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Why You Should Never Take Field Sobriety Tests

Arrested for a DUI but feel that you passed your field sobriety tests (FST)?

As a private DUI defense lawyer in Missoula, MT I can tell you that almost every DUI client I have had has thought that they have “passed” the field sobriety tests the police administered. Unfortunately, they were wrong. All of them. In this post, I’ll explain the three types of FSTs and why they’re designed to make you fail — even if you’re sober.

What Are Field Sobriety Tests?

FSTs, as we call them, are nationally recognized drills taught to all law enforcement officers capable of arresting someone for a DUI. These vary from state to state somewhat, but overall, the vast majority of the country uses 3 different drills.

The thing about these drills are that they are not pass-or-fail “tests” like you might think. Instead, I call them drills, because law enforcement is trained to put you into a scenario that is intended to make both sober and intoxicated people show “cues” of possible intoxication. No matter what you do on these drills, you can’t pass them. Similarly, you can’t really fail them – although falling over and being utterly unable to stand on your own feet is pretty close.

field sobriety test touch nose police officer

Police officers are supposed to judge these three drills and write down any “cues” that vary from their instructions.

The Horizontal Gaze Nystagmus Drill

The first test is called the HGN or Horizontal Gaze Nystagmus drill. Nystagmus is the medical term for a jumping of the eye. The officers move a stimulus (often a pen, or just a finger) around in front of you. The officer is supposed to look for this jumping of the eye during the drill, because alcohol causes Nystagmus. Police don’t tell you that Nystagmus occurs naturally in people for at least 40 different reasons.

field sobriety test follow pen with your eyes

The other problem is, the test doesn’t really test amount of alcohol, just the presence of jumping that may or may not be caused by alcohol or drugs. If an officer is truthful, they would tell you that the more alcohol consumed, the greater the Nystagmus or jumping is in the eye. So why is there a drill that looks just for jumping, when police are trying tell the amount of alcohol consumed? These drills are intended to give law enforcement some subjective signs of alcohol intoxication – regardless of how flawed the drill is.

The Walk-and-Turn Drill

A second drill is called the Walk-and-Turn drill. This is also considered a “divided attention” drill. Divided attention means that an officer explains the instructions of the drill to you (usually really fast) and you are supposed to memorize the instructions perfectly AND perform the drill perfectly. The theory is if you are intoxicated you can’t listen, retain, and do the drill.

The problem is probably obvious: Even if you’re sober, it’s really hard to memorize rapid-fire instructions and do them perfectly. Plus, if you ask the officer to repeat the instructions, that’s a possible sign of intoxication. (The game seems rigged, right?)

So what do the cops tell you to do? Imagine this: You’ve just been pulled over and pulled out of your car. Cop lights are blaring overhead. An officer is accusing you of a DUI and asking you to place your right foot in front of your left foot, heel to toe, arms at your sides and hold that position. And that’s not even the actual drill! (Of course, if you break that stance, it’s a cue you’re drunk.)

field sobriety test walk the line 

Photo: Artondra Hall

Then the officer will point to a painted line (or ask you to create an imaginary line), then put one foot in front of the other, walk heel-to-toe, do not step off the line, keep your arms at your sides, and count out loud from one to nine as you take each step. After the ninth step, you’re supposed to pivot around your front foot, take short choppy steps, and then return to taking heel-to-toe steps back to the beginning with a total of nine return steps.

Got it? Do you remember every exact instruction from the beginning without going back for reference? Probably not. If you don’t remember them all, they will probably consider you intoxicated.

The One Leg Stand

field sobriety test stand on one leg

The third and usually final drill is referred to as the One Leg Stand. This is another divided attention drill.

After you have walked this line and realize you may be in some trouble, the officer will ask you to do this: Raise one foot (either one) off the ground at least 6 inches. Do not stop, don’t let your foot touch the ground, point the toes of the raised foot toward the ground, keep your arms at your side, keep your eyes on your raised foot, and count out loud from 1 to 30.

