During DUI investigations, police administer several field sobriety tests, commonly abbreviated as FSTs. If you perform poorly in the tests, it is often an indication that you are impaired with alcohol or drugs. In California and some other states, the police rely on field sobriety tests when making DUI arrests. Different tests have different levels of accuracy in determining if a person has a blood alcohol concentration that exceeds the legal limit of 0.08%. For instance, the one-leg stand test has an accuracy level of 83% while the walk and turn test has an accuracy level of 79%. After an arrest for DUI in California, attorneys from the Orange County DUI Defense Lawyer can help you challenge the results of FSTs.
Understanding Field Sobriety Tests
The National Highway Traffic Safety Administration is responsible for issuing police protocols for DUI field sobriety testing in California and other states. Commonly abbreviated as NHTSA, The National Highway Traffic Safety Administration is a federal agency. The agency operates under the U.S Department of Transportation.
Dozens of field sobriety tests exist, and various law enforcement agencies may use different tests. Of all the tests available, the NHTSA has validated three main FSTs as reliable. Therefore, field sobriety tests fall under two categories, which are standardized tests and non-standardized tests. NHTSA considers the standardized tests as reliable indicators and predictors of a driver's impairment. However, for the best results, proper administration of the tests is necessary. Usually, the agency validates tests that establish a high correlation between poor performance on the test and DUI impairment.
Of the numerous field sobriety tests available, the NHTSA has standardized three tests as the most reliable. The standardized tests include the horizontal gaze nystagmus test (HGN), the one-leg stand test (OLS), and the walk and turn test (WAT).
WAT (Walk and Turn Test)
The police administer the walk and turn test to check for divided attention in the victim. The WAT test is a "divided attention" test. The tests require you to be concentrative and alert while carrying out physical and mental tasks at the same time. Many people refer to the walk and turn test by other names. The alternative names for the tests include the "nine-step test," the "nine-step walk turn," and the "DUI straight-line test." The WAT test also goes by the name "DUI walk the line" test.
According to the NHTSA, there is a 79% correlation between the poor results on the WAT test and impairment (having a BAC of .08% or more). What will you do during the walk and turn test? During the test, the police will require you to remember and follow instructions while carrying out various physical movements. For instance, one of the tasks may entail taking nine heels to toe steps on an imaginary or a real line. Upon taking the steps, the police may request you to take the nine heel-to-toe steps back. The police may also ask you to pivot around. While you follow the instructions given by the police, the police will be looking for signs of impairment. For instance, the police will check whether you can keep your balance while following the instructions. The police will also check if you start too soon or if you stop while walking. Signs of impairment may include using your arms to balance and failing to turn correctly. The police will also check whether you fail to touch heel-to-toe or if you step off the line while walking.
OLS (One Leg Test)
Just like the walk and turn test, a one-leg test is also a form of "divided attention" test. During this test, the police officer may instruct you to raise your foot around six inches off the ground. The officer may then instruct you to hold still in that position for a while. The arresting officer may instruct you to count from 1001 to 1030. At times, the officer will also instruct you to look down at his or her foot. As you carry out these tasks, the officer will be watching you closely and looking for signs of impairment.
If you sway or use your arms to balance when carrying out the tasks, it may be an indication of impairment. You may also be impaired if you are unable to hold your foot in a raised position and if you hop around due to loss of balance. The test of one leg stand has an 83% success rate. Thus, there is an 83% likelihood that a person who portrays two or more signs of impairment while carrying out the OLS test has a BAC of .08%.
HGN (Horizontal Gaze Nystagmus)
Horizontal gaze nystagmus refers to the involuntary jerking of the eyes while moving your eyes towards the side. If you are experiencing the nystagmus test, there is more to the involuntary jerking of the eyes. You will not be aware of the nystagmus, but the law enforcement officers will notice it. There are several forms of nystagmus. However, it is important to note that alcohol only has an influence on some of the nystagmus and not others. The test administered by the law enforcement officers by the roadside is one of horizontal gaze nystagmus.
When administering the HGN test, the officer moves a stimulus to the right or the left and instructs the driver to follow the stimulus with his or her eyes. As you follow the stimulus with your eyes, the officer will keenly watch you and note the angle at which your pupils portray the involuntary jerking of the eye.
If you have an early jerking of the eye, that is, if your eye jerks at or before a forty-five-degree angle, it is an indication of a high blood alcohol concentration. The HGN test has a reliability of 88%, according to NHTSA. The test has a high chance of determining whether a driver is under the influence of alcohol.
