When you get pulled over for suspected DUI, the officer will ask you to accept performing a couple of field sobriety tests (FST). These are exercises designed to test the coordination, balance, and the attentiveness of a driver. Police officers are trained to look for various things before arresting a person for intoxicated driving. After noticing some symptoms, they will want to investigate further and ask you to do the tests. Failure in these tests will lead to your arrest for DUI. Charges of driving under the influence come with severe penalties and serious repercussions. Having a DUI lawyer fight these charges on your behalf is the best thing you can do, and we at the Orange County DUI Defense Attorney Law Firm are here to help you fight these allegations.
An Overview of Field Sobriety Tests
When a police officer has a reason to stop a motorist for suspected intoxicated driving, they usually carry out further tests to determine whether to arrest them or not. These are the field sobriety tests, as earlier mentioned. Many innocent people have been arrested after failing these tests, even when they are not intoxicated. This has led to the conclusion that the tests are not accurate in many instances and not a reliable way to conclude that a driver is intoxicated.
Most drivers fail these tests, even when they are sober. The results of the tests are typically used against you to get a DUI conviction when the case goes to trial. It is essential to understand that the law does not make it mandatory for a motorist to submit to FSTs. This means that a motorist can decline to submit to the tests, and no charges will be brought against them for refusal. However, this does not mean that you will not be lawfully arrested for suspected DUI when you decline the test.
Even when a motorist would not be penalized for refusing to take these tests, an officer would want to make it seem that you should submit. Get in touch with a DUI attorney to help and guide you through the process instead. Remember, a DUI attorney knows the loopholes in these tests. He or she understands how to challenge their results in a court of law.
Officers can make manipulative statements to make you submit to the tests. It is always important to know your rights, and one of them is that you do not have to submit. The tests are designed to give an officer further reasons to arrest you. In most cases, the officer has already decided to arrest you; they want more evidence.
One may wonder when not submit to the tests if they are not drunk or drugged. The problem is that even when sober, many people have failed them, and sometimes a drunk driver passes them. When you fail the test, and you are sober, you may get unfair and biased treatment because an officer believes you are drunk. There are various reasons a person can fail these tests. Some of these are:
- Medical problems. A person may be suffering from a medical condition that affects their speech or balance. Failing these tests is possible under these circumstances, yet the person is not drunk.
- Environmental conditions. The weather at the time the FSTs are being conducted can affect how a motorist performs.
- The age of the motorist. An older person has less balance than a younger person.
- Obese individuals may find it challenging to stand on one foot. Losing balance does not mean they are drunk.
- The clothing a motorist is wearing can make it uncomfortable to take the test. This, in many cases, results in failure of the tests, and the driver is arrested for drunk driving.
- Shoes can affect how a person walks or balances. This is common with female motorists that wear high heels. They can easily lose balance, and an officer concludes they are drunk
- Incorrect instructions. An officer can give directions to a motorist that can be confusing to them. Wrong instructions will lead to false results.
When You Must Submit to a Field Sobriety Test
Although under normal circumstances, one would not be punished for declining to submit to these tests, there are instances where the law expects a motorist to submit. If you are below the age of 21 and are stopped for suspected drunk or drugged driving, you don’t have the privilege to refuse a field sobriety test. Refusal, in this case, is considered an admission of guilt, even when further tests or investigations will have to be carried out. When you fall under this category, a refusal will lead to specific penalties, or when tried for the offense, your refusal will be an aggravating factor to call for harsher penalties.
If you are a motorist serving DUI probation, you must also submit to a field sobriety test. Refusal, in this case, will be taken to mean you are guilty of the offense. One of the conditions for DUI probation is that the driver does not commit another crime while on probation. Refusal to submit to a field sobriety test while you are on DUI probation is an offense that can result in the revocation of your probation.
Standardized Field Sobriety Tests
Multiple sobriety tests can be carried out on motorists suspected of intoxicated driving. However, not all of them are standardized according to the National Highway Traffic Safety Administration (NHTSA). This is a government agency found in the United States Department of Transportation that regulates various aspects of road safety. One of its duties is to issue the police with the protocols necessary when conducting FSTs.
Out of the many FSTs used by different police departments, the NHTSA has standardized three of them as the most reliable. These are:
- Walk and Turn (WAT) tests
- Horizontal gaze nystagmus (HGN) test
- One leg stand (OLS) test
These three are the standardized tests, although many more are still used. The NHTSA believes they are the most reliable in showing the impairment of a driver if administered accurately.
