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Challenging the Field Sobriety Test

National College for DUI Defense - General Member

Orlando Drunk Driving Defense Attorney Working With Individuals to Challenge the Field Sobriety Test

Feel like you were wrongfully accused of DUI during a FST?  We've seen hundreds of these kinds of cases.  Call us for a free case review at (407)228-3838.

Field Sobriety Tests

By William D. Umansky, Esquire

If you are stopped by the police while driving and they suspect that you have been drinking alcohol it is likely that they will request you to perform a series of Field Sobriety tests to determine if you are impaired or intoxicated. Field Sobriety tests were developed by police agencies to help law enforcement in making roadside determinations as to whether a driver is under the influence of alcohol or drugs. Based upon your performance of these tests or evaluations, the police officer subjectively determines how you react to and perform the tasks he requests you to do.

A driver's alleged performance on Field Sobriety tests may provide the legal justification or probable cause the police officer needs to arrest a person for driving while under the influence of alcohol (drunk driving) and they also become evidence used to later convince a jury that you are guilty at a trial.

Horizontal Gaze Nystagmus Test

One of the first tests, the police will administer is the Horizontal Gaze Nystagmus Test (HGN). The horizontal gaze nystagmus relates to the relationship between drinking alcohol and the onset of nystagmus in the human eye that has been well documented by researchers. Nystagmus is a natural phenomenon related to the involuntary jerking of the eyes. Alcohol does not cause nystagmus, but may exaggerate or magnify the involuntary jerking of the eyes. Police officers who have trained correctly conduct the HGN in the following manner:

  1. Begin by asking "Are you wearing contact lenses". Make a note whether or not the suspect wears contact lenses before starting the test.
  2. If the potential suspect is wearing eyeglasses, have the suspect remove them.
  3. The officer should give the suspect the following instructions from a position of safety:
    • "I'm going to check your eyes."
    • "Keep your head still and follow the stimulus with your eyes only."
    • "Keep focusing on the stimulus until I tell you to stop."
  4. The police officer should then position the stimulus, usually a pen, approximately 12 to 15 inches from the suspect's nose and slightly above the suspect's eyes.
  5. The officer should then check the suspect's eyes for the ability to track the stimulus. According to National Highway Safety Transportation Administration (NHTSA), if the eyes don't track together it could indicate a possible medical disorder, injury or blindness.
  6. The police officer should next check to see that both pupils are equal in size. If the pupils are not equal in size, this may indicate a head injury not related to alcohol.
  7. The police officer should next check the suspect's left eye while moving the stimulus to his right. The officer should move the stimulus smoothly at a speed that requires about two seconds to bring the suspect's eyes as far to the side as they can go. While the police officer moves the stimulus, he is to look at the suspect's eyes and determine whether the eye is able to track the object smoothly. Then the police officer should move the stimulus all the way to the left, back across the suspect's face, checking to see if the suspect's right eye is able to track the stimulus smoothly. Movement of the stimulus should take approximately two seconds out and two seconds back for each eye. The police officer should then repeat the procedure for the other eye.
  8. Next the officer should check both eyes for lack of smooth pursuit, and also to examine the suspect's eyes for distinct nystagmus at maximum deviation beginning with the suspect's left eye. The police officer should simply move the stimulus to the suspect's left side until the eye has gone as far to the side as possible. Usually no white will be showing in the corner of the eye at maximum deviation. The police officer should use the stimulus to hold the suspect's eye at that position for about four seconds, and observe the eye for distinct nystagmus. The police officer should then move the stimulus all the way across the suspect's face to check the right eye, holding that position for approximately four seconds and then repeating the procedure.
  9. After law enforcement checks the suspect's eyes at maximum deviation, he or she should then check for onset nystagmus prior to 45 degrees by starting to move the stimulus to the right (the suspect's left eye) at a speed that would take about four seconds for the stimulus to reach the edge of the suspect's shoulder. The police officer should watch the eye carefully for any sign of jerking. If the police officer observes jerking, they should stop the test and verify that the jerking continues. The police officer should then move the stimulus to the left (the suspect's right eye) at a speed that would take about four seconds for the stimulus to reach the edge of the suspect's shoulder. Again, the law enforcement officer should watch the suspect's eye carefully for any sign of jerking. If the police officer sees jerkiness of the eyes, he should stop and verify that the jerking continues in the procedure.

