While one might think think I posted this article for the prurient interest, it is actually because of a statement in the article that annoyed me. I quote:
It wasn’t clear whether large breasts could be cited as part of a DUI case defense or whether case law supports such a contention.
Okay, Will Greenlee from Scripps, why did you feel the need to include this masterful insight? It wasn’t clear to whom, to you? How much research did you do to check? What is the purpose of this statement? While Marc is a Florida licensed attorney and I am not, I am going to go out on a limb here and say that this is not something one needs to cite as a formal defense or rely upon case law to contend.
Rather, this is a question of fact as to whether she had a reasonable basis to refuse or otherwise fail at a field sobriety test. I think it would have been better for her to try, and fail, rather than refuse, unless there was some medical reason why an attempt would be medically ill advised (e.g. pain). At trial, she may need to introduce biomechanical expert evidence to provide the opinion that large breasts interfere with the ability to perform FSTs, and that could be subject to a Daubert-type challenge. But Daubert (and state analogs) only speaks to the method by which scientific theory and evidence is admissible, not whether a particular theory is admissible. It is not a “large breast” defense, it is an “inability to perform FST” defense. It is a question of fact, not a question of law, so, typically no case law is warranted (unless there is a judicial notice issue, but I will avoid commenting on judicial notice of large breasts).
Journalist, stick to the story and stay out of the law. You only embarass yourself.