As an attorney who for years has primarily focused on DUI defense, I cannot tell you how many times a client has told me “I passed all of my field sobriety tests but the officer still arrested me.” The interesting thing, which is extremely difficult to appreciate for someone who lacks experience in DUIs is that you truly cannot really pass or fail field sobriety tests (FSTs). The basic assumption is that the FST is administered correctly by the officer. This of course is understandable because you would think that a police officer knows how to competently do his/her job. However, one of the ways that FST’s are challenged is by showing that they in fact were not administered correctly. Remember, these tests are subjective. It is the officer who administers them and then determines whether they were performed accurately. So by attacking the administration of the test is the first way to show that the results are unreliable.
The Horizontal Gaze Nystagmus Test (HGN) has its own problems as well. This is the test where the officers typically places a pen or pen light in front of a person’s face, slowly moves it from left to right, and asks the person to track it without moving their head. The purpose of this test is to see if the person’s eyeball twitches at 45 degree angles. If so, the person is thought to have a bac of .05 or above. The problem with this test is that there are other reasons, not involving alcohol, that cause the presence of nystagmus at 45 degrees. These reasons include past head or brain trauma, seizure, diabetes, just to name of few. Additionally, there is a percentage of people who have naturally occurring nystagmus. So, this test does little to show alcohol level or impairment.
The Walk and Turn Test is another test was that law enforcement uses to build a DUI case. The officer typically demonstrates the test by showing a line (real or imaginary) and instructing the person to take 9 steps along this line, pivot, and take nine steps back. The officer typically indicates that an individual failed the test due to using arms to balance, not walking heel to toe, not following directions as instructed, not counting the steps correctly, stopping/starting to early. Granted, there are many reasons that people have problems with this test. Physical conditions, like bad knees or a bad back; clothing issues like high heels; or, mental conditions like nervousness, stress, ADD, ADHD, or dyslexia. This is just another example of how the deck is stacked against the driver when dealing with officers performing FSTs.
In closing, although I have only touched on a couple of FSTs you can see that they are not a true way to determine impairment. There is no pass or fail. However, it is not wise to tell the officer “I couldn’t pass these tests if I were sober.” It’s a phrase that is usually stated out of nervousness and doesn’t necessarily show that the person has enough alcohol in his/her system to be impaired. But you can see how it can look really bad.
Here’s a caveat: in California FSTs are typically voluntary. The officer usually won’t voluntarily tell you this. So, it’s up to you to ask the officer if you have the right to refuse the FST. After all, why help them build a case full of false evidence against you???
Stay tuned for next week when we discuss future technology that will be used to arrest DUI drivers.