Non-Standardized Field Sobriety Tests
California law enforcement officers use several tests in addition to the standardized FSTs. The law enforcement officers use the non-standardized tests, even if the tests portray a low correlation between their poor results and DUI impairment. Different police officers may administer non-standardized tests in different manners, leading to non-uniformity. Some of the leading non-standardized field sobriety tests often used by officers in California include:
The "Finger-to-Nose" Field Sobriety Test
This test is one of the ancient field sobriety tests that have been in use in California. Upon stopping your vehicle and suspecting that you are under the influence, the police request you to perform several tasks. The police may tell you to bring the tip of your index finger and touch the tip of your nose. Typically, the police tell you to conduct this exercise with your eyes closed or after tilting your head slightly back.
The officers may tell you to repeat the procedure several times using different hands. For instance, you may touch the tip of your nose three times with each hand. The police will give you instructions on whether to use the right or left hand. To tell whether you are under the influence, the police will lookout for signs of intoxication.
For instance, the police will check your ability to follow instructions. The officer will also be keen to note the direction in which you sway. Other signs that the police may look for are your muscle tone, leg, eyelid, or body tremors. If you make unusual statements when carrying out the exercise, it may be an indication that you are impaired. If you are under the influence, you may struggle to touch the tip of your nose using the tip of your mouth. Instead, you may end up touching your face with your hand.
Hand Pat Field Test
This test falls under the "divided attention" test that comes in handy when checking for impairment. When administering this test, the police may tell you to part one side of the hand and then tap the other while counting. In most cases, the officer tells the driver to extend one hand with the palm facing up and place the other hand on the extended one with the palm facing down. Then, proceed to tap the bottom hand using the top hand.
In some instances, the officer may require you to rotate the top hand to a certain degree, while the bottom hand remains stationary. You have to count out lose each time you pat the bottom hand. As you carry out the exercise, the law enforcement officer will watch you see if you are impaired. The officer checks if you can follow instructions. You may not be able to count properly if you are under the influence. Other factors that the officer will consider include the proper timing of when you carry out the test and your sequence and rotation of hand patting.
The Rhomberg Balance Test
This field sobriety test aims to evaluate your time consciousness or internal clock. While administering the Rhomberg balance test, the police tell you to stand with your feet together. The police will then tell you to tilt your head slightly back. You should have your eyes closed while undergoing the test. To test impairment, the police may tell you to estimate the passage of thirty seconds.
After estimating that thirty minutes are over, you should tilt your head forward, open your eyes, and say stop. The police will keenly check the direction in which you sway while following the instructions. The police will also determine your ability to estimate the passage of thirty seconds. While undergoing the test, the police will look for signs of eyelid, leg, or body tremors. The muscle tone also matters, and the police will check if your muscles are more flaccid or rigid than normal. The officers will consider your overall ability to follow instructions. If you act unusually or if you produce unusual sounds when carrying out the exercise, it may serve as an indication of intoxication.
Finger Count Field Sobriety Test
While administering this test, the officers may tell you to put one hand forward with the palm facing upward. The officer then requests you to have the top of your thumb separately touching the tip of your index, middle, ring, and little finger. While touching the finger, the police will require you to count aloud, depending on the relationship of each finger with the thumb.
After completing the counting process, the police may request you to reverse the process while still observing you. The police will determine if you can correctly follow instructions. The police will also weigh your ability to touch your fingers separately and the ability to follow the right sequence. Are you able to start or to stop the test as instructed? Do you have the ability to perform the correct number of sets?
Accuracy of Field Sobriety Tests
The accuracy of field sobriety tests depends on several factors. One of the factors that influence the accuracy of the result is the mode of administration. Results should be administered in a prescribed and standardized manner. To assess the performance of the driver, the officer should use standardized clues. The officers should also adopt standardized criteria while interpreting the performance in field sobriety tests. Changing any of the elements mentioned may affect the credibility and validity of the field sobriety tests.
Certain field conditions may affect the results of field sobriety tests. The presence of adverse weather conditions may make it hard to perform field sobriety tests. The police have to make certain conditions suitable for testing; however, some police do not abide by these conditions.
When administering field sobriety tests, the police should ensure that the driver is not in danger of falling. Therefore, the police should conduct the surfaces on a surface that is hard, level, and dry. The surface should not be slippery, as this may affect the performance of the suspect. The officer also has to ensure that there is adequate room for the suspect to perform and complete the field sobriety test. If the police are not able to provide proper testing conditions to the suspect, they should consider moving the suspect to a better location before administering the test.
