Hello all. I recently received a call from a local police department regarding a city prosecutor wanting to require SFSTs performed on all public intox arrests. I was wondering if anyone else requires this from their LE agencies? I am under the opinion that this seems like a part time prosecutor thinking more like a defense attorney instead of a prosecutor. However, as my wife points out often�..I can be wrong. I can see on occasion where this would be a good idea (a suspect stopped before getting in his vehicle) but requiring it for all PI arrests seems a bit of a stretch. With SFSTs purpose being to determine .08 BAC or greater I find it just does not fit well. What if the impairment is caused by other drugs introduced into the body that SFSTs don�t pick up? What if they suspect refuses to take the test to begin with? I would appreciate any feedback or insight you may have.

This is not an appropriate use of the SFSTs nor useful in proving the elements of public intoxication. For a DWI you're trying to prove loss of normal use of mental or physical faculties. The SFSTs are designed specifically to test that elemental issue- can the person follow directions, count appropriately, balance on their feet, etc.

Public intoxication, on the other hand, has a very different elemental requirement- is the person a danger to themselves or others. The SFSTs are NOT designed to test whether someone is dangerous. They're not even particularly probative of that issue. It's entirely possible that someone has lost the normal use of their physical faculties, but are not a danger to themselves or others. (The opposite is less likely to be true, but perhaps).

In some cases as well, the mere facts of a PI arrest are going to make the SFSTs inappropriate. Say you have someone who falls down drunk and hits their head in the parking lot as they're leaving the bar. HGN is now inappropriate due to head injury, and it's obviously unsafe to ask them to do any test requiring balance. In fact, if someone's being arrested for PI on the basis that they're a danger to themselves, is it really even appropriate to ask them to complete SFSTs without the possibility of creating a liability issue for your officers?

Such a requirement would be inappropriate and a misapplication of the SFSTs to the elements of the offense. All that should be required is for the officer to clearly articulate facts demonstrating that the person is a danger to themselves or others.

If the individual is intoxicated to the point they are a danger to themselves or others on two feet, how smart is it to make them stand on one?

Now I sympathize with folks trying PI's (I've tried at least 4 to juries). True officers don't write reports and trial testimony can often be reduced to "Saw drunk, arrested same". But the SFST's were designed to determine .08 BAC. They are really not real helpful in PI.

That said, field test would be great in PI cases, just not the standardized ones. For those of you that have seen me speak this is the perfect place for the "would you sleep with my partner here" sobriety test. Bring back the Alphabet test, how many fingers am I holding up, stand feet together and close your eyes? All great ideas.

I would suggest that a silly rule like this one by the prosecutor will make PI's harder to try in the long run. Wait till the crosses start. But I will absolutely agree officers need to do much more, the city prosecutor is just asking cops to use a screwdriver to pound a nail.

I think (for the reasons already listed) that SFSTs are not relevant to a PI investigation. They're designed to reveal clues of intoxication in a person that may appear to be okay, and they're calibrated around a 0.08 standard to boot. Since there is no "per se" definition of intoxication for PI purposes, I say it doesn't matter how may clues there are (or are not) on the SFSTs.

But to go beyond that, I believe that to require SFSTs even once, or talk about them at trial for PI as though they are relevant, makes all our jobs harder down the road. Once defense attorneys begin to think that SFSTs are relevant or even required for a PI arrest, that's all you will hear from them in every PI case. "Why didn't the officer do SFSTs?" they will ask, and then cross-examine on, which will just lead to you and your officers trying to explain subtle points of intoxication law to jurors.

Personally I'm tired of having to have this argument with defense attorneys. Every time it happens - every time an officer thinks he's supposed to do SFSTs for PIs, or is TOLD he's supposed to be doing them - that will lead to me having that argument a few dozen more times. Please help put a stop to this!