DWI — Field Sobriety Tests

Field Sobriety Tests (FSTs)


It is an interesting phenomenon that most individuals perform the FSTs without any hesitation, and then refuse to provide a breath or blood sample – the refusal of which carries a 180 day driver license suspension. I have asked many prospective clients why they performed the FSTs and then refused the breath or blood test. The answer is always the same! Every one of them said they “thought they had to”. However, based on the way the officer talks to the potential defendant, and based on the words used by the officer, it’s easy to understand why the individual thinks the FSTs are required.


The truth! You are under no legal obligation to perform any Field Sobriety Tests and there are no legal consequences if you refuse to do so. However, you should also know that the prosecutor will likely be more difficult to work with when the defendant has not “cooperated” with the officer (as they see it). You should also know that in the event your case is tried to a judge or jury, the fact that you refused to perform the tests, or provide a specimen of your breath or blood, is admissible evidence to the judge or jury. It is up to your lawyer to be persuasive that your refusals were an exercise on your legal rights.

Obviously, if an individual has not consumed any alcohol or has not taken any medications that could have affected his or her mental or physical capabilities, the individual should answer every question that the officer asks and perform whatever tests he or she requests. The results, whatever they may be, cannot be linked to alcohol or drug consumption.

You should realize that these tests are not Fail – Pass tests. They simply provide “clues” to the testing officer. If he finds some clues, that will support his decision to arrest you.

Among the common Field Sobriety Tests are:

The Standardized Field Sobriety Test (SFST) battery is composed of three tests:

  • A. Horizontal Gaze Nystagmus (HGN)
  • B. Walk-and-Turn (WAT)
  • C. One-Leg Stand (OLS)

The administration of these test are standardized, which means they must be performed by the officer precisely as required by the established procedure. It is interesting to note that although the results are admissible in a court, the accuracy of the SFSTs in correctly identifying intoxicated drivers is between 65%-77%. That means that the tests are inaccurate 23% - 35% of the time. This is another reason why an individual should carefully consider whether to hire an attorney. A skilled and knowledgeable attorney has experience in evaluating the effect of SFSTs in your particular case.

Horizontal Gaze Nystagmus (HGN)

“Nystagmus” means an involuntary jerking of your eyes. HGN refers to an involuntary jerking occurring as the eyes gaze toward the side. In addition to being involuntary you are unaware that the jerking is happening. The theory behind the test is that nystagmus becomes readily noticeable when you are impaired.

The eyes are examined for three specific clues:

  • Lack of Smooth Pursuit – does the eye move slowly or does it jerk noticeably?

  • Distinct Nystagmus at Maximum Deviation – when the eye moves as far to the side as possible and is kept at that position for several seconds, does it jerk distinctly?

  • Onset of Nystagmus Prior to 45% – as the eye moves to the side, does it start to jerk prior to a 45% angle?

 

Walk and Turn (WAT)

The WAT is a divided attention test consisting of two phases: Instruction Phase and Walking Phase. The officer will give you instructions while he is asking you to follow some of the instructions. Then, before you begin the test, he will ask you if you “understand” his instructions. Almost every person says “yes”, even though almost none could even come close to repeating what the officer instructed. The officer observes performance for eight clues:

  • Unable to maintain balance during instructions
  • Starting too soon
  • Stopping while taking steps
  • Not touching heel to toe
  • Stepping off of the line (most of the time which is an imaginary line)
  • Using arms for balance
  • Losing balance on turn or turns incorrectly; and
  • Taking the wrong number of steps

Two or more clues provides the officer an additional basis for arresting you.

One Leg Stand (OLS)

The OLS is also divided into two phases. During the Instruction Phase, you must stand with your feet together, keep your arms at your side and listen to instructions. During the Balance and Counting Phase, you must raise the leg of your choice approximately 6 inches off the ground, toes pointed out, keeping leg straight. You will be instructed that, while looking at your elevated foot, you should count out loud in the following manner: “one thousand and one”, “one thousand and two”, etc, until the officer tells you to stop, which is usually 30 seconds. The officer looks for the following clues:

  • Swaying while balancing
  • Using arms to balance
  • Hopping
  • Putting the foot down

Two or more clues gives the officer an additional basis for arresting you.

Other non-standardized tests sometimes used by officers are:

1. Romberg – You are instructed to stand with your feet together, your head tipped back, your eyes closed, and your arms at your side for 30 seconds. Performing this test outside a 5 seconds margin of error, either too short or too long will be counted as a sign of intoxication. The officer will also look for swaying during this time.

2. Finger touch or Finger Roll – you will be asked to touch each finger with your thumb, and count 1-2-3-4-5 and back 5-4-3-2-1. Missing fingers or counting incorrectly will be seen as a sign of intoxication.

3. Recite the alphabet – Oh no! Not from the beginning as you have recited all your life! First the officer will ask you if you know the alphabet. Not wanting to appear dumb, you, of course will say “yes”. Then he will instruct you to begin with some letter other than “A”. It’s amazing how easy it is to mess this one up… even when completely sober.

Have Your Attorney Review the Videotape

It is important for your attorney to review the videotape, if available, to ascertain whether the tests were properly administered, and whether keeping the results out of evidence is possible. This evaluation takes, knowledge, skill and experience. These tests could make a huge difference in the outcome of your case, whether through the plea-bargain process, or a trial.

Remember – You are being filmed while all of this is going on. You are voluntarily making the State’s case against you.

 

Call (713) 521-7568 now and speak with Scott Markowitz. Get the facts on whether you may qualify for a reduction of surcharges.