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.[Tweet “Never take field sobriety tests — they’re designed to make you look drunk, 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. Did you know that these drills are not 100% accurate? Officers are trained that a significant percentage of the population will show “cues” on these drills even if completely sober. 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.
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 in a specific manner to test for this jumping. 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 and is not accurate in some of the population.
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. There are many, many ways in which an experienced DUI defense attorney can establish how flawed this drill is at trial.[Tweet “Cop tells you ‘Watch this pen’? Don’t. You could fail for 40 reasons other than drunkenness.”]
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?) Did you know there are two specific parts of the population that officers are trained to know that this drill has not been established to be reliable on? It’s true, and our office knows if you fall into this population. If the tests are not reliable on that population, then they can’t use those tests against you. If you want premier DUI defense, we can help.
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, traffic is flowing by, people are looking at you. 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.)
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, looking at your feet. 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. Again, and experienced DUI defense attorney can poke holes in how these tests are advised, administered and scored by the officer. 99% of the time the officer has made a mistake.
The One Leg Stand
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 officer won’t tell you that if you have a medical condition or injury that could affect the test, they are not supposed to make you take it. Likewise, there are pages and pages of reasons why someone cannot perform this test without showing any “cues” of intoxication. At the Judnich Law Office we have our clients fill out a multiple page question sheet that goes over ever single possible area that could explain showing cues in all of these drills. Only with this information can you effectively be represented in Court. Have you heard of other attorneys going to these lengths to help you and your DUI case?
The bottom line is, these drills are intended to make anyone look suspicious so an officer can request a breath or blood 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.
Marty is a former criminal prosecutor in the Cascade County Attorney’s Office and now uses that experience to defend those accused of crimes. A University of Montana School of Law graduate, Marty focuses his practice on personal injury and criminal defense and is a premier DUI defense attorney. He is also well versed in the insurance claims industry and has negotiated significant settlements with nearly every major insurance company.