Why Sober Drivers Can Fail Field Sobriety Tests

why sober people fail field sobriety tests

In our last post, we discussed the Horizontal Gaze Nystagmus (HGN) test. That’s just the first of three standardized field sobriety tests that the National Highway Traffic Safety Administration (NHTSA) uses to determine if someone is under the influence of alcohol.

In this post, we’ll look at two more standardized field sobriety tests: the Walk and Turn and the One Leg Stand.

The Walk and Turn Test

This is a divided attention field sobriety test, which means that a person under the influence of alcohol is not supposed to be able to perform the test correctly, because alcohol intoxication will not allow a person to divide their attention.

Original research revealed that this test, when properly administered and scored, was only 68% accurate in determining if someone was under the influence of alcohol. That means it was incorrect 32% of the time. Yes, in ideal circumstances, when performed exactly as instructed, this test was wrong 1/3 of the time. Not a very good indicator of whether someone is actually under the influence.

Several problems exist with the Walk and Turn test, including the fact that it is nearly impossible to perform correctly the first time, sober or not. Here’s how the test works:

The officer will ask you to stand in an uncomfortable position while you listen to the instructions for what to do. If you break that stance, it is a “clue” that you are impaired. While holding a balancing stance, the officer will instruct you to perform many, many tasks. What’s more, officers are taught to give these instructions in rapid order, which makes them hard to follow and remember. Any mistakes you make are additional “clues” that you are impaired by alcohol.  

Here’s what the officer will ask you to do:walk and turn sobriety test

  • Walk the line, heel to toe, for 9 steps,
  • Turn in a specific manner,
  • Keep your arms at your sides,
  • Look at your feet,
  • Count out loud,
  • Don’t stop walking,
  • Count in the proper order,
  • Keep your feet on the line, and
  • Return 9 heel to toe steps to the start.

Can you remember all that? The reality is almost nobody hearing these instructions for the first time can remember everything and do it exactly right. There is just too much information in this test.

Now imagine trying to do it all under the stress of having just been pulled over and accused of driving under the influence.

To make it even harder, police officers also won’t tell you what they are looking for. Even worse, some officers will tell you what not to do, which can get confusing when trying to remember all the instructions. During the Walk and Turn test, the officer will be watching for a total of 8 clues to determine if you are under the influence.

woman taking field sobriety test

For example: The picture above is a woman performing the Walk and Turn test. Most tests are now recorded on video, but in this still picture, she is currently showing two “clues” of intoxication:

  • Her heel is not touching her toe, and
  • Her arms are raised from her side.

She is also wearing heels that are over 2” in length, so she should have also been offered the opportunity to take her shoes off to perform the test. She should also not be holding her purse during the test. A police officer who has your best interests in mind, will consider those factors, and give you every opportunity to pass the test and prove you are not intoxicated.

The One Leg Stand

one leg stand field sobriety testThe third and last standardized test in the NHTSA battery of field sobriety testing is the One Leg Stand or OLS test.

This is another divided attention test. Original research revealed that this test, when properly administered and scored, was only 65% accurate in determining if someone was under the influence of alcohol. If you remember, the Walk and Turn test was only 68% accurate. Thus, the OLS test is the least accurate field sobriety test of the three. It’s incorrect 35% of the time, which means, in ideal circumstances, when performed exactly as instructed, this test was wrong more than 1/3 of the time.

There is also a specific category of people who were not represented in the scientific studies behind this test. Therefore, the One Leg Stand test doesn’t have legitimate scientific support for some of the population.

The test is essentially very basic, but very difficult if you don’t have great balance. Again, the officer will give you rapid fire instructions on what to do. You are expected to do everything as instructed. For example, if you “sway” for balance, the officer will take that as a clue you are intoxicated.

Give it a try right now:

  • Raise either foot approximately 6” off the ground, keeping the bottom of the foot parallel to the ground.
  • While looking at your foot, keep both legs straight and arms at your sides.
  • With the raised foot in the air, count out loud from 1 to 30, saying, “One thousand one, one thousand two, one thousand three…” and so on, until the officer times you for 30 seconds.  

There are a total of 4 clues an officer is looking for during this test to determine if you are under the influence, including raising of the arms, swaying, hopping, and putting the raised foot down.

Problems With Field Sobriety Tests

court gavel trialThere are many problems with these field sobriety tests. The science behind them is flawed, and they are designed to be very difficult — even for someone who is sober.

In fact, police are specifically taught that even sober people may have difficulty with these tests.

The majority of police officers will not give you proper instructions before either test. And most officers who try to demonstrate a test to you will actually show “clues” of intoxication themselves.

