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Field Sobriety Tests

The typical field sobriety test is actually a physical agility exercise, that is completely subjective in nature, to the person critiquing the test. All these tests are completely optional and refusing to take a test will also not affect your driving privileges at the DMV hearing. However, there are two exceptions, the non-agility tests of the breathalyzer or blood sample.

As will be discussed, the three field sobriety tests recognized by NHTSA are the horizontal gaze nystagmus, the walk and turn, and the one leg stand. While the horizontal gaze nystagmus can be more accurate than the other two, there is still an over 20% chance of failure, even if the individual is perfectly sober!

The following will better help explain these tests:

Nystagmus: The officer will position an object (such as a pen) 12 inches away from the driver's face, and move the object from side to side while watching the subject's eyes. The officer is looking for involuntary jerking or trembling of the eyeball. This jerking or trembling may be a sign that the subject has consumed an intoxicant.

Walk and Turn: The subject takes nine heel-to-toe steps along a line, turns, and takes nine heel-to-toe steps back. The officer is looking to see if the accused can keep their balance, follow instructions, begin early, stop during the test, leave space between heel and toe, step off the line, or lose balance while turning. If the ground is uneven, slippery, unstable or otherwise unsuitable, it can make passing the test difficult at best. When these types of conditions are combined with feelings of nervousness or the sense that you are being intimidated, passing is nearly impossible.

The Rhomberg Balance test: The accused assumes a position of attention, closes their eyes, tilts their head back, and estimates 30 seconds. The officer is looking for the inability to stand still or steady, body or eyelid tremors, opening eyes to maintain balance, swaying (either front to back or side to side), muscle tension, or statements made by the accused. The officer is also testing the suspect's internal clock, which will usually be slow in the case of alcohol or depressants, or fast in the case of stimulants.

Finger to Nose: This test requires the suspect to place his or her feet together while standing straight with eyes closed, and bring the index finger to the nose as ordered by the officer. The officer is looking for body sway, body tremors, eyelid tremors, muscle tension, or any statements made by the accused to support a finding of intoxication.

Standing on One Leg: The accused is instructed to stand with heels together, arms at the side, then raise one leg six inches off the ground while counting out loud until the officer allows the accused to stop. The officer is looking for raising of the arms, swaying, hopping, putting the foot down, inability to stand still, body tremors, muscle tension, and any statements made by the accused during the test.

The forgoing are a few of the most common tests. Nevertheless, there are other Field Sobriety Tests such as those that include finger tapping, hand clapping, counting backwards, or reciting the alphabet. These are supposedly tests that are designed to check "divided attention," a critical skill in operating a motor vehicle.

Notwithstanding the forgoing, everyone is different and has different degrees of agility, and police officers judge people differently. What one officer may judge to be an acceptable performance, another may decide to score as failing, and vice versa. Likewise, a tight roper acrobat would perform differently than an 80 year old lady who refuses a wheel chair despite doctor recommendations. Because of this, there are many people who, for many innocent reasons, cannot perform these tests to the officer's satisfaction, and pay the price with a D.U.I. arrest.

Likewise, medical conditions, certain prescription drugs, weight problems, age, or a host of other physical factors can make it difficult for someone who is perfectly sober to pass a field sobriety test. Even the horizontal gaze test can be rendered inaccurate by someone who is taking seizer medication.

We generally recommend refusing to take the forgoing agility tests. Nevertheless, refusing to take a breathalyzer or blood test is different. One of the most dangerous Field Sobriety Tests is the Preliminary Alcohol Screening test, also called the PAS test. This is a portable breath test to determine the presence of alcohol. The officer is supposed to advise the suspect that the test is completely voluntary, but typically does not because of the damaging evidence that can be obtained there from. While it is completely your right to refuse to take that or any other field sobriety test (unless under 21 and then the PAS test is not optional), the blood or breath test will result in automatic license suspension.

If you or a love one you know has recently been involved in a DUI/DWI related situation and taken one of these sobriety tests, the case is still not lost! But do not delay. Time is of the essence and so are an individual's civil liberties!

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