Should I take the Roadside Field Sobriety
Tests Or Refuse Them?
A driver who refuses the field sobriety tests, places the police officer
in the difficult position of deciding whether to then arrest him or
her based on what evidence he has observed so far. (i.e. driving, speech,
balance, dexterity). If you smell of alcohol and display any other signs
of impairment, your arrest is almost a certainty if you refuse the field
sobriety tests. The arrest might be avoided if you pass the test. However,
these tests can sometimes be difficult to perform even if completely
sober. (i.e. being over weight, cold, elderly, nervous, or suffering
from a physical disability could substantially impair your performance).
You should promptly tell the officer about any such problem.
Field sobriety tests are more often than not video-taped by law enforcement
in Denton County. These tapes are critical evidence effecting each case.
A person who looks good performing field sobriety tests on camera and
then subsequently refuses the breath test, can sometimes be a good candidate
for a reduction to a "Obstruction of Highway" offense. (Depending on
the other facts of his case.) On the other hand, the old expression: "a
picture is worth a thousand words" can not be truer when related to
a DWI prosecution. The obvious reason is, that a person who does look
impaired by alcohol or drugs on the video is often convicted of DWI,
despite his or her subsequent refusal to submit to the intoxilyzer.
Were The Field Sobriety Tests Properly Administered in Your Case?
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Law Enforcement's Field Sobriety Testing
Manual:
The following information represents a portion
of the manual used by police officers in their administration of roadside
field sobriety tests. Officers typically take a course taught by a National
Highway Traffic Safety Administration (NHTSA) Instructor to learn the
proper administration of the tests.
Standardized Field Sobriety Testing
The Standardized Field Sobriety Test (SFST) is a battery of three
tests administered and evaluated in a standardized manner to obtain
validated indicators of impairment and establish probable cause for
arrest. These tests were developed as a result of research sponsored
by the National Highway Traffic Safety Administration (NHTSA) and conducted
by the Southern California Research Institute. A formal program of training
was developed and is available through NHTSA to help police officers
become more skillful at detecting DWI suspects, describing the behavior
of these suspects, and presenting effective testimony in court. Formal
administration and accreditation of the program is provided through
International Association of Chiefs of Police (IACP). The three tests
of the SFST are:
- the horizontal gaze nystagmus (HGN)
- the walk-and-turn
- the one-leg stand
These tests are administered systematically and are evaluated according
to measured responses of the suspect.
HGN Testing
Horizontal gaze nystagmus is an involuntary jerking of the eyeball
which occurs naturally as the eyes gaze to the side. Under normal circumstances,
nystagmus occurs when the eyes are rotated at high peripheral angles.
However, when a person is impaired by alcohol, nystagmus is exaggerated
and may occur at lesser angles. An alcohol-impaired person will also
often have difficulty smoothly tracking a moving object. In the HGN
test, the officer observes the eyes of a suspect as the suspect follows
a slowly moving object such as a pen or small flashlight, horizontally
with his eyes. The examiner looks for three indicators of impairment
in each eye: if the eye cannot follow a moving object smoothly, if jerking
is distinct when the eye is at maximum deviation, and if the angle of
onset of jerking is within 45 degrees of center. If, between the two
eyes, four or more clues appear, the suspect likely has a BAC of 0.10
or greater. NHTSA research indicates that this test allows proper classification
of approximately 77 percent of suspects. HGN may also indicate consumption
of seizure medications, phencyclidine, a variety of inhalants, barbiturates,
and other depressants.
Divided Attention Testing
The walk-and-turn test and one-leg stand test are "divided attention" tests
that are easily performed by most sober people. They require a suspect
to listen to and follow instructions while performing simple physical
movements. Impaired persons have difficulty with tasks requiring their
attention to be divided between simple mental and physical exercises.
In the walk-and-turn test, the subject is directed to take nine steps,
heel-to-toe, along a straight line. After taking the steps, the suspect
must turn on one foot and return in the same manner in the opposite
direction. The examiner looks for seven indicators of impairment: if
the suspect cannot keep balance while listening to the instructions,
begins before the instructions are finished, stops while walking to
regain balance, does not touch heel-to-toe, uses arms to balance, loses
balance while turning, or takes an incorrect number of steps. NHTSA
research indicates that 68 percent of individuals who exhibit two or
more indicators in the performance of the test will have a BAC of 0.10
or greater. In the one-leg stand test, the suspect is instructed to
stand with one foot approximately six inches off the ground and count
aloud by thousands (One thousand-one, one thousand-two, etc.) until
told to put the foot down. The officer times the subject for a 30 seconds.
The officer looks for four indicators of impairment, including swaying
while balancing, using arms to balance, hopping to maintain balance,
and putting the foot down. NHTSA research indicates that 65 percent
of individuals who exhibit two or more such indicators in the performance
of the test will have a BAC of 0.10 of greater. The effectiveness of
SFST in court testimony and evidence depends upon the cumulative total
of impairment indicators provided by the three-test battery. The greater
the number of indicators, the more convincing the testimony. Because
SFST is administered according to national standards and is supported
by significant research, it has greater credibility than mere subjective
testimony.
Alternative Testing Methods
Sometimes, an officer will encounter a disabled driver who cannot
perform the SFST. In such cases, some other battery of tests such as
counting aloud, reciting the alphabet, or finger dexterity tests may
be administered. Several appellate court decisions have indicated that,
if you administer a test that requires the subject to respond orally
in other than a routine information-giving fashion, such as requiring
them to indicate the date of their sixth birthday, and if they are in
custody at the time, you should administer the Miranda warning first,
because you are seeking information from them that is testimonial or
communicative in nature.