Field Sobriety Tests

What are they really for?

In addition to the 0.08 "per se" prong, the Washington DUI statute RCW 46 61.502, subsection (c), makes it a crime to drive while under the influence or affected by intoxicating liquor, or any drug. The term "under the influence of or affected by" is legally defined as when "a person's ability to drive is lessened in any appreciable degree."

What does this mean, that one's "ability to drive" is "lessened in any appreciable degree"? Well, guess what? There is no other definition or explanation provided in the law. This is the sum total of how the Legislature wrote it and how the Supreme Court has attempted to interpret it. This creates lots of room for argument in each case.

Field Sobriety Tests Prove Intoxication. Right?

Wrong. These field tests were not designed to provide proof of intoxication to the jury; they are not grounded in specific scientific proof and they do not correlate to specific degrees of impairment.

These tests were adopted by the NHTSA for officers in the field to have some relatively straightforward tests by which to gage whether a person might be impaired to justify their arrest.

These tests were deemed useful for officers in determining if they have probable cause to believe the person is intoxicated and therefore subject to arrest for DUI. They are "standardized" for use throughout the United States so any person under suspicion in any State will receive the same battery of tests that are taught for use nationwide to law enforcement.

So I have to do the field tests.  Right?

No, you don't. Law enforcement officers stop drivers because they think there is probable cause to believe the driver committed an infraction, or because they believe they have "reasonable articulable suspicion" that points to the driver being impaired, based on "bad driving".

In fact, officers cannot stop a vehicle merely because they subjectively have a hunch the driver is impaired. If that is the case, we get all the evidence suppressed that was collected after the traffic stop! Officers also cannot arrest someone on their subjective belief of the person's intoxication. If they do, we get all the evidence they acquired following the arrest suppressed!

At contact the officer may observe through their senses. The driver may have watery and bloodshot eyes, slurred speech, and have an odor of alcohol. The officer will inquire whether the person has consumed alcohol. If, based on driving and other observations the officer reasonably suspects the driver is impaired, the officer is then allowed to ask the driver to step out of their vehicle and perform one or more field sobriety tests.

These tests are completely voluntary, and the driver is not required to do them. Most people are unaware these FSTs are voluntary, and they rarely ask the officer if they are required to perform them for the officer. Sometimes officers forget to tell people they are voluntary. That is when we get FST evidence suppressed.

So did I "fail" the FSTs?

Courts allow FST evidence for the most part to allow the officer his or her explanation as to what the tests tell him or her-a non-expert-about the individual they are investigating and their opinion as it relates to their decision to arrest. In practice, the courts permit FSTs as substantive proof of guilt, even though the officer is rarely qualified as an expert. Even so, the court cannot give the jurors any legal juror instructions on how or if they should apply FSTs in determining guilt or innocence.

The field tests may play a pivotal position in a jury trial. This is especially true in the absence of other evidence, such as patrol in-car video or analysis of breath alcohol content. This is why an experienced DUI attorney is so important, especially if the breath test results have been suppressed!

The four "standardized" field sobriety tests used in Washington State and throughout the U.S. include the following:

• Horizontal Gaze Nystagmus Test- Most often officers will precede the three standardized test listed above with a test known as the Horizontal Gaze Nystagmus (HGN) test. The officer explains he or she will observe the individuals eyes. While keeping their head in a stationary position, the person is to follow an object with their eyes only. The officer usually uses a writing pen or their finger to pass back and forth about twelve inches in front of the eyes. The officer is testing each eye for the involuntary jerking of the eye as it tracks the pen stimulus. Lack of smooth tracking or pursuit is observed in persons under the influence of alcohol or some other CNS depressant. The officer is looking for nystagmus prior to the eyes reaching the halfway point from left to right and right to left. This is called "onset of nystagmus prior to 45 degrees". The officer is also looking for jerking of the eye as it reaches the end of the sweep or at the corner of the eye. This is known as "nystagmus at maximum deviation".
• Walk and Turn Test - This a divided attention and balance test. The starting position is for the person to stand with one foot in front of the other, with the toe of the left foot touching the heel of the right foot. The person is instructed to walk nine steps heel to toe, then turn around and again walk nine steps by placing the heel of the front to the toe of the back or previous step. The person is also instructed to watch their feet at all times, count the steps out loud, and keep their arms at their sides. They are graded by how often they step off the line, an incorrect number of steps, missing heel to toe, raising the arms for balance, or an improper turn. Overall this test is meant to test balance, coordination, and their divided attention or ability to recall and follow previous instructions.
• One Leg Stand Test - This is a balance test. The person is instructed to stand with their feet together and arms down at their sides. When the officer tells them to begin, the person is to raise one foot off the ground approximately six inches, with their foot parallel to the ground. While keeping one foot off the ground, a person is to count out loud -- one-one thousand, two one thousand, three one thousand, and so on -- until told to stop. The person must keep their arms at their sides and look down at their foot throughout the test. If they drop their foot the person is instructed to continue the time the person should keep each foot off the ground. The officer grades the test based on how much the person sways while balancing, raises their arms for keeping their balance, hops on one foot, and puts their foot down before making it through the 30 seconds time. As with the Walk and Turn Test, this test gauges balance, coordination and ability to follow instructions.
• Romberg Balance Test - This is a balance test. As with the One Leg Stand Test, the person begins by standing with their feet together and their arms at their sides. When told to begin the person is to tilt their head back, close their eyes, and count silently to themselves for 30 seconds. When they reach the count of 30 they are to open their eyes, look at the officer, and say the word "stop". The officer grades or records the person's inability to stand still, the degree of swaying from side to side, as measured in inches by the officer, body tremors, eyelid tremors, muscle tremors, and sound emitted by the person during the test.

With our experience, we at DUI Attorneys of Washington understand how to challenge the field sobriety tests. Even when administered by the book, they are largely subjective and have relatively little weight with a jury in most cases.

We know how to get them suppressed in the first place!