When the police stop you for a DUI investigation, they first conduct field sobriety tests to determine whether you are driving while intoxicated. These tests are mental and physical exercises an officer will administer before making an arrest. If you perform poorly in these tests, it could indicate that you are driving while under the effects of drugs or alcohol. The police rely on these tests to decide whether or not to arrest you and charge you with DUI.
Though most of these tests are not 100% indicators of intoxication, they are an acceptable way of establishing whether a driver is high on drugs or alcohol. Most of them are unreliable, so the police conduct further tests to determine your BAC and the kinds of drugs in your system after an arrest. You must know what FSTs are, how failing a test could affect your legal situation, and what you can do to defend yourself after a DUI arrest.
Our team of competent DUI attorneys at Koenig Law Office has answers to all your questions regarding FSTs. Contact us for legal guidance and defense if you are arrested for DUI in Bakersfield.
Understanding the Need for Field Sobriety Tests
The law requires drivers to be careful and watchful every time they are on the road. The police can stop you whenever they feel you are not being careful enough on the road. Depending on the way you drive, an officer can start investigating you for DUI immediately after they pull you over. It could be because you have committed a traffic infraction, and the officer is trying to find out what caused you to do so.
The police can stop you randomly at a DUI checkpoint and investigate you for DUI. In that case, the trigger for their suspicion could be how you appear, speak, or smell. An officer could also suspect you of operating a vehicle while intoxicated if they spot an open drink on the driver’s side of the car. That could necessitate FSTs before arrest.
A DUI arrest does not occur until the police have adequate reason to believe that you were driving while intoxicated. That is why officers conduct FSTs before arresting you for DUI. Failing one or more tests could indicate that you are high on drugs or alcohol, necessitating an arrest. But these tests are optional. You can agree to take the FSTs or not. You will not face criminal charges for failing to undergo an FST, but you can face charges if you decline alcohol or drug testing after a DUI arrest.
FSTs cannot be used as proof that you were operating a vehicle while intoxicated with drugs or alcohol. But they give the police probable cause to conduct a DUI arrest. These tests are unreliable because even a sober driver can fail a field sobriety test for reasons other than the fact that they have drugs or alcohol in their system. For example, very few drivers can walk straight on one leg on uneven ground or a dark sidewalk.
The Standardized FSTs
The police administer FSTs if they suspect a driver of drunken or drugged driving. But the protocol the police follow when administering these tests is usually given by NHTSA, a federal body within the Department of Transport. NHTSA has issued a long list of FSTs the police can use to determine whether or not a driver is operating a vehicle while intoxicated. Of all the tests NHTSA has released to the police, three are validated and considered more reliable than the rest. These are the standardized FSTs that are more common and that you will likely undergo when the police stop you on suspicion of drunk driving:
- Horizontal gaze nystagmus, or HGN tests.
- Walk and turn.
- Leg-stand tests.
If these tests are appropriately administered, they can reliably predict a driver’s impairment.
Note: FSTs could be deceptive, even when tested correctly. The police must combine these with chemical tests to establish whether you were driving while intoxicated.
Horizontal Gaze Nystagmus Tests
In this test, the police check for involuntary jerking as you move your eyes to the side. You will be unaware of the unintentional jerking of your eyes, but the officer administering the test will. Thus, it is impossible to falsify the results.
A person can experience several types of nystagmus. Only a few of them result from alcohol consumption. The test police officers administer by the roadside when investigating DUI is one of many HGN tests.
The officer administering the test will require you to follow a stimulus with your eyes as they move it from side to side. The officer will note how your pupil exhibits nystagmus or the unintentional jerking of your eye. If you show a premature onset of the jerking, whereby your eye jerks at an angle of 45 degrees, the conclusion would be that your BAC is pretty high.
The NHTSA gives these tests an 88% reliability rating. It means that HGN will most likely give accurate results when determining whether you have a high BAC.