Source: NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION, DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUEL, HS 178R2/00, SECTION VIII (2000)

Did you fail The HGN?

The police officer will look for the following three clues on the HGN test to determine whether the suspect's blood alcohol content is above a .10. The following three clues are as follows:

  • the eye cannot follow an object smoothly
  • nystagmus is distinct when the eye is at maximum deviation
  • the angle of onset of nystagmus is prior to 45 degrees

According to NHTSA, if the police officer observes 4 or more clues total for both eyes it is likely that the suspect's blood alcohol content is above .10.

Hiring an experienced criminal defense attorney is imperative as there are many causes of exaggerated nystagmus other than being impaired by alcohol. For example, some other possible causes of nystagmus are inner ear problem, flu, infection, measles, syphilis, brain hemorrhage, epilepsy, glaucoma, toxins, arm muscle imbalance, exposure to solvents such as paint, prescription drugs, excessive amounts of caffeine or nicotine, motion sickness, eye muscle fatigue, and vertigo among others. An experienced criminal defense attorney can determine if the police officer properly conducted the test and whether or not the cause of the suspect's nystagmus was related to alcohol or perhaps related to one of the other conditions stated above.

One Leg Stand Test

The second most common test a police officer will ask a suspect to do is the one leg stand test. Simply put, the officer will ask the suspect to raise his leg and keep it up for thirty seconds. Unfortunately, the test is not that simple. According to the National Highway Traffic Safety Administration, the police officer should initiate the test by giving the following verbal instructions along with demonstration of those instructions:

  1. The police officer should then direct the suspect to stand with his feet together and arms down at his side and then demonstrate it for the suspect
  2. The police officer should tell the suspect to not start to perform the test until the police officer tells them to do so
  3. The police officer should then ask if the suspect understands the instructions so far
  4. The police officer should then explain the test requirements using the following verbal instructions accompanied by demonstrations
    1. "When I tell you to start, raise one leg, either leg, approximately six inches off the ground, foot pointed out"
    2. "You must keep both legs straight, arms at your side"
    3. "While holding that position, count out loud in the following manner: "One thousand and one, one thousand and two, one thousand and three until told to stop"
    4. "Keep your arms at your sides at all times and keep watching the raised foot"
    5. "Do you understand the instructions?"
    6. "Go ahead and perform the test"
  5. The police officer should always time the thirty seconds and the test should be discontinued after thirty seconds. If the suspect puts the foot down the police officer should give instructions to pick the foot up again and continue counting from the point at which the foot touched the ground. If the suspect counts, terminate the test after thirty seconds.

Source: National Highway Traffic Safety Administration, US Department of Transportation, DWI Detection Standardized Field Sobriety Testing Student Manual, HS 178R2/00, Section VIII (2000)

The police officer who has trained using the NHTSA Manual should be looking for the following clues:

  1. The suspect sways while balancing
  2. The suspect using arms for balance, more particularly the suspect moves his arm 6 or more inches from the side of the body to keep balance
  3. Hopping
  4. The suspect puts his foot down one or more times during the thirty second count

If the police officer suspects two or more clues he can determine if there's a good chance the defendant is impaired by alcohol.

The police officer should conduct the test on a level, dry and non slippery surface and should take into account the suspects age of 65 years or older, their weight if 50 pounds or more overweight, and if the individual has leg, back and middle ear problems as they will have more difficulty performing the test. Hiring an experienced DUI Criminal defense lawyer is imperative to point out the flaws, if any, of the police officer's handling of the instructions and demonstration stage of the one leg stand test and furthermore, to provide a defense if the defendant should have any other problems or conditions stated above such as age, medical condition, ear problems, and/or balance problems.

Walk and Turn Test

The third test NHTSA recommends is the walk and turn test. Simply put, the police officer wants to see if the suspect can walk a line with the proper balance and simultaneously have the ability to listen to instructions. According to NHTSA, the police officer prior to starting the test should always ask the suspect if he or she has had any injuries or other conditions which might affect his or her ability to walk or balance, including head, back, neck and leg injuries.