Give it a try. If you sway, lose your balance at all, raise your arms at all, hop, put your foot down, mis-count, fall, or do anything other than what was instructed, those are all cues you are drunk. Think it sounds easy? Go on YouTube and search people performing FSTs and see what you think.


The bottom line is, these drills are intended to make anyone look suspicious so an officer can request a breath test.

The drills basically let you know if you have good balance and attention. If the officer is doing her job, she’ll ask you first if you have any physical problems that would prevent you from doing the drills. (Officers are not supposed to perform the drills on someone with balance problems, knee problems, back problems, ankle problems, foot problems, etc.) The problem is that officers rarely explain to the subject the extent of the drills they expect them to do. So how is someone supposed to know if they have a physical condition that may prove problematic as to show “sober balance”?

So the next time someone accused of a DUI tells you that they “passed” the sobriety testing, you can open up a can of knowledge on them and tell them that they simply participated in drills intended to show anyone could be intoxicated. You can also tell them they had the right to refuse to perform the drills, but didn’t. Yeah, you can politely exercise your constitutional rights when an officer asks you to do any of this and say, “No, thank you” — and they can’t force you to do them. That’s what I recommend you do!

If you’ve been charged with a DUI, I can help, even if
you failed the field sobriety tests (as most people do!).

Call me for a free consultation at 406-721-3354 or toll free, 855-853-1482.

10 Tips to Avoid Driving Drunk

cop breathalyzer test dui drunk drivingLights flash in your rear-view mirror. Busted. You start to feel sick. You don’t relish a run-in with the cops even on an average day, but the thing is, you aren’t totally sure your blood alcohol level is under .08.

You start to get sweaty as the cop approaches your window. The last thing you want is to spend the night in jail and get your keys taken away for 6 months. You imagine the looks on your friends’ faces as they try not to judge you, and that’s almost worse than knowing you could’ve gotten in a wreck or hurt someone else.

Don’t want to be in this situation? Of course not! Nobody does. So read these 10 ways to make sure you don’t drive while you’re intoxicated. (And if I’ve left something out, leave your own tips in the comments.) Consider:

10. Give someone your keys

Find someone trustworthy who isn’t drinking and hand over your keys for the night. Make sure they don’t give them back until they are confident you are OK to drive. Any effect to your coordination, speech, and/or balance means your blood alcohol level could be high enough to convict you of a DUI. The worse your speech is and the more unsteady you are, the more likely it is that you are in excess of .08 BAC. Dropping things and running into things as you walk is a good clue you’ve had too much.

9. Don’t drink on an empty stomach

Science shows that alcohol is absorbed by the body more slowly on a full stomach. If you’re hungry or dehydrated, the booze will go straight into your bloodstream and hit you harder. If you eat a big meal before drinking, you won’t get drunk as quickly. Try to eat proteins, fats, and dense carbs like meat, cheese, a PB&J sandwich, or yogurt.

And make sure you drink water — not soda — before, during, and after your drinking to slow down the absorption rate of the alcohol. (Soda will get you drunk faster.) Also, the old adage is true: Beer before liquor, never been sicker. This is because the carbonation in beer or soda makes the body absorb things faster. Mix hard alcohol with soda, and it’s the express lane for alcohol to affect you.

8. Know your body and pace yourself

Most people metabolize about one drink an hour (12 ounces of beer, 5 ounces of wine, or one shot of liquor). Heavier people and men generally metabolize a little more, and thinner people and women generally metabolize a little less. However, diet, tolerance and many other factors make it difficult to pinpoint exactly how much NOT to drink. A decent game plan is to have no more than 1 alcoholic drink an hour and follow each alcoholic drink with a full pint of water.

See approximately how fast you process alcohol using this calculator or these charts. For example, a 150-pound woman might be able to have 2 drinks in an hour and legally be OK to drive, but not a 125-pound woman. And a 175-pound guy might be fine with 3 drinks an hour, but not a 150-pound guy.

