If you are pulled over for suspicion of driving under the influence of alcohol, you may be asked to complete a standardized field sobriety test. This can raise many questions, such as:
- What are standardized field sobriety tests?
- Are these tests reliable?
- Can you refuse field sobriety tests?
- What happens if you fail a field sobriety test?
- Can you challenge the results of a field sobriety test?
If you are concerned about DUI charges following a field sobriety test or how to respond if a police officer asks you to take one, you can contact Fassio Law to talk to a skilled attorney.
What Are Field Sobriety Tests?
Field sobriety tests (FSTs) are a battery of tests designed to help law enforcement determine whether a person suspected of drinking and driving is indeed intoxicated. These tests include:
The Horizontal Gaze Nystagmus Test
When a person has alcohol in their nervous system, it can affect their vision, resulting in involuntary eye movements when the eyes look in a certain direction. The horizontal gaze nystagmus (HGN) test, or the pen test, is designed to detect involuntary eye jerking associated with alcohol impairment. Police officers conducting this type of test ask a suspect to focus and track a pen as they move it at a certain speed and distance.
The Walk-and-Turn Test
The walk-and-turn test measures your balance and ability to follow instructions. It is considered a divided attention test. During this test, you must do the following:
- Walk in a straight line
- Take nine steps
- Turn
- Return nine steps
You must keep your hands at your side during the test. If you put your arms out to steady yourself, this can lead to a failure. Law enforcement officers look for indications of intoxication, such as stepping off the line, raising your arms more than six inches above your body, your inability to count the steps accurately, and uneasy turning.
The One-Leg Stand Test
This test is also considered a divided attention test. You will be asked to raise your foot up, keep your hands at your side, and count aloud until you reach 30 seconds or the officer asks you to stop. During the test, law enforcement personnel look to see if you hop, sway, or put your foot down.
While there are other types of field sobriety tests that help test for intoxication, these three tests are the only ones recognized by the National Highway Traffic Safety Administration and taught as part of standardized field sobriety tests.
If a suspect fails field sobriety tests, this may give law enforcement officers reasonable suspicion to continue to detain a suspect and administer a roadside breathalyzer test or probable cause to place them under arrest.
Are Field Sobriety Tests Accurate?
So, if a police officer conducts a field sobriety test, is that the end of it for you? Is this enough to convict you? Well, it depends.
Field sobriety tests are not always accurate and are not necessarily conclusive evidence of impairment. Field sobriety test results can be challenged in court.
When the law enforcement officer is properly trained and administers the test according to recognized protocol, the NHTSA states that the tests are accurate to the following extents:
- Horizontal gaze nystagmus test: 77%
- Walk and turn test: 68%
- One leg stand: 65%
The tests are more reliable when they are aggregated. Criminal defense attorneys often argue and have expert witnesses testify about lower reliability. Technically, people who are completely sober and have had no alcohol can “fail” these tests. Various factors can affect the reliability of these tests or cause people to fail even when they are not impaired by alcohol, such as:
- Whether the officer is properly trained
- The incline and condition of the roadway where the test is conducted
- The shoes the person being tested is wearing
- Bright lights, headlights from other vehicles, or police strobe lights
- Inclement weather
- Slippery surfaces
- The suspect’s age
- Various medical conditions, including diabetes, back problems, inner ear or middle ear problems, or recent head injuries
- Whether the person being tested is 50 pounds or more overweight
- The person’s ability to understand the English language
- The suspect’s nervousness
- Whether the suspect is sick or tired
- Lack of coordination
Understanding these factors and their challenges can be the key to defending yourself against criminal charges.
Field Sobriety Tests: Are They Designed for Failure?
Another concern a DUI defense lawyer may raise in cases involving field sobriety tests is that they are designed to find impairment, not lack of impairment. A law enforcement officer who pulls a person over already suspects the person has done something wrong. When conducting FSTs, they seek evidence to confirm their suspicions.
Common Mistakes Police Officers Make During FSTs
Police officers can make various mistakes while conducting field sobriety tests, such as:
- Asking a suspect to take the test when they have factors that can negatively impact their results, such as being older, overweight, or a non-English speaker
- Keeping their lights on while administering the test
- Conducting the test during adverse weather conditions
- Not following NHTSA protocols for completing the test correctly
- Not providing clear instructions
- Giving the wrong instructions
- Not properly observing the suspect during the test
Your criminal defense lawyer can challenge unreliable test results and cross-examine the police officer during a trial.
How FSTs Can Impact a DUI Charge
Failed FSTs can result in law enforcement having sufficient grounds to complete a roadside breath test, which can be used as evidence of your impairment. They can also provide legal justification for an arrest. The results can be shared and used as evidence in court to try to convict you.
What Happens If You Fail a Field Sobriety Test?
If you fail an FST, police may arrest you. They may conduct further testing and book you on criminal charges. If you are charged, you should immediately contact a criminal defense lawyer for legal counsel.
Can You Refuse a Field Sobriety Test in Oklahoma?
Many people have heard of Oklahoma’s implied consent law and assume that they cannot refuse any test police officers conduct to determine if a driver is impaired if they want to avoid losing their driver’s license. However, the implied consent law applies to blood or breath tests, not field sobriety tests. You have the right to refuse a field sobriety test and to refuse to answer any of the officer’s questions beyond providing your name, driver’s license, and registration.
Given the many problems that can arise during field sobriety testing, the potential for unreliable results, and the likelihood of involving confirmation bias, you very well might wish to refuse testing. Additionally, FSTs are considered pre-arrest screening and are used to help police gather sufficient evidence to conduct further testing or arrest you, and why would you want to do that?
Defending Against Field Sobriety Test Results in Court
Defense attorneys can challenge field sobriety tests in various ways. They could seek to suppress evidence if the test was not completed according to protocol or violated your rights. If this is not possible, your lawyer can call the validity of the test into question. They can conduct a cross-examination of the officer, asking about their:
- Training
- Experience
- Familiarity with NHTSA testing protocols
- Knowledge of research into the problems associated with FSTs
- Personal bias
Your defense attorney can also present other evidence or challenge the prosecution’s case against you.
The Role of Dashcam and Bodycam Footage in FST Cases
Sometimes, dashcam and bodycam footage can help provide additional support to your case and show that law enforcement was lying or exaggerating. For example, if the law enforcement officer said you were swaying or slurring your speech, video footage may show that you were balanced and speaking coherently. Your criminal defense attorney can demand this evidence and determine the best way to present it.
What to Do If You Were Arrested After Failing a Field Sobriety Test
If you failed a field sobriety test and are worried about being convicted of DUI, you need the help of an experienced drunk driving defense lawyer. At Fassio Law, we know that being charged with a crime does not make you a criminal.
Our firm was founded by a former prosecutor, so we know how the other side builds their case and potential weaknesses to look for. We provide legal services and criminal defense throughout Edmond, El Reno, Mustang, Norman, Oklahoma City, and Yukon. We can lodge a strong defense on your behalf and challenge unreliable field sobriety tests. Contact us today to receive the quality criminal defense you need and deserve during this critical time.
