Field Sobriety Tests

The field sobriety tests are strictly voluntary.  The experienced defense attorneys of Kennedy & Berner, LLP strongly advise you do not participate in the field sobriety tests.  For further information please contact our lawyers.  There are no legal consequences in refusing to take these physical tests.  These tests are evidence the prosecution will use against the defendant to help prove in court that the defendant was Driving Under the Influence. 

The government attempted to standardize the field sobriety tests through a series of studies: Colorado 1995, Florida 1997, and San Diego 1998.  These studies discovered only three field sobriety tests were “accurate and reliable.”  The three tests are the Horizontal Gaze Nystagmus (HGN), The Walk and Turn (WAT), and finally the One Leg Stand (OLS).  The test data concluded the following accuracy rates in establishing probable cause to arrest an individual for Driving Under the Influence:

·       HGN           77% accurate

·       WAT           68% accurate

·       OLS             65% accurate

Horizontal Gaze Nystagmus:

This test requires the defendant to stand still facing the police officer.  The officer will position a stimulus approximately 12 to 15 inches from the nose and slightly higher than the eyes.  The defendant must follow the stimulus with their eyes only.  They must not track the stimulus by moving their head otherwise the officer will note the defendant was unable to follow instructions. 

The officer will check to see if both eyes track equally, look for equal pupil size, and will determine if the defendant is exhibiting resting nystagmus.  The test will then begin.  The officer will observe the eyes to determine whether or not the defendant exhibits:

·       Lack of smooth pursuit

·       Distinct nystagmus at maximum deviation

·       Angle of onset prior to 45 degrees 

If an involuntary jerking of the eye ball is present the officer will mark this down in their report.  Proper administration of the HGN requires thorough training, and practice.  Even then it is only 77% accurate.  Of course it is an officer administering the test.  Presumably, the police officer does not have any medical training in ophthalmology, or any personal knowledge about the defendant’s specific eye physiology. 

Usually this test is administered at night and the police officer will shine a flashlight into the defendant’s eyes so he can look for the test results.  Try shining a flashlight into your eyes in the dark.  It is not a pleasant experience, and can cause watery eyes. 

Walk and Turn:

Here are the instructions for the Walk and Turn:

1.     Place your left foot on the line (real or imaginary).

2.     Place your right foot on the line ahead of the left foot, with heel of right foot against toe of left foot.

3.     Place your arms at your sides.

4.     Keep this position until I tell you to begin.  Do not start to walk until told to do so.

5.     Do you understand?

While the defendant remains in this position the police officer begins to instruct how to perform the test.  If the defendant moves their arms, steps out of position, begins to walk too early the officer will note these mistakes.  The officer continues with the instructions:

1.     When I tell you to start, take nine heel to toe steps, turn, and take nine heel to toe steps back.

2.     When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot.

3.     While you are walking, keep your arms at your sides, watch your feet at all times, and count each step out loud.

4.     Once you start walking, do not stop until you have completed the test.

5.     Do you understand?

6.     Begin, and count your first step from heel to toe as “One.”

It sounds like a simple test.  However, if you miss heel to toe once, and there is a 1.5 inch gap between the heel and toe, the officer will mark that on his report.  The defendant will take 18 steps during this test which means the defendant has 18 opportunities to miss heel to toe once by 1.5 inches.  One miss counts as a failure for that clue. 

One Leg Stand:

The instructions:

1.     Please stand with your feet together and your arms down at the sides.

2.     Do not start to perform the test until I tell you to do so.

3.     Do you understand the instructions so far?

4.     When I tell you to start, raise one let, either leg, approximately six inches off the ground, foot pointed out.

5.     You must keep both legs straight, arms at your sides.

6.     While holding that position, count out loud in the following manner: “one thousand and one, one thousand and two, and one thousand and three, until told to stop.

7.     Keep your arms at your sides at all times and keep watching the raised foot.

8.     Do you understand?

9.     Go ahead and perform the test.

The officer will watch the defendant perform the test and will look for the defendant to [1] sway while balancing, [2] use their arms for balance, [3] hopping, and [4] placing the raised foot on the ground.  Notice the defendant was never instructed to stand completely still throughout the test.  Yet the officer looks to see if the defendant sways. 

These are merely the “standardized” tests.  Some jurisdictions will administer the ABC test, Rhomberg Balance test, and Finger Dexterity test among many others.  These tests are purely subjective.  One must also consider the roadside conditions in which these tests are administered.  Temperature, weather, surface conditions, nerves, and performing the tests on a highway shoulder can severely impact the defendant’s performance.  Is it reasonable to believe a college athlete may perform better than a 70 year with arthritis?  How will you perform under these stressful conditions?