Stopped for DUI? Say NO to Field Sobriety Tests! (Part II)

If a driver is pulled over in Huntington Beach, Newport Beach, Long Beach or Santa Ana on a routine traffic stop and the police officer suspect’s intoxication, it is generally standard practice for the officer to request the driver to step out of the vehicle to perform field sobriety tests. To the officer and attorneys, these tests are otherwise known as “FST’s”. The driver is asked to perform simple physical or cognitive tests to assist the officer in determining the sobriety of the driver. The National Highway Traffic and Safety Administration (NHTSA) guidelines were set up to help make these tests more accurate. They are now called ’standardized field sobriety tests.’

The “Standardized” tests, as established by the NHTSA, are: The Horizontal Gaze Nystagmus (HGN) test; The Walk and Turn (WAT), and The One-Leg Stand (OLS).

Horizontal Gaze Nystagmus (HGN)
“Nystagmus” means an involuntary jerking of the eyes. HGN refers to an involuntary jerking of the eyes as they gaze toward the side. The central point is that the normal motion of the eye is impaired (presumably due to alcohol or drug intoxication) and the resulting nystagmus is involuntary and uncontrollable. What isn’t readily discussed by the prosecuting attorney is that science has proven the existence of numerous other factors (aside from alcohol) that may cause noticeable nystagmus.

In administering the test the officer has the subject follow the motion of a stimulus with the eyes only. The stimulus may be the tip of a pen or penlight, an eraser on a pencil or a fingertip. As the eyes move from side to side each eye is examined for three specific clues:

1. Lack of Smooth Pursuit - Does the eye move slowly or does it jerk noticeably? If there is smooth pursuit, your eye should appear as if it were a marble rolling over glass. If there is a lack of smooth pursuit, your eye should appear as if it were a marble rolling over sandpaper.

2. Distinct Nystagmus at Maximum Deviation - When the eye moves as far to the side as possible and is kept at that position for at least four (4) seconds, does it jerk distinctly?

3. Onset of Nystagmus Prior to 45% as the eye moves to the side - Does it start to jerk prior to a 45% angle?

Officers frequently fail to properly administer the HGN. It is critically important for your attorney to review the videotape (if available), to ascertain whether the test was properly administered or whether suppression of the results is possible.
Walk and Turn (WAT)
The WAT is a divided attention test consisting of two stages: Instruction Stage and Walking Stage. In the instruction stage, the subject must stand with their feet in heel to toe position, keep their arms at their sides, and listen to instructions. The subject must maintain the heel to toe position and may not begin walking until all instructions are given. In the Walking Stage the subject takes nine heel to toe steps, turns in a prescribed manner, and takes nine heel to toe steps back, while counting out loud and watching their feet. Officers observe the subject’s performance for eight clues:

1. can’t balance during instructions;
2. starts too soon;
3. stops while walking;
4. allows more than ½ inch between heel and toe;
5. steps off line;
6. uses arms for balance;
7. loses balance on turn or turns incorrectly; and
8. takes the wrong number of steps.

A subject who exhibits two or more clues will fail the test. Scoring is entirely subjective and within the officer’s discretion.

One Legged Stand (OLS)
The OLS is also divided into instruction and performance stages. In the Instruction Stage, the subject must stand with feet together, keep arms at side and listen to instructions. In the Balance and Counting Stage, the subject must raise the leg of his choice approximately 6 inches off the ground, toes pointed out, keeping legs straight. While looking at the elevated foot, count out load in the following manner: “one thousand and one”, “one thousand and two”, etc., until told to stop. The officer will instruct the subject to stop after 30 seconds. The subject is observed for the following clues:

1. sways while balancing;
2. uses arms to balance;
3. hops; and
4. puts foot down.

A subject who exhibits 2 or more clues, as determined by the officer, will fail the test.

As you can see, an officer that has requested for a driver to perform any of these standardized tests is not investigating for clues as to why the driver should be released. Rather, the officer is searching for confirmation as to why he should arrest you for driving while intoxicated. The validity of the SFST results are always questionable in almost every case. For any result to be valid and reliable, Officers must administer the tests exactly as trained. Any deviation can lead to invalid results. A requirement for any test to be valid is that the tests must be performed on a flat surface. Any incline or uneven surface will result in unreliable results.

Moreover, even if administered perfectly, the tests themselves are not perfect and they are not appropriate for many individuals who have had certain past injuries, medical conditions, advanced age, etc. Therefore, we recommend that if you are pulled over for suspicion of driving under the influence of drugs and/or alcohol, DO NOT SUBMIT TO PERFORMING ANY FIELD SOBRIETY TESTS!!!

If you have been arrested for Driving Under the Influence (DUI) in Huntington Beach, Newport Beach, Santa Ana, Long Beach, or anywhere in Orange County, you need the assistance of competent DUI defense attorneys working to ensure your rights are protected and that you receive your constitutional due process. The criminal defense lawyers at Houston & Blanco can assist with your DUI charges and handle any other criminal accusations against you. Call TODAY! Do NOT WAIT! Call the Newport Beach criminal defense attorneys of Houston & Blanco at 714.841.3921 or email at info@HBLawyers.net .