These are divided attention tests administered to determine how well a driver can concentrate on simultaneous physical and mental tasks. They are also called DUI straight-line tests, nine-step tests, nine-step walk-and-turn, and DUI walk-on-the-line tests. NHTSA has given these tests a 77% reliability rating. It means they can accurately determine whether you operate a vehicle while intoxicated.
When administering a walk-and-turn DUI test, the police require the driver to follow some instructions when performing some physical movements, like the following:
- Pivoting around.
- Making nine steps on an imaginary or real line.
- Making nine steps on the same line.
While you are performing these activities, the police will look for eight indications of impairment. Precisely, the officer would be watching to see whether you would do the following:
- Start the test too soon.
- Keep your balance throughout the instructions.
- Stop in the middle of walking.
- Step out of the line.
- Fail to follow the instructions, for example, not touching heel to toe.
- Use your arms for balance.
- Fail to turn as instructed.
- Make an incorrect number of steps.
The leg-stand tests are also divided attention DUI tests used by the police to determine a driver’s impairment. In the test, the police can ask you to perform the following:
- To raise one foot above the ground, about six inches.
- Hold that position for a few seconds.
- The officer could ask you to count some numbers, say from 1001 to 1030, while in that position.
- To look down for a few minutes at your raised foot.
When performing these exercises, the police will watch out for four indications of impairment. These indications include whether you:
- Using your arms for balance.
- Putting your foot down.
According to the NHTSA, leg stand tests have an 83% reliability rating. If you fail the test, there is a chance that your BAC is high.
The Non-Standard Field Sobriety Tests
Even though NHTSA has only standardized three FSTs, there are several other FSTs that the police routinely use to investigate DUI cases. The issue with non-standardized tests is the lack of adequate evidence to indicate their accuracy in determining a driver’s impairment. Also, the procedure for administering these tests varies from one officer to another. Thus, the accuracy or legitimacy of these tests is questionable.
Here are some of the popular non-standard FSTs used by the police in California:
Hand Pat Tests
An officer can use this to test your divided attention and determine your impairment. In this test, the police will ask you to pat the side of your hand and the side of the other hand while counting. More precisely, you must do the following:
- Extend both hands in front of you, place the palm of the right hand facing up, and then place the left hand on top of the right, with the left hand’s palm facing down. Start by patting the right hand with the left.
- You must rotate the left hand at an angle of 180 degrees and alternate the back of the left hand and palm. The right hand must remain stationary throughout.
- While performing those exercises, you must count out each time your upper hand pats the lower hand.
The police will pay attention to four factors as you perform the test. These factors will help determine your impairment:
- How well do you follow instructions?
- How well do you count?
- How well do you perform the sequence and rotation?
- How soon do you start and stop the test?
It is among the oldest FSTs used by the police to determine a driver’s impairment. When administering the test, an officer can ask you to perform the following actions:
- Touch your nose using your index finger while your eyes remain closed and your head tilts slightly back.
- You must repeat that action at least six times (three times with your right hand and three times with your left hand). The police will tell you which hand goes first for the test.
As you perform the test, the police will look for seven factors indicating a possible impairment. These factors are:
- How well or otherwise you follow instructions.
- How much and in which direction you sway.
- The presence of eyelid, body, or leg tremors.
- Your muscle tone.
- Any unusual sounds or statements you make when conducting the test.
- Your depth perception.
- Whether you miss the nose and touch your face at some point.
Factors Affecting the Credibility of FST Results
Remember that all FSTs are not 100% reliable in establishing a driver’s impairment. Several factors affect their credibility, including adverse weather conditions. Sometimes extreme weather could make it difficult for the police to perform an FST on a driver they suspect of DUI. Officers are required to ensure that weather conditions are conducive before administering the tests. But that does not always happen.
