Field Sobriety Test
To confirm his suspicion
that a driver is under the influence of alcohol, a police officer
will typically request that
the driver submit to field sobriety testing. This request will
usually be delivered more like a command, but a person may refuse
to submit
to field sobriety testing. Field sobriety tests are "psycho
physical" tests - "Psycho" as in mental, and "physical" as
in coordination. The officer is looking to see whether a person
can understand and remember instructions while performing feats
of gymnastics.
The National Highway Transportation Safety Administration (NHTSA)
has approved and validated three field sobriety tests:
- The Horizontal Gaze Nystagmus Test: This
is a test where the officer holds a pen or similar object
in front
of the subject's eyes to determine whether she can follow
it. The officer is also supposed to look for a "jerking" of
the eye when the pen is held at a 45 degree angle. If
this jerking is present it is supposed to indicate an alcohol
concentration
of over .10. While many police officers feel that this
is the most reliable field test they have in their arsenal,
it is
not
allowed in court unless the prosecutor has an expert witness
to testify to its scientific validity. Thus, it is almost
never introduced
in court.
- The One Leg Stand Test: This test requires
that the subject stand on one leg with his hands down at his sides
and count to 30. The officer will look for swaying, raising the
hands for balance and the ability to count properly, among other
things. This test is difficult for most people to do absent any
alcohol whatsoever, and is especially difficult if a person has
bad knees or ankles, a bad back, inner ear disorder, or any other
physical limitation.
- The Walk and Turn Test: This test is also called
the heel-to-toe test and usually requires that a person walk nine
steps heel-to-toe in a straight line, turn around, and walk nine
steps back. The officer will look to see whether the subject stumbles,
sways, uses his arms for balance, takes too many or too few steps,
and how he executes the turn. Again, this test is hard for most
people sober or not, and especially when taken on the side of
a road with flashing police lights and traffic whizzing by.
All of the NHTSA approved tests must be administered exactly as
prescribed in the NHTSA Manual or their validity is compromised.
Police officers usually have several other field sobriety tests
that they administer, although they have not been scientifically
proven to be reliable. These include the finger-to-nose test, requiring
people to say the alphabet or count backward and forward, and touching
their fingers together with their eyes closed. Our law firm has
specific ways of dealing with each of these tests and usually files
motions to limit their admissibility in the event of a trial.
It is extremely important that you inform your attorney of any
physical and/or mental injuries, disabilities, or illnesses that
you may have. Bad knees, ankles, hips or backs may explain away
a lack of balance or coordination on field sobriety tests. People
with learning disabilities like Attention Deficit Disorder may have
trouble understanding and following an officer's instructions. Allergies,
inner ear disorders and sinus problems may also cause imbalance.
This is the type of information upon which a successful defense
is based.
Another test frequently used by law enforcement officers is the
Preliminary Breath Test (PBT). This is a little machine that officers
carry in their cars. Usually right before the officer makes a DUI
arrest, he will have the driver blow into the PBT machine. The PBT
will alert an officer as to whether there is alcohol on the driver's
breath, and some machines will indicate whether a person is over
the limit or not. Police officers are supposed to wait fifteen minutes
before administering this test but rarely do. This machine is very
unreliable and, in fact, is not admissible in court to prove that
a person was driving under the influence. It can only be used as
evidence in court if the defendant (the driver) challenges the police
officer's decision to arrest him. Failure to take the PBT test is
a traffic infraction for which a ticket may be issued and the driver
fined (usually $50.00 to $200.00).
If the officer finds that a driver did not perform these tests
to his satisfaction, the driver will be arrested for DUI. At that
point the driver is often handcuffed, searched for weapons and/or
contraband, and placed in the officer's car for transportation to
the police station for booking and a blood or breath test. Throughout
this entire episode, from the point of initial contact until the
driver is released, the officer will note the person's attitude
and behavior. Combativeness and belligerence are considered signs
of intoxication. It always pays to be courteous and polite to a
police officer.
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