You thought you were about to get a speeding ticket, but now the cop at your window is asking you questions like, “How much have you had to drink tonight?” Now he’s asking you to step out of the car, and he wants you to take “roadside field sobriety tests.”
If you haven’t been drinking, what do you have to lose?
Below, I’ll talk about what the different types of field sobriety tests are, why it matters if they are “standardized” field sobriety tests, and why you may want to refuse them even if you have not been drinking…
What are Field Sobriety Tests (FSTs)?
Field sobriety tests, or FSTs, are “tests” that are administered by a police officer on the side of the highway that are supposed to tell the officer whether you are intoxicated.
Do they work?
Standardized vs. Non-Standardized Field Sobriety Tests
The National Highway Traffic Safety Administration (NHTSA) has been studying field sobriety tests for decades, and what they found is that many of the tests that officers have used during the last century are ineffective.
According to NHTSA, there are only three field sobriety tests that show a correlation between your “score” on the test and your level of intoxication – the horizontal gaze nystagmus test, the walk and turn test, and the one-legged stand test. Even these “standardized tests” have limited value unless they are carefully administered in conjunction with one another following NHTSA’s guidelines.
Non-standardized tests are not reliable and should not be admissible against a DUI defendant in court. The NHTSA manual even says that the officer should not administer the non-standardized tests unless it is physically impossible for a suspect to take the standardized FSTs.
Some of the non-standardized tests that are unreliable and have not been proven effective include:
- Standing with feet together and touching your finger to your nose;
- Counting backward;
- Variations of the “alphabet test” – say your alphabet beginning with the letter C and ending with the letter T, for example;
- The “hand pat test” – patting one hand with the other from the above and then beneath while counting, one, two, one, two;
- The “finger count test” – touching each finger to the thumb, counting one, two, three, four, and then reversing; and
- The “Rhomberg balance test” – standing with your feet together, head tilted back, and eyes closed for 30 seconds.
What are the Types of Field Sobriety Tests (FSTs) that are Allowed in SC?
The only standardized field sobriety tests (SFSTs) that are approved by NHTSA are the horizontal gaze nystagmus test, the one-legged stand, and the walk and turn test.
The Horizontal Gaze Nystagmus Test (HGN)
The horizontal gaze nystagmus test involves an officer moving a pen or small light back and forth in front of your eyes – you are supposed to follow it with your eyes. The object must be held at a certain distance from your eye (12-15 inches), at a certain angle, and must be moved from side to side smoothly at a certain speed.
Often, officers get it wrong – I have seen a video of a Myrtle Beach police officer wildly swinging a huge Maglite in front of a suspect’s face, for example, telling the suspect to follow it with his eyes…
If the officer does not follow the rules from their NHTSA training, the FST is invalid and any evidence of it should be excluded at trial.
The officer is looking for “nystagmus” – a medical condition that causes the eye to jerk involuntarily. The “clues” that the officer is looking for (in each eye) include:
- Equal pupil size,
- Resting nystagmus, and
- Equal tracking.
Is the HGN reliable?
Not really – it does not test for intoxication. It tests for whether you have nystagmus, a medical condition that could be caused by intoxication or that could be caused by 40+ other medical conditions.
The SC Supreme Court has held that the HGN test is admissible when it is used in conjunction with the other standardized field sobriety tests, but that it is circumstantial evidence only and it cannot establish any specific degree of blood alcohol content (BAC):
This Court concludes that evidence resulting from HGN tests, as from other field sobriety tests, is admissible when the HGN test was used to elicit objective manifestations of soberness or insobriety. See State v. Nagel, 30 Ohio App.3d 80, 506 N.E.2d 285 (1985). We hold that evidence arising from HGN tests is not conclusive proof of DUI. A positive HGN test result is to be regarded as merely circumstantial evidence of DUI. Furthermore, HGN tests shall not constitute evidence to establish a specific degree of blood alcohol content. See State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991).
We hold that testimony relating to the HGN test was admissible in the present case because the HGN test was used in conjunction with other field sobriety tests to establish evidence of DUI.
