We’ve all seen it. Usually while we are driving home at night. Police lights are glaringly flashing on the edge of the road while some poor shmuck is standing outside of his car performing strange physical maneuvers on command while the officers closely observe them with flashlights. This person is most likely under a DUI investigation and is performing Field Sobriety Exercises.
The National Highway Traffic Safety Administration (NHTSA)Â created the Standardized Field Sobriety Test (SFST) to determine if a driver is impaired. There are three parts to the test: 1) The Horizontal Gaze Nystagmus (HGN); 2) The Walk & Turn; and 3) The One-Leg Stand. For those who are physically unable to perform these tests because of a disability, injury, or age; alternative, non-standardized tests, such as the Rhomberg Balance Test, the Finger to Nose, or the Hand Pat Test. For these, unlike the first three, police are not required to follow specific guidelines or standards when administering these exercises.
Horizontal Gaze Nystagmus (HGN)
This is the test being done when the officer is standing in front of the suspect shining a small pen light toward them and moving it from side to side. It is almost always the first test administered during a DUI investigation. Horizontal Gaze Nystagmus is the involuntary jerking of one’s eyeball that occurs when the eyes move to the side. Research shows that when someone is impaired by alcohol, this jerking is exaggerated and may happen at less dramatic angles. The officer with the light is looking for three indicators of impairment: 1) Whether the eye can follow the moving object smoothly; 2) Whether the eye jerking is distinct and sustained when the eye is at maximum deviation; or 3) If the angle of the onset jerking happens before the eye is turned to a 45-degree angle. By itself, the HGN is not especially useful to the prosecution because it is complicated for a jury to grasp and it can only be introduced if the examining officer is qualified to explain it to a jury.
The Walk & Turn
It is a common misconception that the Walk & Turn (W&T) only requires the suspected impaired driver to walk a straight line. And while the test does require the suspect to walk a straight line, it is more complex. First the subject is taken to a straight line and told to get into a position of facing forward with one foot on the line and their arms down to their side. While holding this position, the officer goes over the directions. The officer is giving directions, but also observing to see if the suspect can hold their position while listening to the instructions. The instructions call for the suspect to take nine steps on a straight line, touching their heel to their toe with each step. After taking the ninth step, the suspect is asked to pivot on one foot, making several small steps to turn around and walk back down the line in the same manner. The examiner is looking for a number of impairment indicators such as whether the suspect begins before being told to start, touches their heel to their toe, uses their arms for balance, steps off the line, takes the wrong number of steps, or makes an improper turn. A 1998 study shows that 79% of those who show just two of these indicators will have a BAC of 0.08 or more. If the suspect has any kind of injury, they should make it noticeably clear to the officer.
The One Leg Stand
The One Leg Stand (OLS) is usually the third standardized test administered. The officer will instruct the suspect to stand with one foot approximately six inches off the ground, while counting aloud (one thousand-one, one thousand-two, etc.) until told to put their foot down. Most examiners will instruct the suspect to keep their leg straight without bending the knee and to look straight ahead and not down at their foot. The officer will time the suspect for 30 seconds and observe impairment indicators. The indicators that the examiner is looking for are: Swaying, using arms to balance, hopping, and putting foot down. If the suspect has any kind of injury, they should make it noticeably clear to the officer.
It is important to remember that these tests are not pass/fail. They are a subjective evaluation by the examiner, who will decide whether to arrest the suspect based on the totality of the circumstances. This means that police will consider your driving pattern (if any), your condition when contact was made, your ability to communicate, your answers to questions about drinking, and your performance on the SFST’s. Other things may be considered depending on each unique situation.
Contact Hendry and Parker about Sobriety Tests and DUIs
The SFST’s are only effective if the subject is not suffering from injuries. For example, if an officer conducts the walk and turn with a suspect who has a chronic knee injury, it is likely that the suspect will not perform well due to the knee injury. That is why it is especially important that the suspect be clear from the beginning that he/she has an injury, disability, or pain that could cause them to perform poorly on physical tests. DUI investigations are almost always being recorded by a dash camera and/or a vest camera. These cameras include audio from a microphone that is normally clipped to the investigating officer. If you tell the officer, early and often, that you suffer from injuries – it will be captured on the recording and can be used later by your DUI attorney.
If you have been arrested for a DUI, you will need an experienced DUI defense attorney with the experienced needed to navigate this complex area of law. Call Hendry & Parker for a free consultation today.