When someone is stopped on suspicion of drunk driving, the officer will most likely ask you to perform several field sobriety tests to determine whether alcohol has impaired your ability to drive. Some common field sobriety tests are:
- Alcohol / Horizontal Gaze Nystagmus: Here, the officer will hold a pen or flashlight about 12 inches from the driver’s face and ask the driver to watch the pen as he moves it from side-to-side. The officer is looking for an involuntary jerking of the eyeball when the pen is as far to the side as possible. Supposedly, the higher the driver’s blood alcohol content, the more the eyeball will jerk.
- Standing on one foot while counting: The driver will stand on one foot, hands at his side, with the other foot extended. The officer may ask the driver to count at the same time.
- Walking an imaginary line heel-to-toe: Here, the driver must walk a straight line, touching the heel of one foot to the toe of the other. The officer may simultaneously give a separate instruction to walk 10 steps forward, turn and then 9 steps back to the starting position, all heel-to-toe.
- Finger-to-nose: With eyes closed and arms extended, the driver will be instructed to touch their nose with an index finger.
- Alternate clapping: Here, the officer asks the driver to clap the palms of his hands together, then the backs of his hands together, while simultaneously counting.
- Recite the alphabet: The officer asks the driver to recite the alphabet, either in its entirety or a portion of it.
- Count backwards: Here, the officer will ask the driver to count backwards from a specified number.
- Fingers-to-thumb: This test requires the driver to touch a specified finger to their thumb at the officer’s command.
Do I Have to Submit to a Field Sobriety Test?
No. Field sobriety tests are voluntary. After the police officer has pulled over the driver and has asked the driver to submit to a field sobriety test, the driver has the right to refuse the test. Police officers usually do not tell the driver that they can refuse the test. However, if the police officer believes that the driver is under the influence and impaired to drive, the officer may arrest the driver even if the driver declines the field sobriety test. Many states, however, require the driver to submit to a chemical test after the arrest.
Even if a driver takes the field sobriety test and the police officer states that the driver failed the test, the driver has access to the results of the test after the arrest and can challenge the validity of the tests in court. Refusal of a chemical test after the arrest will result in suspension of your driver’s license and enhanced penalties. Under California law, a police officer may force the driver to submit a chemical test after the arrest.
Remember, a driver may refuse any chemical or field sobriety test before the arrest, but once arrested and taken down to the police station, the driver must submit one kind of chemical test.
Are Field Sobriety Tests Reliable?
These tests are a tool to help the officer determine whether or not there is cause to arrest a driver, and, therefore, they are extremely subjective. Often times, these tests are not required and will very rarely help a driver’s case. Furthermore, if a driver has a physical condition affecting his ability to perform these tests, such as poor equilibrium, bad back, or a difficulty walking, it will affect the officer’s ability to make an accurate determination. If a driver suffers from one of these conditions and is going to perform field sobriety tests, they should inform the officer of the issues before taking the tests.
Once arrested for a DUI, the defendant should try to challenge the validity of the tests in court. It is important to remember that police routinely videotape stops, so it is likely that the field sobriety test will also be on tape.
Furthermore, several field sobriety tests are extremely inaccurate. For instance, the Alcohol / Horizontal Gaze Nystagmus test is considered so unreliable that its results are usually excluded from evidence.
Can a Field Sobriety Test Be Challenged?
After the police have arrested the driver and have stated that the driver has failed the field sobriety test, the driver has the right to challenge the validity of the test in court. Field sobriety tests are subjective exercises that are designed to test the driver’s attention and motor skills abilities. Some people have difficulty doing these tests even under normal circumstances when they are not impaired. Many fail the test because they are simply nervous or under a lot of stress during the situation. An experienced DUI defense attorney can challenge the validity of the test and put each procedure that the officer has conducted to a test.
Can I Consult with a Lawyer Before Submitting to a Field Sobriety Test?
Many states allow the driver to consult with an attorney before submitting to a field sobriety test. If, however, you have been taken into custody because the police suspected you are impaired, you must submit a chemical test and will not be allowed to consult with an attorney before submitting the chemical test. You would still have the right to remain silent and do not have to answer any questions asked by the officer, but the chemical test after the arrest is mandatory for procedural purposes.
Do I Need a Lawyer?
If you are arrested for drunk driving (DUI or DWI), you should speak to a DUI/DWI lawyer immediately to learn more about your rights, your defenses, and what you can expect as your case moves through the criminal justice system.