Challenging Field Sobriety Tests

When pulled over and suspected of driving while intoxicated (DWI), you may not be sure what to do. The police will ask a multitude of questions and everything will feel as if it’s moving too fast. You may be coerced into answering questions or consenting to tests and before you know it, there will be a mountain of evidence against you. 

When you hire The Wilder Law Firm, you put our 25 years of trial experience to work for you. We will challenge this “evidence” against you, especially the results of Standardized Field Sobriety Tests (SFSTs). I will educate you on what the sobriety tests are and what can affect the validity of the test results. By educating you, I will put you in the best position to help me best defend you. Contact us now at 469-551-8609 so that we can fight for you. 

What are Standardized Field Sobriety Tests? 

Standardized field sobriety tests are divided attention tasks designed to detect when a person is impaired by alcohol. They are not 100% accurate and are very subjective. I have seen officers watch the same person perform the sobriety tests with the officers reporting different results. There are three standardized field sobriety tests:

  • Horizontal Gaze Nystagmus
  • Walk and Turn
  • One Leg Stand

Horizontal Gaze Nystagmus

The Horizontal Gaze Nystagmus (HGN) test measures the amount of jerking (nystagmus) in your eyes as they follow a stimulus side to side. Everyone has nystagmus, but it is normally not visible to the naked eye. When a person consumes alcohol, this jerking will become more visible. The amount of jerking an officer indicates they see is a very subjective opinion. What may be a distinct jerking to one officer may not be distinct to another. We have seen body cam videos that do not show the amount of jerking that an officer describes during their assessment. 

Walk and Turn

During the Walk and Turn test, you are asked to take nine heel-to-toe steps down a line, turn in a specific manner, and take nine heel-to-toe steps back. There are eight total clues an officer looks for and each clue has its own definition so the officer knows specifically what to look for. A major problem with this is that even though there are specific definitions, it is still up to the subjective opinion of the officer if they believe they see a clue. Additionally, officers expect you to be perfect on this.  Anything other than perfection will be taken as a sign of intoxication.

One Leg Stand

During the One Leg Stand test, you are instructed to stand with one leg six inches off the ground with your hands at your sides. You are then instructed to count until the police officer tells you to stop. Again, you are expected to be perfect on this test. Part of the expectation is that you are not permitted to sway when standing on one foot. Any body movement, according to most officers, will be taken as a sign of intoxication. Most officers I have seen are not able to differentiate between natural body movement standing on one foot and alcohol induced swaying.

What are Non Standardized Field Sobriety Tests? 

The following tests are very unreliable when it comes to trying to determine if someone is intoxicated. The National Highway Traffic and Safety Administration (NHTSA) does not even recognize them as being valid tests for sobriety. They do recognize them to be used as a Pre-Exit interview technique. This means these so-called tests should be used when the driver is still in the car to see if there is enough evidence to ask the driver to get out and formally be sobriety tested. These techniques are:

  • Romberg Balance
  • Saying the Alphabet
  • Count Backwards
  • Finger to Nose
  • Finger Count

Romberg Balance

Police administer the Romberg Balance exercise by instructing the driver to stand with their feet together, head tilted back, and eyes closed. The driver must estimate the passage of 30 seconds in their head and when they think 30 seconds has passed, open their eyes, tilt their head forward and say “stop” or “30”. The officer is looking to see if you count too slow or fast in estimating the 30 seconds, and if you are exhibiting any swaying.

Alphabet

When administering this technique, the police officer will ask you to say a portion of the alphabet, such as D as in Doug to W as in Wilder, and not to sing them when doing so. This divides the driver’s attention because the driver must concentrate to begin at an unusual starting point and remember where to stop. You must perform the technique without error and  the officer will pay attention to your speech pattern and cadence at which you say them.

Count Backwards

This technique requires the driver to count out loud 15 or more numbers in reverse order, such at 56 to 27. This divides attention because the driver must continuously concentrate to count backwards while trying to remember where to stop. You must perform this technique without error and the office will also pay attention to the pace at which you count down and your speech pattern.

Finger to Nose

When administering the Finger to Nose technique, the police instruct the driver to touch the tip of their nose with the tip of their index finger, with eyes closed and head tilted back. They are instructed to use their left or right finger by the officer randomly saying “left” or “right.” Officers often will go back and forth a few times, then will say “left” then “left”, seeing if you used your left finger twice or if you are stuck in the back and forth cadence and mistakenly use your right. Further, officers see if you are actually touching the finger tip to the tip of the nose as compared to the side of the nose or with a portion of the finger, as well as any unusual amount of swaying.