The police officer should follow the following standard procedures for the walk and turn test first by having the police officer should have the suspect assume a heel to toe stance and giving the following verbal instructions along with demonstrations:

  1. "Place your left foot on the line (the line can be real or imaginary)" Field Sobriety Tests
  2. "Place your right foot on the line ahead of the left food, with the heel of the right foot against the toe of the left foot"
  3. "Place your arms down at your sides"
  4. "Keep this position until you can begin. Do not start to walk until told to do so"
  5. The police officer should ask if the suspect understands the instructions
  6. The police officer should then explain the test requirements, using the following verbal instructions along with demonstrations:
  7. "When I tell you to start, take nine heel to toe steps, turn, and take nine heel to toe steps back"
  8. "When you turn, keep the front foot on the line and turn by taking a series of small steps with the other foot, like this"
  9. "While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud"
  10. "Once you start walking, don't stop until you've completed the test"
  11. "Do you understand the instructions?"
  12. "Begin and count your first step from the heel to toe position"

Source: National Highway Traffic Safety Administration, US Department of Transportation, DWI Detection and Standardized Field Sobriety Testing Student Manual (2000)

According to NHTSA, the police officer should look for the following clues:

  • Suspect cannot keep balance or listen to instructions
  • Suspect starts before instructions are finished
  • Suspect stops while walking
  • Suspect does not touch heel to toe
  • Suspect steps off the line
  • Suspect uses arms to balance
  • Suspect takes an improper turn
  • Suspect takes incorrect number of steps

The officer only needs two or more clues according to NHTSA to determine if the suspect is perhaps impaired by alcohol or something else. The officer should make sure that the suspect can see the line and should be performed on a dry, hard, level and non slippery surface.

Hiring an experienced DUI criminal defense attorney is imperative to challenge the police officer's training on conducting the test, the conditions under which the test was given, and to address any physical or mental issues the defendant may have had other than alcohol intoxication that might have caused poor performance on the walk and turn test. The foregoing three tests are the only tests that are acknowledged by the National Highway Safety Traffic Administration as validated sobriety tests.

Other Non Standardized Test

Law enforcement has creative ways to subjectively determine whether a person is impaired by alcohol and unfortunately will conduct some other non standardized test:

  1. The Ram Berg alphabet test. There are many different variations to this test, but most include requiring the suspect to say the complete alphabet without singing it. Hiring an experienced criminal defense attorney is imperative to attack the validity of these tests. Many people have not stated the alphabet since childhood. Many citizens do not speak English as their primary language and their inability to say the alphabet may be a product of sheer nervousness other than intoxication by alcohol.
  2. The Finger To Nose test. Essentially in this test the police officer requires the person to touch the tip of his nose with the tip of his finger while tilting the suspect's head back as far as possible keeping his eyes closed. The police officer then calls out each hand, left, right, left, right, and then right left in an attempt to confuse the suspect. The finger to nose test does not have standardized scoring in order to establish whether a person passed or failed the test and is based upon the police officer determining whether the suspect passed or failed.

In conclusion, remember that when you're pulled over and you're suspected of driving while impaired (drunk driving) by alcohol or under drugs, the police officer is likely to ask you to conduct a series of field sobriety tests. Some of those field sobriety tests are recognized by the National Highway and Safety Transportation Administration and other tests are not recognized by that same organization. The police officer has to be properly trained and use that training to properly conduct the test. Should the police officer not conduct the test properly, an experienced criminal defense attorney will be able to help you. The attorney challenges the police officer's ability to conduct the test by attacking a police officer's ability to conduct the test, and the non standardized way the officer may have administered the test..

If you are charged with a Orlando DUI lawyers or questioned during the field sobriety test, please contact our law firm where we have extensive experience representing residents and tourists throughout Orlando and the rest of Central Florida who have been charged with violating Florida's DUI laws. Our Orlando DUI lawyers have the experience necessary for vigorous representation of your case. Please call us today (407) 228 3838.

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