The police are always looking for impaired drivers, or what they think are impaired drivers. Does failing a Field Sobriety Test (FST) necessarily mean that you are guilty of DUI? Here are 5 Things to Know About DUI Field Sobriety Tests:
When law enforcement makes a civil traffic stop (such as failure to stop, failure to yield, speeding, etc.) they are also attempting to determine if the driver is under the influence. The police only need reasonable suspicion that the driver is under the influence to request that the driver participate in Field Sobriety Tests (also known as Field Sobriety Exercises). Reasonable suspicion is often stated by the officer to be things like, “bloodshot, watery eyes, slurred speech, odor of alcohol on or about the person.”
The standard Field Sobriety Tests (FSTs) include the Horizontal Gaze Nystagmus (HGN) test, the Walk-and-Turn (WAT) test, and the One-Leg Stand (OLS) test. The Field Sobriety Tests are used by police officers to develop probable cause to make an arrest for Driving Under The Influence (DUI).
#1: You have no legal obligation to perform Field Sobriety Tests.
That’s right. Despite law enforcement making it sound like you must take Field Sobriety Tests there is nothing under the law that says you must participate. That said, there remains the possibility that you will still be arrested for DUI when you refuse to participate in Field Sobriety Tests. That’s because police can simply establish probable cause for the arrest based on their observations even without Field Sobriety Tests or a Breath Test. No Field Sobriety Tests means that the State Attorney does not have this evidence to use against you, but they will argue that you had a “consciousness of guilt” as to why you refused the FSTs. Field Sobriety Tests can help when the driver does a good job completing the tests - your attorney can argue that your normal faculties were not impaired. Field Sobriety Tests can hurt your case when the driver does poorly on the tests and the State Attorney can use this evidence in their prosecution of the DUI.
#2: You cannot tell how you have performed on the Horizontal Gaze Nystagmus (HGN) Test.
This test often starts with the officer stating that they are going to “check your eyes.” Officers have the driver track a light or the tip of a pen across their horizontal gaze. The officer is looking for “Nystagmus” which is an involuntary jerking or bouncing of the eyeball over which an individual has absolutely no control. Only a properly trained officer can determine if Nystagmus is present that would indicate possible impairment. The person taking the HGN test has no way of knowing how they are performing on the test.
#3: Field Sobriety Tests (FSTs) are divided attention tests.
You may think that the Walk-and-Turn (WAT) test is only testing your ability to actually “walk the line.” In fact, officers are looking for multiple clues of impairment beyond the specific task that you have been asked to perform. During the Walk-and-Turn (WAT) test the officer may ask the driver to stand in a very specific position before starting the test, to hold their arms by their sides during the test, to count their steps, to take a specific number of steps, and to perform a very specific and unnatural turn at the end of the line. All of these instructions and directives divide the driver’s attention and force them to focus on multiple tasks. Officers look for any failure to complete any aspect of the test (called “clues of impairment”), not just whether or not the driver can successfully put both feet on the line while walking.
#4: Police can use other tests beyond the three standard tests.
While the standard Field Sobriety Tests (FSTs) include the Horizontal Gaze Nystagmus (HGN) test, the Walk-and-Turn (WAT) test, and the One-Leg Stand (OLS) test, officers can at their discretion, or due to the physical limitations of the driver, employ alternative Field Sobriety Tests (FSTs) including the Finger-to-Nose Test, the Romberg Alphabet Test, and the Counting Test. While there are many issues with the standard FSTs, there are even more with the alternative tests. An example: the Romberg Alphabet Test is typically administered with the officer instructing the driver to tilt their head back while reciting the alphabet A-Z (another common misconception is that it is recited backwards which is not true). The issue is that the Romberg test originally developed by neurologist Moniz Romberg in the 1800s was used to test for neurological issues, not DUI. Further, the original test did not include tilting one’s head backwards. The human head weighs on average over 10 pounds and shifts your center of balance when tilted backwards, and when tilted backwards can cause issues with the fluids in your inner ear also affecting your balance.
#5: Failure of Field Sobriety Tests (FSTs) does not mean that you are guilty of DUI.
Sure, the police can arrest you for what they believe to be driving while your normal faculties are impaired based on an alleged failure of the Field Sobriety Tests (FSTs), but they are not always right. There are a variety of ways that a skilled attorney can defend your case even when the police say that you “failed” your Field Sobriety Tests (FSTs). Defenses include that the officer was inadequately trained to administer the tests, a failure of the office to actually administer the tests, improper grading of the tests, and false positive results that may be attributed to inherited, metabolic, physiologic, toxic, immunologic, or other disorders.
If you were stopped and arrested for DUI you should consult with an attorney who can assess the facts and circumstances of your arrest and formulate a plan for your best defense. We will review the stop, field sobriety tests, breath test and other associated evidence in an effort to resolve your case successfully. We have significant experience defending DUI cases including experience as a former State Attorney in Pinellas County and experience on the Pinellas County State Attorney’s DUI Manslaughter and Vehicular Homicide Squad. Contact the Morris Law Firm at (727) 388-4736 for a strategic review of your DUI case. The Morris Law Firm represents clients throughout the Tampa Bay Area, including Pinellas and Hillsborough counties.