17 Mar Field Sobriety Test – Fact vs Fiction
Many of you have seen Field Sobriety Tests videos from police dash cameras of people performing the tests. Some of them are real, but many of them are spoof videos by comedians, like this one here. This post serves one and only one purpose, to explain the “real” Standardized Field Sobriety Tests (Field Sobriety Tests for short) and to debunk some of the myths floating around.
- You must perform Field Sobriety Tests when asked. There is no requirement that you perform any sort of field sobriety testing. In fact, the Bill of Rights, Amendment 5, says, “…nor shall [a person] be compelled in any criminal case to be a witness against himself.” If you are pulled over our suggestion is to politely inform the officer that you are not performing any tests and would be exercising your right to remain silent (and then remain silent). Be prepared, however, you may end up with a one-night stand in a jail cell – but at least you won’t give the police evidence of your impairment.
- You need to recite the alphabet backwards. No one can do this, even sober. It’s not part of Field Sobriety Tests although some uneducated police officers will occasionally ask people to perform this “test.”
- Finger to nose test. The Finger-to-nose test is an actual medical test, but should NOT be part of the battery of Field Sobriety Tests administered by any officer who knows his Maryland DUI laws.
- You can take and “beat” the Field Sobriety Tests. If the officer executes the Field Sobriety Tests correctly, can correctly describe his/her observations of you during the Field Sobriety Tests, and can testify accurately – you are going to have a difficult time “beating” the Field Sobriety Tests (but there is hope – see below).
- All people can perform Field Sobriety Tests. Officers are supposed to ask a series of questions prior to beginning any battery of Field Sobriety Tests. One of the most important is, “Do you suffer from any medical conditions that may inhibit your ability to perform these tests?” Officers should probe further but generally don’t. Many people don’t realize that many medical conditions are influencing the outcome of the Field Sobriety Tests. They should not perform the tests when they suffer from these conditions. Here is a short list of conditions that may lead to “false-positive” on parts of the Field Sobriety Tests:
- Inner ear problems
- Head injury
- Leg injuries
- Back injuries
- Excessive caffeine
- Exposure to solvents
- Some prescription drugs
- For a more exhaustive list, see Schultz v. State, 106 Md. App. 145 at 180-1
- There are three phases of Field Sobriety Tests. They are called Standardized because in 1981 years ago the federal government recognized that many police departments were performing various tests, some with doubtful accuracy. The National Highway Traffic Safety Administration (NHTSA) funded several scientific studies to determine the accuracy of drunk driving detection and came up with the SFST’s. They are:
- HGN. Nystagmus is an involuntary jerking or bouncing of the eyeball that occurs when there is a disturbance of the vestibular (inner ear) system or the oculomotor control of the eye. Horizontal gaze nystagmus (HGN) refers to a lateral or horizontal jerking when the eye gazes to the side. In the impaired driving context, alcohol consumption or consumption of certain other central nervous system depressants, inhalants or phencyclidine, hinders the ability of the brain to correctly control eye muscles, therefore causing the jerk or bounce associated with HGN. As the degree of impairment becomes greater, the jerking or bouncing, i.e. the nystagmus, becomes more pronounced. This is assessed in the horizontal gaze nystagmus test. It’s a very tiny reflex and improperly trained police officers can incorrectly diagnose it regularly. See more here and video here.
- Walk and Turn. 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 eight 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, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps. See more here and video here.
- One Leg Stand (OLS). 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 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. See more here and video here.
You can “beat” the Field Sobriety Tests. First, if you’re reading this, you are already a step ahead – politely decline the Field Sobriety Tests when asked. Second, officers rarely execute the Field Sobriety Tests correctly, they rarely correctly describe their observations, and most rare is the officer who can testify accurately. Often, officers exaggerate their claims and if you have a good Maryland Attorney who knows where to subpoena police car cameras and cross examine officers on the scientific accuracy of their methods, you can “beat” the Field Sobriety Tests. But remember, “beating” the Test is only a small piece of the puzzle when charged with a Maryland DUI. You also need to take prevention measures and demonstrate to the court your willingness to change the behavior that got you in court in the first place. You need a full playbook in order to win the ballgame.
If you find yourself charged with a Maryland DUI, be sure to contact a competent lawyer to guide you through the process.