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.

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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.