However, officers are also taught “cheats” that allow them to pass the tests more easily if they are asked to demonstrate in court. They don’t afford that luxury to anyone accused of DUI.

Only an experienced attorney who knows the small complexities of these tests, the scientific studies behind them, and how the officers are trained can actually use them to your advantage if you are accused.

What To Do If You’re Accused

How much of the information in this post did you already know?

Unfortunately, many DUI defense attorneys don’t know it either. This is exactly why, if you or someone you know wants premier DUI defense, you must seek an attorney who knows what he is talking about.

I personally have dedicated myself to becoming the most advanced DUI defense attorney I can be.

I have taken specialized training, exactly the same training law enforcement takes, which teaches the NHTSA manuals on law enforcement DUI detection in the United States. This specific knowledge is key to knowing how the officers were trained, what they are looking for, and how to catch them when they mess up, which they do.

judnich law team missoula

For example, in a recent case an officer attempted to administer the Walk and Turn test upon one of my clients. I was able to establish that, because the instruction and administration of this test was so incompetent, the test results must be excluded from evidence.

Bringing to light an officer’s incompetence in administering and scoring these tests at trial is another great way to show that, just because someone is accused of DUI, does not mean they actually committed the crime, nor that the officer collected evidence in the correct way.

If you want premier DUI defense for a DUI charge, give me a call and I will personally discuss your case with you and see if our representation can help you out.

Martin Judnich, Esq.

President, Judnich Law Office


Photos: Scott L, SanDiego DUIAttorney, SanDiego DUIAttorney, Beth Cortez-Neavel

What Law Enforcement Doesn’t Want You to Know About DUI Investigations


dui investigations what law enforcement doesn't want you to know

Photo: ODT on Flickr

Most people believe that pretty much everyone who gets arrested for DUI is obviously guilty, and that law enforcement has done a good thing by getting them off the road.

But did you know that not everyone arrested for a DUI is actually guilty?

That surprises a lot of people, but it’s true. In this post, I’ll explain why innocent people sometimes get arrested for DUIs and what to do if it happens to you.

How Do Innocent People Get Arrested for DUIs?

Getting arrested can be a scary and unpleasant experience, no matter what the circumstances. So how can can you be accused of a DUI when you’re not driving drunk? It happens for two basic reasons:

1. There’s no penalty for arresting an innocent person.

What law enforcement doesn’t want you to know is that police officers usually don’t know for sure whether someone is really driving under the influence. They’re usually making a semi-educated guess. Police officers suffer no consequence for arresting someone who turns out to be innocent, so they arrest them anyway.

man driving red car

2. Field sobriety tests aren’t always fair.

A while back, I wrote about why you should never take field sobriety tests. This is one of the reasons.

Every law enforcement officer in America is supposed to have been trained and updated on the National Highway Traffic Safety Administration (NHTSA) standards and manuals for DUI investigation and detection. These manuals were developed after several studies concluded that psychophysical testing for people suspected of driving under the influence needed to be standardized.

Law enforcement doesn’t want you to know that, statistically, their tests are flawed, and the vast majority of the time they do not administer or score the tests as they are supposed to, which invalidates all of the science and statistics behind them.

What’s Wrong With Field Sobriety Tests?

There are currently three standardized field sobriety tests that the NHTSA has deemed somewhat accurate indicators of a person being under the influence of alcohol:

  1. Horizontal Gaze Nystagmus (HGN)driving highway
  2. Walk-and-Turn (WAT)
  3. and One-Leg Stand (OLS)

Even when administered correctly, these tests are not completely accurate. Even under ideal circumstances, innocent people can be determined as likely being under the influence.

Let’s look at the first test, the Horizontal Gaze Nystagmus, as an example. It looks for an involuntary jerking of the eye caused by alcohol consumption. Problem is, this jerking can also be caused by over 40 other things other than alcohol, including caffeine intake, stress, and wind.

Another large problem is that according to several studies, even in ideal circumstances, this test is only 77-88% accurate at detecting someone under the influence. That means, theoretically, as many as 23% of innocent people won’t be able to pass the test. Those are not good odds. 1 out of 4 people may be deemed to be under the influence according to this test, even though they’re not.  

Worst of all, this is the most statistically accurate test of the three, the other two are even less accurate in ideal circumstances.

What Should You Do?

If you get arrested on suspicion of a DUI, and you know you’re not drunk, what should you do? First, you should know that you can’t really “fail” field sobriety tests. What I mean by that is that the tests aren’t the final end-all determination of whether you were driving under the influence or not.