Finger Count

When administering the Finger Count technique, the driver is asked to hold one palm out and touch the tip of each finger to the tip of the thumb. They are to do so while counting 1, 2, 3, 4 for one sequence, then to count 4, 3, 2 ,1 for the next sequence. You will start with your index finger being 1 and end with your pinky being 4, then start again with 4 (pinky) and go down to 1 (Index). During this test, they pay attention to your counting up and down correctly as well as touching fingertip to thumb tip each time.

What Can Affect Sobriety Tests

Even under optimal conditions, sobriety tests are not 100% accurate. If you perform a sobriety test and no clues are seen, the police will not take that as a sign of sobriety. In that situation they are trained to testify that the person completed the test as instructed. But anything other than perfection will be taken as a sign of impairment. So what can have a natural and normal affect on your ability to be perfect? A few issues include:

  • Police errors
  • Lack of natural coordination 
  • Medical conditions
  • Environmental conditions
  • Stress and pressure

Police Errors

One of the most obvious issues with the standardized field sobriety tests are police officer errors. There are many ways police officers can make mistakes when administering the standardized field sobriety tests. Leaving out any portion of test instruction could cause a person to make a mistake unknowingly, which would not be fair. We have seen officers have difficulty mastering sobriety tests, as well as mis-grade the test by adding points for assessments that are not actual clues.  

Lack of Natural Coordination

Some people normally struggle with balance. If you are not naturally coordinated, being told to stand on one foot or walk heel-to-toe down a straight line can be challenging whether you are under the influence of alcohol or not. Additionally, wearing high heels can naturally affect your balance. Officers do give you the opportunity to remove heels if they are two inches or higher. If they do not give that opportunity to you, or tell you that your heels could affect your balance, you could exhibit a clue, not due to alcohol. 

Medical Conditions

Issues around pre-existing conditions could impact your test results. For example, if you have an injury, you may not be able to perform the one leg stand test. Additionally, concussions causing nystagmus, neurological disorders, back, leg, or feet problems have the potential of causing you to have difficulty on these tests. 

Environmental Conditions

Environment can have an effect on sobriety tests. For example, wind, rain, or snow can all cause natural difficulty with balance. It may be more difficult to perform the tests under these conditions. Lightening and tests performed too close or too far away from the road may also have a negative impact. 

Stress and Pressure

Being investigated for a DWI is a very stressful experience. The thought of going to jail and losing your job, let alone the embarrassment of being arrested are all racing through your mind. The stress and pressure of this situation could cause you to hesitate in responding to requests which could be a perfectly normal reaction yet taken as a sign of intoxication. It could cause you to confirm with the officer how to complete an exercise while performing or just making sure you are doing it right, and the confirmation request could be taken as a sign that your mental faculties are affected because you did not remember the instructions.

DWI Penalties

If you are charged with a DWI, you need to be aware of what you are up against. The following penalties for a first time DWI include:

Deferred penalties (only available if your alcohol concentration is below a 0.15):

  • A jail sentence for up to 180 days (if ever finally convicted).
  • A fine up to $2,000.
  • An ignition interlock device must be installed in your motor vehicle for a minimum of six months.
  • A probation period to last as much as two years.
  • A successful deferred probation can be used to enhance any subsequent DWI arrest to a DWI 2nd.

Non-Deferred Penalties

  • A 3-180 day jail sentence (if probation is not granted).
  • A fine of as much as $2,000.
  • An additional “Super Fine” of $3,000, independent of the court fine assessed, if your blood alcohol concentration was below 0.15 ($6,000 for a blood alcohol concentration of 0.15 or above).
  • Potential for a 90 day to one year driver license suspension.

Additional penalties:

  • An increase in auto insurance rates.
  • A DWI listed on your permanent criminal record.
  • Immigration issues.
  • Child custody issues.
  • Difficulty obtaining or keeping certain professional licenses.
  • Difficulty obtaining or keeping certain jobs.
  • Difficulty furthering your education.

Our Priority is Protecting You

Being investigated for DWI is a very overwhelming experience and one that you are not prepared for. Every case is different and there are many defenses when it comes to a DWI charge. It takes years of experience and training to learn how to most effectively use these defenses in the most effective way for your client. At The Wilder Law Firm, we will always have your best interests in mind and will thoroughly prepare the most effective defense for you. Contact us at 469-551-8609 and we will start defending you today.

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