How the NHTSA has Validated these Standardized Tests
The NHTSA facilitated research on the sobriety tests by the Police Department of San Diego in 2018. From the many field tests sampled, the three standardized ones showed a better correlation between the failure of the tests and the level of DUI impairment of a driver. However, even with these outcomes, the tests are not 100% accurate and are subject to many errors, as we will discuss later.
Here, we will discuss every standardized field sobriety test, how it is administered, and what the officers are usually on the lookout for.
The Horizontal Gaze Nystagmus Test (HGN)
When stopped for suspected drunk driving, an officer may ask you to gaze at an object such as a pen and request you to move your eyes as the object moves. The driver is instructed to gaze at an object that makes a horizontal movement from one end to the other. What an officer is looking for is to see if your eyes involuntarily jerk from one side. Additionally, the driver is not aware of the jerking movements, making the officer conclude they are impaired. This is what is termed as nystagmus.
Many types of nystagmus are known, but only a few are a result of alcohol impairment. The driver is instructed to follow an object with their eyes. The officer keenly looks for the angle when the pupils display nystagmus. If nystagmus starts early, especially at or before reaching a 45-degree angle, this means the level of alcohol in the driver’s blood is very high.
According to the study, the NHTSA has rated this test to be 88% accurate. This means the test can determine a person is driving with a 0.08% BAC or more at 88% accuracy.
Walk and Turn Test (WAT)
This test is geared towards testing divided attention. This test requires the driver to focus on a physical and mental task simultaneously. This test will be referred to in different terms, but it is the same. Some of the names are:
- DUI straight-line test
- Nine-step walk and turn
- Nine-step test
- DUI walk the line test
According to the NHTSA, failure in this test has a 79% accuracy in determining the driver has a blood alcohol concentration of 0.08% or higher.
During the administration of this test, the motorist is expected to remember instructions issued as they carry out physical movements such as:
- Making nine steps that touch your toes to your heel, either on an imaginary or real line
- Pivoting or turning around
- Making other nine similar steps as you walk back to the starting point.
As the test is being carried out, the police are observant of several signs of impairment. Some of the symptoms the officer hopes to see include:
- If the motorist can keep their balance as they are receiving instructions
- If the motorist will begin to walk soon
- If a motorist makes a stop while walking
- If the motorist is unable to touch their toes to their heels
- If the motorist is unable to stay on the line
- If the motorist uses their hands to maintain balance
- At the end of the line or the nine steps, if the driver fails in turning
- If the motorist takes more or fewer steps according to the instructions
When the driver displays any or some of the above signs, the officer gets convinced that they are intoxicated. An arrest will then follow to allow for further testing at the station.
One Leg Stand Test (OLS)
This is another test designed to gauge the attentiveness of the driver. The driver is given instructions while performing a task to determine how attentive they are. In administering this test, the driver is instructed to:
- Lift their foot from the ground to approximately six inches
- Hold their position
- Count audibly from 1001 to 1030
- Turn their head and look at their foot
As the officer is administering this test, he or she is on the lookout for various signs that would indicate the impairment of the driver. These may include:
- If the driver sways from one side to the other
- If the driver will attempt to use their hands to maintain balance
- If the driver is unable to stand still but hops
- If the driver is unable to hold their foot up for the period of counting
This test, according to the NHTSA, has an 83% accuracy to indicate the driver may be operating the vehicle when their BAC is at 0.08% or more.
Non-Standardized Field Sobriety Tests
Aside from the three standardized tests, there are various other tests frequently used by law enforcement officers in California. Unfortunately, although they are used, there is often minimal or no correlation between their failure and impairment.
It is even worse since how they are administered will vary from officer to officer. This raises many questions regarding how legitimate they are in terms of accuracy. Here, we will discuss some of the frequently used non-standardized field sobriety tests in California.
The Hand Pat Test
This is another divided attention sobriety test. This test involves patting the side of one hand and the other as they count. The driver is expected to:
- Extend one hand while holding their palm up at the front. Then, place the other hand on it with their palm downwards. The hand at the top begins to pat the hand at the bottom.
- The hand at the top then makes a 180 degree turn to tap on the opposite side. The driver makes these alternating movements between both hands, ensuring the hand being tapped stays stationary.
- As the suspect is patting their hand, they will be expected to audibly count one and two on each pat as they carry it out.
The officer administering this test is on the lookout for various signs of impairment. Some of the symptoms they are looking out for include:
- The driver’s ability to understand and follow instructions
- If the driver can count accurately
- How they rotate and the hand’s sequence while patting
- If the driver can begin and end the test
Finger to Nose Test
This is another sobriety test that has been used for many years and is popular among law enforcement officers in California. During the administration of the test, the motorist is expected to:
- Touch the top of their nose using their index finger. This is done with eyes closed, and head tilted backward.