I will continue to write more about these tests in future blog posts to help everyone understand why, despite law enforcement accusing you of driving under the influence, the chances that you are innocent and wrongfully accused are greater than you think.

If this happens to you, don’t panic. The best thing you can do is not answer any further questions and hire a lawyer as soon as possible.

If you have been arrested for a DUI in Montana, give us a call to discuss your case and how you can fight it.

What Happens to My Driver’s License if I’m Arrested for DUI in Montana?

Drivers License and DUI Montana

Photo: Dennis Yang on Flickr

As a lawyer in Montana, I’m frequently asked questions about how a DUI arrest or conviction can affect a person’s driver’s license. Not only is this question very common, but it’s a very misunderstood area of the law, especially among the general public.

That’s why I want to make sure you understand the facts about what can happen to your driver’s license if you’re arrested or convicted for DUI in Montana. But before I go any further, there are 2 things you should know:

1. Did You Refuse a Breath or Sobriety Test?

If you refused a breath or sobriety test when you were stopped by the police, your driver’s license will likely be suspended for 6 months. Your suspension will probably begin on the day you refused the test.

This is a civil suspension issued through the Department of Motor Vehicles. This civil suspension is a result of your refusal to take a breath or sobriety test and is completely unrelated to a suspension stemming from a criminal DUI conviction.

2. Were You Convicted of DUI or Related Offense?

If you’ve been convicted of a DUI or related offense, your driver’s license will be subject to a criminal suspension. This is unrelated to any civil suspensions caused by refusing a breath or sobriety test.

So, what’s the difference, and what can you do about them?

Suspension Due to Breath/Blood/Sobriety Test Refusal

Field Sobriety Test

Photo: ODT on Flickr

Let’s start with a suspension due to refusing a sobriety test. As I mentioned earlier, in Montana, if you refuse a breath, blood, or other sobriety test, your license may be suspended as a result of the refusal itself. This is not a criminal punishment, although several cities, including Missoula, have made refusing a breath test a separate misdemeanor crime.

This suspension is a civil administrative suspension. There is only one way to avoid this suspension. A person who has allegedly refused a sobriety test can file a petition in District Court asking the Court to return his or her driver’s license and lift the suspension.

Without an order from the District Court order you can’t get out of a refusal suspension. Once you’ve filed your petition, the burden is on you to prove that either there was not sufficient reason for the police to stop your vehicle, or that you didn’t actually refuse the breath/blood test.

The State of Montana can agree to the reinstatement of your license, or they may require a court hearing to contest your petition. Either way, filing a petition is the only way to even attempt to get your license reinstated if you’ve refused any kind of sobriety test.

It’s also worth noting that DUI defense attorneys in Missoula, Montana will frequently use such a petition as a tool to help negotiate a successful resolution to a DUI arrest for their client.

Suspension Due to DUI Conviction

If you’re convicted of DUI or a related offense, you’ll face a suspension as part of your criminal punishment. Your driver’s license won’t be suspended if you’re only arrested for DUI (unless of course, as I mentioned earlier, you refused a sobriety test). In Montana, to receive a criminal suspension of your driver’s license, you must be convicted of a DUI or a related offense.

The length of the suspension will depend on whether you have any prior DUI convictions. If it’s your first conviction, with the Judge’s approval, you’ll be eligible for a probationary driving permit or an essential driving license. This allows you to drive to work, home, the hospital, the grocery store, or to make any other trips deemed essential by the Judge.

To receive a probationary license, you’ll also need to enroll in a mandatory ACT program to be eligible for this type of license. Currently, in the state of Montana, only convictions for a first DUI offense are eligible for a probationary permit following conviction.

You should also know that there are no options for appealing a suspension of your driver’s license beyond appealing your DUI conviction after trial. In other words:

If you take a plea agreement, you won’t be able to appeal any resulting driver’s license suspension.

Avoiding DUI Conviction & Driver’s License Suspension

Judnich Firm PictureIf you don’t want your driver’s license to get suspended after a DUI arrest, you need to invest in a great DUI defense attorney. Your attorney can start by filing petitions to avoid suspension if you refused a breath or sobriety test. Your lawyer will also work towards a resolution of your case that doesn’t involve a DUI conviction and driver’s license suspension.

Your attorney will be able to navigate complex cases, like those involving multiple refusals of sobriety tests, prior instances of driving with a suspended license, and other traffic crimes that may affect your driver’s license.

Call the Judnich Law Office for a free consultation to discuss your issues in dealing with a driver’s license and DUI related charges today.


Featured Attorney Personal Injury NCDD National College for DUI Defense: Martin W. Judnich

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