According to the NHTSA, the police must ensure the weather conditions are safe and appropriate before administering the three standardized FSTs. Even though the agency does not have a procedure for administering the non-standard tests, the jury would want to know if they were administered under reasonable and fair conditions. Here are some of the conditions that impact the reliability of FSTs:
The Surface Conditions
The surface under which the driver will be standing must be safe. They should not be at risk of falling. The officer should choose a dry, level, hard, and not slippery surface to conduct the test. The surface should also have enough room for you to complete the tests.
The officer administering the tests should also ensure that the selected area has adequate lighting. You should have a good view of the ground and the officer. If the place is not well-lit, the officer can use a flashlight.
You should also hear the officer’s instructions clearly, with minimal disruptions. The officer can take you to a more conducive place if there are sirens, honking, and other kinds of noise.
Challenging FST Results During The Trial
If you fail a well-administered FST, the police will have a reason to believe you are intoxicated. That will give them probable cause for your DUI arrest. The officer can use your FST results as evidence in court during trial to support the prosecutor’s charges. But remember that even NHTSA claims that FSTs are not 100% accurate in determining a driver’s impairment. They almost always yield false positives, even when administered in the best conditions. That is why you can challenge your FST results to gain the upper hand in the case. A competent DUI attorney can use the following strategies to help your situation:
Mental and/or Physical Conditions Affected Your Results
Your attorney can argue that other factors, besides impairment, caused you to fail the FST. For example, they can bring up your mental and/or physical condition as the reason you performed poorly on the test. Here are some of the mental and physical factors that could have resulted in a false positive in your case:
- You are 60 years or older.
- You are sick or ill.
- You have a back, leg, or foot problem.
- You have inner ear issues.
- You are overweight, weighing 50 pounds more than your ideal weight.
- You were in pain at the time.
- You felt intimidated or nervous.
- You have minor brain damage.
- You have a mental disability that makes it hard to follow instructions.
You Were Distracted by the Officer’s Movements
The officer administering the test must remain motionless throughout the testing period to avoid distracting you. If that was not the case and the officer kept walking around or exhibiting other distractive behaviors, you could use this defense to have your test results thrown out of court.
Your Attire Was Unsuitable for the Tests
Sometimes the way you dress could make it hard for you to perform even the simplest of tasks. Your attorney can argue that your negative performance in the FSTs was because your clothes made it impossible for you to follow the officer’s instructions. For example, walking in a straight line in dress shoes or heels is challenging. Your attire could also affect your performance if your shoes or pants are tight, you wear gloves, or you wear baggy pants or jeans. An aggressive attorney can convince the jury that your clothes inhibited your ability to effectively perform or maneuver the tests.
The Environment was Not Conducive
Remember that the environment can affect the accuracy of FSTs. If you believe that the environment in which you took the tests affected your performance, your attorney can use this defense to compel the judge to dismiss the FST results as evidence in your case.
For example, you could have performed poorly because the place was not well-lit and the officer did not use a flashlight. It could also be because the sidewalk or road was uneven or because too many distractions from spectators, noise, and lights affected your concentration. The judge can dismiss your test results if any of these are true.
Your Lack of Coordination Was Not Caused by Alcohol or Drugs
Most FSts test a driver’s coordination. While a person’s coordination could be affected by drugs and alcohol, several other factors could also impact it. They include medication, sickness, dehydration, stress, exhaustion, and muscle fatigue. A competent DUI attorney can demonstrate that the cause of your poor performance in the FSTs was due to other factors and not because you were driving while intoxicated.
Find an Experienced DUI Attorney Near Me
Did you fail your field sobriety tests in Bakersfield and fear the test results could be used to convict you of DUI?
It is advisable to seek the advice and support of an experienced DUI attorney to understand the credibility of FSTs and your options. A skilled attorney will also seek to understand how the officer administered the tests to determine the reliability of the FST results as evidence in your case. We work closely with our clients at Koenig Law Office to ensure that we have solid evidence to fight their charges and obtain a fair outcome. Contact us at 661-793-7222 to learn more about the credibility of FSTs and our services.