- Repeat the movement three times on every hand. The police officer will tell the suspect when to change hands during this test.
As the test is being carried out, the officer will be observing to notice a few signs that indicate impairment. These are:
- The ability of the driver to listen and follow instructions
- How much the driver sways and the direction they sway
- Any tremors of their eyelids or legs
- How tense their muscles are
- Unusual noises or statements the driver may make as they carry out the test
- How deeply the driver can perceive their surrounding
- If the driver can touch their nose as instructed or touches their face
The Rhomberg Balance Test
This test is designed to test the internal clock of the driver. To administer this test, the officer asks the driver to:
- Stand while putting their feet together
- Tilt their head back slightly
- Keep their eyes closed
- Estimate when thirty seconds lapse
- When they believe the time given has lapsed, they should tilt their head forward and open their eyes and utter the word stop.
In showing the impairment of the driver, the police will look for the following:
- The direction and how much a driver will sway
- How accurate the estimate of the time passed is
- Tremors of the legs or eyelids
- How tense the driver’s muscles are
- The ability to listen and follow instructions
- Statements or strange noises the suspect makes
Finger Count Test
To administer this sobriety test, the police officer will ask the motorist to:
- Extend one hand at the front with the palm facing upwards
- Use the thumb of the open hand to touch each finger while counting to the last one
- Repeat the test with the other hand and ensure three sets of the test are completed
To establish if the driver is impaired, the officer will be looking at five signs. These are
- Being able to listen and follow instructions
- Counting accurately
- Being able to touch every finger to the thumb separately
- Being ready to begin and end the test according to instructions
- Carrying out the correct amount of sets
Conditions that Affect the Accuracy of the Field Sobriety Tests
As earlier stated, FSTs are not highly accurate in determining the impairment of a driver. This is because various conditions make it challenging to perform the tests well. Failure due to these conditions is often taken to mean impairment, even when it is not the case.
However, the NHTSA expects the standardized tests to be carried out under conducive and safe conditions. Unfortunately, the non-standardized tests do not have a set procedure to follow. Even when these tests are carried out, the jury or court will expect they are carried out fairly and under suitable conditions. Various conditions can interfere with the validity and accuracy of the tests. These are:
The ground under which the tests are carried out should not place the suspect at any risk of falling. Generally, the surface where the tests are done should be fairly hard, dry, non-slippery, and leveled. Additionally, there should be adequate room to carry out the sobriety test. If the area of the stop is not conducive, the suspect can be moved to a more suitable area.
The location where the tests are carried out should be well lit. The suspect must see the police officer and the area well. Use of a flashlight to light the location is permitted. Lack of lighting also affects the performance of these tests with sober drivers.
A driver must hear the instructions given clearly. The same applies to the officer that is administering the test. When both the motorist and officers don’t hear each other well, it will result in miscommunication and failure of the test. The officer must make sure the location is suitable to carry out the test.
Challenging the Results of a Field Sobriety Test
The results of field sobriety tests can be used in a court of law to get a conviction against you. However, an experienced DUI lawyer can challenge the validity of the results, as earlier stated. Some of the strategies a lawyer would use include:
- The mental and physical condition can be responsible for a driver to fail the sobriety tests. The driver could be sick, aged, has a back or leg problem, hearing challenges, is overweight or in pain. A driver can also feel intimidated or has a mental challenge that makes it challenging to pass the test.
- Officer’s movement can also cause a distraction. During the administering of the test, the officer must remain still, which can be difficult to do.
- Inappropriate clothing can also make it difficult to take sobriety tests. A person with very high shoes or tight clothes, among others, can find it difficult to pass these tests.
- Wrongful timing can also affect the results of a sobriety test. The officer’s watch must be accurate, and a lawyer can challenge this.
- The conditions of the environment can also affect the validity of the results. Improper lighting, uneven ground, or wet ground are some of the challenges of taking the test.
- Non-standardized tests do not have set procedures to follow. These can make them administered differently, and the results will not be consistent.
Find an Expert DUI Attorney Near Me
DUI offenses are taken seriously in California. A conviction attracts severe penalties to the defendant. Results from a field sobriety test can be used to aid in convicting a suspect, yet they are not always accurate. Challenging these results as well as other evidence presented against you can help a DUI attorney fight these allegations. Talking to a lawyer can help you fight against these charges and avoid wrongful convictions. We invite you to get in touch with our attorneys at the Orange County DUI Defense Attorney to help in your DUI defense by challenging the field sobriety test results. Get in touch with us today at 714-740-7866.