challenge Field Sobriety Test Failures in Kansas

One way for law enforcement to assess whether you are subject to DUI charges in Kansas is through field sobriety tests (FSTs).

These tests, though often contributing greatly to the prosecution’s case, are conducted at the roadside, and the results are based heavily on the interpretation of the police officer conducting them.

An experienced Topeka DUI lawyer will often be able to call the results into question and cast doubt on their validity. Here’s what you need to know about challenging field sobriety test failures in Kansas.

Most proactive DUI stops in Kansas involve a request for field sobriety tests.

Police officers must have “probable cause” to arrest a person and will attempt to gather the evidence required to establish driver impairment from the tests before the DUI arrest is made.

FSTs include a variety of tests to check coordination and balance. The most common ones include:

• The horizontal gaze nystagmus test.
• The walk-and-turn test.
• The one-leg stand test.

For the tests to be valid, they must be performed by trained officials who clearly communicate instructions to the driver.

The problem for law enforcement and, later, the prosecution, is that many factors other than illegal drug or alcohol consumption can impact the test results.

Some of the many factors that can cause a failed DUI field sobriety test, besides being under the influence of alcohol, include:

• Physical injuries.
• Lack of overall physical condition.
• Medical conditions that affect balance or coordination.
• The use of medication.
• Wearing the wrong shoes.
• Nervousness from stress or pressure.
• Bad weather, especially in winter.
• Poor roadside lighting.
• Uneven road conditions.
• Tiredness/fatigue.
• Officer errors.

These factors and other potential irregularities can often be revealed during an in-depth investigation and raised in your defense by an experienced DUI lawyer.

DUI lawyers often employ legal strategies to question FST failures. During the initial investigation, field sobriety test results may be a prominent focus for your lawyer, who will likely ask the following questions:

• How were the tests administered?
• Was the officer qualified and trained correctly?
• Did the test follow the correct procedural requirements?
• What were the road conditions, weather, lighting, etc., at the time of the tests?
• Do the officer’s observations at the scene match the written report?
• Does the officer’s description of your performance match the body camera or dashboard footage?
• Were there any eye-witness accounts of the tests?
• Was there video evidence of the tests being administered?

If the case goes to trial and your DUI lawyer can cross-examine the officer, who is usually the only prosecution witness, inconsistencies or oversights by the officer may also be uncovered.

Successfully arguing that the FSTs were unreliable can trigger a “domino effect” for the prosecution:

• Suppression of evidence: If the FSTs are thrown out, the “probable cause” for the arrest might vanish (in the absence of other observational evidence from the police officer).
• Inadmissible breath tests: If the arrest itself is ruled illegal because there was no probable cause, any subsequent evidence, such as the formal breathalyzer result at the station, may be suppressed (excluded).
• Dismissal or reduction: Without the test results or the breathalyzer, the prosecution’s case often becomes too weak to proceed, frequently leading to a dismissal or a plea to a lesser charge like reckless driving.

Additionally, your lawyer may file motions to suppress field test evidence if your rights were violated during the stop, causing further serious problems for the prosecution’s case.

Your DUI lawyer will help prepare you for court if your case proceeds to trial. If the prosecution’s case is weakened considerably, the charge may be reduced beforehand in a plea bargain or even dismissed.

Otherwise, you’ll need to present your defense at trial. Your lawyer’s experience in presenting evidence and in cross-examining police officers will come to the fore.

Independent expert witnesses may be called to support your claim, such as medical professionals who can explain how physical or medical issues affected your performance during the tests, boosting your chances of being acquitted.

Witnesses can provide testimony on your behalf, responding to questions by your DUI attorney and the State’s prosecution lawyer.

The common assumption that if you get pulled over by Kansas law enforcement on suspicion of drunk driving, you must submit to all DUI tests requested by police officers is false.

The truth is far more nuanced and depends on the type of test requested. It’s also worth bearing in mind that even though a test is not mandatory, refusing it can have legal consequences.

Field Sobriety Tests (FSTs)

• Mandatory? No. FSTs are strictly voluntary in Kansas.
• Legal to refuse? Yes, you have the legal right to decline these tests.
• Consequences of refusal:
  • No administrative penalty (no license suspension) for refusing physical FSTs.
  • An officer may still arrest you if they have enough other evidence (smell of alcohol, slurred speech, dangerous driving) to establish probable cause.

Preliminary Breath Tests (PBTs)

These are administered using a small, handheld breathalyzer at the roadside before an arrest.

• Mandatory? No.
• Legal to refuse? Yes.
• Consequences of refusal:
  • Refusal is classified as a traffic infraction (like a speeding ticket) and typically results in a fine.
  • Refusing a PBT does not result in an automatic driver’s license suspension.

Blood, Breath, or Urine Tests (Post-Arrest)

These are the “evidentiary” chemical tests requested after you have been arrested and read the Implied Consent Advisory. They are usually performed at the police station and only by a licensed professional.

• Mandatory? Yes (under the “implied consent” doctrine).
• Legal to refuse? Technically, you can physically refuse, but you cannot do so without severe legal penalty.
• Consequences of refusal:
  • License Suspension: For a first-time refusal, your license is typically suspended for one year, followed by a lengthy period (usually 2 years) of driving only with an ignition interlock device.
• Admissibility: Your refusal can be used against you in court as “evidence of consciousness of guilt.”
• Search warrants: If you refuse, the officer can often obtain a search warrant to draw your blood forcibly.

Legal assistance with a DUI case can help cast serious doubt on the accuracy of field sobriety tests. While the prosecution’s case may not rely solely on the results of the tests, “probable cause” is necessary for the arrest and charges that follow.

Without reliable test results, the DUI charges are less likely to stick when tested in court.

If you’re in the Topeka area and facing DUI charges, speak to a Topeka DUI lawyer at Irigonegaray & Revenaugh, during a free case evaluation. We will advise you of your legal options and how best to protect your legal rights and driving privileges.