Challenging the Field Sobriety Test in Florida

DUI Attorney Orlando

Types of DUI Field Sobriety Tests in Orlando

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 (DUI) and they also become evidence used to later convince a jury that you are guilty at a trial.

To learn more, please see the tests topics and information below or contact our DUI lawyers for a free case review:

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. 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 effect. Police officers who have trained correctly conduct the HGN in the following manner:

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 four 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:

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

  • The suspect sways while balancing
  • 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
  • Hopping
  • 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:

Source: National Highway Traffic Safety Administration, U.S. 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 Tests

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

Building A Defense Against Field Sobriety Tests

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 DUI or questioned during the field sobriety test, please contact our law firmwhere 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 at 407-228-3838 or complete our online form.

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