Take or Refuse the Tests… A Difficult Decision

A driver who refuses the field sobriety exercises, places the police officer in the difficult position of deciding whether to arrest the driver based on the evidence he has gathered up to that point (i.e. driving, speech, balance, dexterity) or to simply terminate the DUI investigation and let the driver go.

If you smell of alcohol and display any other signs of impairment, your arrest is almost a certainty if you refuse the field sobriety tests. However, in our experience, if the officer is asking that you perform FST’s, it is likely that he has already made up his mind that he is going to charge you with a DUI offense. The arrest might be avoided if you pass the test. However, these tests can sometimes be difficult to perform even if completely sober. You should promptly tell the officer about any physical or mental problems that might have an impact on your ability to perform the tests.

The Role of Video in Pinellas County DUI Arrests

Field sobriety tests are usually videotaped by law enforcement in Pinellas County. It is common for a police officer to have you perform the tests in a well-lit area, such as in front of a closed business or in an empty parking lot. These videos are critical evidence affecting each case.

A person who looks good performing field sobriety tests on camera and then subsequently refuses the breath test, may sometimes be a good candidate for having their attorney seek a reduction to a charge of “reckless driving.” On the other hand, the old expression: “a picture is worth a thousand words” cannot be truer when related to a DUI prosecution. The obvious reason being that a person who does look impaired by alcohol or drugs on the video is often convicted of DUI, despite any subsequent refusal to submit to the intoxilyzer.

Read our article on how we can evaluate your field sobriety test performance.

Law Enforcement’s Field Sobriety Testing Manual

The following information represents a portion of the manual used by police officers in their administration of roadside field sobriety tests. Officers typically take a course taught by a National Highway Traffic Safety Administration (NHTSA) Instructor to learn the proper administration of the tests. Keep in mind that in Florida, the presumptive BAC level for impairment is .08

Standardized Field Sobriety Testing

The Standardized Field Sobriety Test (SFST) is a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA) and conducted by the Southern California Research Institute. A formal program of training was developed and is available through NHTSA to help police officers become more skillful at detecting DWI suspects, describing the behavior of these suspects, and presenting effective testimony in court. Formal administration and accreditation of the program is provided through IACP. The three tests of the SFST are: the horizontal gaze nystagmus (HGN), the walk-and-turn the one-leg stand. These tests are administered systematically and are evaluated according to measured responses of the suspect.

HGN Testing

Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater. NHTSA research indicates that this test allows proper classification of approximately 77 percent of suspects. HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.

Divided Attention Testing: The Walk & Turn and One-Leg Stand

The walk-and-turn test and one-leg stand test are “divided attention” tests. They require a suspect to listen to and follow instructions while performing simple physical movements. Impaired persons have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises.

In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, uses arms to balance, loses balance while turning, or takes an incorrect number of steps. NHTSA research indicates that 68 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater.

In the one-leg stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for a total of 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.10 or greater.

The effectiveness of SFST in court testimony and evidence depends upon the cumulative total of impairment indicators provided by the three-test battery. The greater the number of indicators, the more convincing the testimony.

These “divided attention” tasks are incredible difficult to perform, even when completely sober. Thus, it is critical that a highly skilled DUI Defense Lawyer evaluate your performance on the tasks, as well as thoroughly examine the correctness of the officer’s directions.

Alternative Tests Sometimes Employed by Pinellas County Law Enforcement

Sometimes, an officer will encounter a disabled, overweight, or injured driver who cannot perform the SFST. In such cases, some other battery of tests such as counting aloud, reciting the alphabet, or finger dexterity tests may be administered. Several appellate court decisions have indicated that a test that requires an in-custody subject to respond orally, beyond routine information, such as requiring a date of birth, requires Miranda warnings. In addition, the non-standardized nature of the tests administered may be subject to attack because of the unusual or unfair nature of the examination. Thus, if an officer requests that an arrested subject recite the alphabet, he must first advise him of his Miranda warnings.

Have an Experienced DUI Lawyer Evaluate Your Refusal to Perform Field Sobriety Exercises

Every DUI case is different. It is important to have a lawyer who is familiar with the implications of refusing to perform Field Sobriety Exercises and how that refusal will be viewed in court. On the other hand, if you elected to perform the tests, the question remains whether they were properly administered and fairly analyzed. Our office can examine the specific facts of your case and determine if there are any possible legal or factual defenses available to deal with your refusal to perform the Field Sobriety Tests. For example:

• Did the law enforcement officer inform you that a refusal to perform Field Sobriety Tests could be used against you in court? If not, your refusal may not be admissible as evidence against you.
• Did law enforcement explain the purpose or meaning of the exercises before asking you to perform them? If not, your refusal may be excluded from evidence in your DUI case.
• Was the area where the officer chose to administer roadside Field Sobriety Tests safe, well-lit, free of debris, and level? In the event the area was unsuitable for the administration of Field Sobriety Tests, an argument may be available that your refusal was completely understandable given the inappropriate nature of the officer’s request.
• Do you have any physical or mental limitations that made the performance of Field Sobriety Tests difficult or impossible to perform? If the law enforcement officer failed to take these issues into consideration or failed to offer alternative tests, the weight of your “refusal” as incriminating evidence could be greatly diminished.

If you have been charged with a DUI in St. Petersburg, Clearwater, Dunedin, Safety Harbor, Tarpon Springs, Palm Harbor, Largo, St. Pete Beach, Treasure Island, Gulfport, Pasadena, Indian Rocks Beach, Indian Shores, Redington Shores, Madeira Beach and Belleair, contact our highly rated DUI defense team to schedule a free consultation. During this meeting, we can discuss these issues with you, as well as all of the other facts and circumstances surrounding your DUI case.