IMPORTANT: These are just general guidelines. You should start knowing your body and not rely on charts. Hopefully you already have a sense of your limit. Whatever it is, avoid drinking games unless you won’t be driving.

hipster couple riding subway7. Take public transit

No, it’s not glamorous, but taking the bus home is cheaper than a cab (free here in Missoula, in fact) and safer than driving. Check the Mountain Line schedule here.

6. Spend the night

This won’t work if you’re out at a bar, but if you’re at a friend’s house, ask if you can crash on the couch. Or catch a ride home with someone and sleep on their floor. If you’re blackout drunk, don’t go to sleep right away — the harsh reality is that you could choke on your own vomit. Someone passing out from drinking should go to the hospital just to be safe. Don’t let a friend get alcohol poisoning or make horrible decisions.

5. Wait an hour or two

Time is the only way to sober up — not coffee (which will dehydrate you even more), not chugging water, not taking a shower. Your blood alcohol level will go down roughly the equivalent of one drink an hour, so hang out and help clean up after the party, watch a movie, take a walk, or get something to eat while you wait. It’s hard to do but a good idea.

4. Stop drinking 90 minutes before you plan to leave

Designate a time to stop drinking alcohol that is hours before you plan to leave. You will still have alcohol in your system hours after you stop drinking. To be on the safe side, plan ahead and count backwards from when you want to leave. Want to head home around midnight? Don’t drink after 10:30 p.m. Then you won’t have to wait around til 2 a.m. for your buzz to wear off.

3. Take the night off from drinking

Be the designated driver tonight — and then stick to a no-drinking plan. If you and your friends take turns being the DD on different nights, you can drink on most occasions and have a safe ride home. Is the occasional night sober really that bad? You can laugh at all the drunken antics, and plus, you won’t feel totally gross tomorrow. If you really feel like you’re missing out, make yourself a mocktail with pomegranate juice and sparkling water, or sip an O’Doul’s. I know, it’s not the same…but you want to get home alive.

taxi cab snowing night

2. Call a cab

If you have the money, calling a cab is obviously one of your best options. You get to sleep in your own bed without any risk of getting a DUI. Sure, you have to pick up your car in the morning, but you might be able to get a ride (or take a cab back).

1. Pick a designated driver

Having a friend drive you home is probably your best option. It’s free, you still get to enjoy a few drinks, and you’re safe. Just make sure that friend hasn’t drunk too much! Don’t ride with anyone who’s intoxicated, even if they say they’re fine. Agree at the beginning of the night on who’ll be the designated driver, and don’t let anyone pressure them to drink.

I hope at least a few of these ideas are helpful. If the worst happens and you do get a DUI, I can help protect your rights and walk you through your options. And I promise not to judge. We’ve all been there. Call or email me at 406.721.3354 or

Photos: West Midlands Police, Ryan Vaarsi, Takashi Hososhima


Can I travel to Canada after a DUI Conviction in the US?

Canadian Flag

Has anyone told you that you can’t travel to Canada if you are convicted of a DUI in the United States? Well it is true. Anyone with a criminal record, including DUI, may be excluded from Canada. However, a process called Criminal Rehabilitation exists to gain travel privileges. If you were convicted of only one (1) DUI offense in the states, and a period of 10 years has passed since the completion of the sentence, you will be deemed Rehabilitated and Canada will allow you to travel freely. If you completed your sentence more than five (5) years ago, you can be eligible to apply to enter with a paperwork process. However you better have written proof establishing the timeline of your conviction(s) and completion and Canada has different calculations to determine when you “completed” your sentence. For example, if you were on probation, they start calculating the time after you ended probation. If your license was suspended for a DUI, they don’t start the 5 year clock until your suspension was over. Also, there is a process by which someone can get a waiver of this rule and a special Temporary Resident Permit or visa.
At the Judnich Law Office, we have helped many people through this process that has been convicted of a DUI and received notice that they had no problems after arrangements were made. Time is an important consideration though, IT TAKES TIME TO WORK THIS PAPERWORK OUT. Canada is not the United States, and they don’t care if you are in a rush. So don’t wait until the last minute. If you have a criminal conviction and want assistance getting into Canada, please contact us to find out how we can help you and what the cost associated with this help costs.

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