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Field sobriety tests are the primary tools used by law enforcement to determine whether or not a person is impaired by alcohol. Police are also the primary evidence against a person to prove that they are legally “under the influence of alcohol” if no evidentiary chemical test result is obtained. Field Sobriety Tests are strictly voluntary and a driver has the ability to refuse these so-called “tests” without any negative implications on their driving privileges.
Field sobriety tests are by no means fool proof and many people cannot perform the tests to law enforcement standards even without having consumed any alcohol. A study conducted at Clemson University found that law enforcement officers will “fail” completely sober individuals on these tests an astounding 46% of the time.
Despite their issues, the three “standardized” field sobriety tests are as follows:
Officers check for alcohol induced “gaze nystagmus” by manipulating the eyes back and forth determining when and for what duration, nystagmus is observable. Nystagmus is simply the “involuntary jerking of the eye.” It happens to everyone all of the time at some level, but the theory behind this test is that the more alcohol that is consumed, the more visible and distinct the jerking will be. However, there are environmental conditions that can induce observable nystagmus even without any alcohol being consumed. These include rotating lights and passing traffic in close proximity to where the test is being conducted. Both of which are present in almost every OWI investigation. Also there are approximately 43 medically recognized conditions with the eye that can mimic alcohol induced “gaze nystagmus.” Officers are not trained to distinguish between alcohol induced nystagmus and these other medical conditions.
Also known as Simon Says for law enforcement. The individual is asked to stand in the start position with his/her left foot on the “real or imaginary line” with the right foot in front touching heal to toe. The officer then explains the tests, instructing the individual to take 9 heal-to-toe steps down the line while keeping his/her hands at their side and counting the steps aloud. On the 9th step, the individual is instructed to keep the front foot planted and turn using a series of small steps and return the way they came out. During the test the officer is looking for a number of “clues.” 1) Does the person start before being told? (Simon didn’t say); 2) Doe the person break the heal-to-toe position during the instruction stage? For each step, the officer then looks for five separate “clues.” Does the person: 1) Stop walking; 2) Take the proper number of steps; 3) Step off the line (real or imaginary); 4) Miss heal to toe contact by more than ½ an inch; and 5) Use arms for balance (raise them more than 6 inches). The turn is also graded and if the person does not “turn using a series of small steps,” for example, pivots, a “clue” is assessed. Adding it all up, there are 93 ways a person can score a “negative clue.” A score of 2 is considered a “failure” by law enforcement standards.
The one leg stand requires the individual to pick a leg to balance on, and lift the other leg, strait out to a point where their foot is six inches off the ground and maintain that position counting out loud (one thousand one, one thousand two, etc). The officer times this “test” for 30 seconds and looks for the following four “clues”: 1) Uses arms for balance (6 inches from side); 2) Sways; 3) Hops; or 4) Foot down. A score of “two” is considered a “failure” by law enforcement.
As you can see, field sobriety tests are completely subjective. The Horizontal Gaze Nystagmus test has no objective verification like the other two tests often times do through video recordings. Thus, the tested person is completely at the mercy of the officer to correctly and truthfully document and testify as to what is observed. More importantly a person can “pass” one or two of the field sobriety exercises and the law enforcement officer will often times still base the arrest decision on the perceived performance on just one of the tests. Add to all this the fact that at the time a person is being asked to submit to these tests they are scared and intimidated and submitting to field sobriety exercises becomes a less and less attractive option. Electing not to submit to these tests is completely within an investigated person’s ability and is an option that should seriously be considered. Prisons are full of people that attempt to cooperate their way out of being arrested or sent to jail for just one night. You should know your options and exercise them in a way that has your best interest in mind.
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