The testing venue should have adequate lighting for the proper administration of field sobriety tests. When undergoing the testing, the driver should be able to see both the officer, and the ground below in a clear manner. In some instances, the police may use a flashlight to illuminate the ground if the light is not adequate. If the police administer the field sobriety tests in total darkness, even sober people may have challenges completing the tests.
The driver under examination should also be able to hear the police officers clearly while undergoing the testing. The suspect may not be able to perform well if he is surrounded by the sounds of sirens and other disruptive noises during the exercise. If the venue of the tests is noisy, the officers should move the suspect to an ideal location.
Refusing to Take Field Sobriety Tests
You may be wondering whether you can refuse to take the field sobriety tests; the answer is yes. In the state of California, you will not face any legal penalty for refusing to take a field sobriety test. If the police suggest that you undertake the tests, you have a right to decline the request respectfully. However, it is important to note that refusing to take a field sobriety test does not protect you from a DUI arrest. The field sobriety tests are only a tool to help the officer decide whether you are under the influence.
In most cases, before the officer administers the FST tests, he/she will already have made up his/her mind about you. Therefore, in most cases, field sobriety tests are doomed for failure, and they will only act as a way of helping the arresting officer gather evidence against you. Most attorneys advise drivers to refuse the field sobriety tests.
It is important to note that while there are no penalties for refusing a field sobriety test, it is not the case with other sobriety tests like chemical tests. If you refuse to take a chemical test, you will face some consequences. For instance, chemical test refusal may lead to suspension of your driver's license. You will also allow the police to arrest you for refusing to undergo a chemical test. Therefore, while you may decline a field sobriety test without any consequences, it is advisable to submit to a chemical sobriety test.
Challenging the Results of Field Sobriety Tests
Even if the authorities claim that field sobriety tests are accurate, the tests are not accurate in most instances. Even if the police administer the tests under ideal conditions, the results may still not be accurate. With the help of an experienced DUI attorney, you can challenge the results of the FSTs and assert that the results do not indicate impairment.
Other than intoxication, certain physical and mental conditions may make a driver appear intoxicated, even when the driver is sober. If a driver is above the age of 60, he or she may perform poorly in the field sobriety test. A driver may also perform poorly in the test if he is ill at the time of the testing. You may not perform well in the field sobriety tests if you happen to have back, leg, and foot problems If you have inner ear problems, you will not hear the instructions from the officer and this may lead to poor performance. If you are in pain or if you are overweight, you may perform poorly in the field sobriety tests.
The movement of the officer may also influence the performance of the driver in the field sobriety tests. An officer should remain motionless while administering field sobriety tests to avoid interfering with the tests. If the officer keeps walking around or exhibiting other forms of disruptive behavior, the results may be dismal. By being restless, the officer affects the ability of the driver to concentrate and follow instructions.
The type of attire you are wearing may affect your performance in the field sobriety tests. If you are wearing dress shoes or high heels, you may not be stable, and this can affect your performance in the tests. Your shoes should not be too tight. Tight pants or beltless jeans, may also compromise your performance in the tests. Any clothing that may affect your ability to move and maneuver while undergoing the test may affect the outcome of the test.
The timing of a field sobriety test may also affect its effectiveness. Certain field sobriety tests measure the impairment of the driver based on his ability to interpret time. The results of the test may be compromised if the officer fails to time the test with a watch and instead uses approximation. If the officer starts or ends the timing of the test incorrectly, the results of the test may not be reliable.
Environmental conditions may also affect the credibility of field sobriety results. For the tests to be effective, the officer should administer them under particular road conditions. If the officer fails to provide the right testing environment, the driver has a right to question the accuracy of the field sobriety tests. Some of the adverse environmental factors that may affect the credibility of field sobriety tests include inclement weather and poor working. The results of the test may not be objective if the road is uneven or if the officer conducts the tests on sidewalk surfaces. When the driver is undergoing the tests, there should be no distraction from spectators, lights, or traffic to avoid affecting the concentration of the driver.
Contact an Experienced Orange County DUI Defense Lawyer Near Me
If you are facing DUI charges in California after failing to perform well in field sobriety tests, you do not have to give up. A good attorney can help you challenge the credibility of the results in court. An attorney will check the conditions under which the police administered the tests and gather enough ground for your defense. If you want an experienced DUI defense attorney in the Orange County area, get in touch with the Orange County DUI Defense Lawyer at 714-820-9592 and speak to one of our attorneys today.