The Walk and Turn Test
Most people don’t realize that the walk and turn test is actually divided into two parts:
- Stand on the line with your right foot in front of your left foot, right heel touching the left toe, arms at sides, and hold the position until the officer finishes giving the instructions; then
- When the officer says begin, take nine heel-to-toe steps on the line, turn, and take nine heel-to-toe steps back. The officer demonstrates the walk and exactly how you should make the turn (keep the front foot on the line and turn with a series of small steps with the other foot), and continues the instructions – keep your arms at your sides, watch your feet at all times, count your steps out loud, don’t stop until you have completed the test.
Sounds like a lot of instructions to remember, doesn’t it? It’s around 10 or 11 different instructions that you must remember and execute perfectly. The “clues” the officer is looking for include:
- Doesn’t keep balance during instructions,
- Begins too soon,
- Stops while walking,
- Does not touch heel to toe on every step,
- Steps off the line,
- Uses arms for balance,
- Doesn’t make the turn properly, or
- Takes the wrong number of steps.
Does this sound like something most sober people can do without making a mistake? Particularly if they haven’t practiced it hundreds of times like the officer has?
The One-Legged Stand Test
What is the “one-legged stand test?”
The officer will tell you to stand with your feet together and your arms at your sides and not to begin the test until the officer has finished the instructions (how many people, sober or not, are already picking up one of their feet at this point?)
Then the officer will tell you to raise either leg with your foot six inches from the ground and your foot parallel to the ground, keeping your legs straight and your arms at your side. While holding that position, you should count “one thousand one, one thousand two, etc.” until told to stop.
The “clues” that the officer is looking for include:
- Using your arms to balance,
- Hopping, or
- Putting your foot down.
Foot not parallel to the ground? Swaying while standing straight with your feet together? Started the test before the officer said start? You “failed” and now the officer will testify that your performance indicates you are intoxicated…
Are the Field Sobriety Tests Reliable?
Should you take field sobriety tests on the roadside?
You don’t have to. But you should know that, if you refuse the FSTs, many officers will arrest you and charge you with DUI. If you were going to be arrested anyway, though, why give the officer ammunition to convict you at trial?
If you do take the tests, you should know that they are designed for you to fail.
Don’t believe me? Carefully follow the instructions above and give yourself the tests while you are 100% sober. Give them to your spouse or coworker, watch carefully for any of the clues, and you will see how difficult the tests are.
At trial, every DUI defense lawyer should make the officer demonstrate – more than once, if possible – for the jurors. Why? To make the point that this physically fit officer with no medical problems has practiced these tests hundreds of times over their career. Unlike most suspects on the side of the road who are hearing the instructions and attempting the test for the first time…
At trial, every DUI defense attorney should also tell the jurors to try the field sobriety tests themselves in the jury room, so they can see how difficult they really are – let them hear the instructions enough times during the trial that they can administer the tests to one another during their deliberations…
The officer’s NHTSA training is clear that, if you have any medical problems that could interfere with your performance on the test, the test will be invalid. Many officers do not tell you this, and they will make you take the test anyway.
Overweight? Injuries to your legs, feet, or back? Vertigo or other balance issues? Sore from a long drive? The list of conditions and circumstances that would make the results invalid is long, and you should discuss with your attorney any medical issues that may have affected your performance on the SFTs.
The tests are designed for you to fail, because most officers can identify enough “clues” on each test to “fail” you, regardless of how much you have had to drink. It’s subjective – if the officer thinks you’ve been drinking, you will “fail” the tests. If the officer doesn’t think you’ve been drinking, you may “pass” the tests.
But, if the officer doesn’t think you’ve been drinking, why is he or she giving you the tests in the first place?
SC DUI Defense Lawyer in Conway, SC
If you have been charged with DUI or DUAC in Myrtle Beach, Conway, or anywhere in the Horry County area, you may have valid defenses to the charge or there may be grounds to get your case dismissed. You may also be able to challenge the results of any FSTs you were given on the roadside…
Contact DUI Defense Lawyer Johnny Gardner now at (843) 248-7135 for a free consultation to find out how we can help.