The term "field sobriety tests" is a misnomer. Even the "state of the art" DUI field sobriety tests currently approved by the Federal Government do not, according to the most recent research, measure impairment of the ability to safely drive a car. They do measure agility and the ability to do certain physical feats under extreme pressure. Calling them "roadside agility tests" is probably more accurate but since most people know them as field sobriety tests, we will use that term in this section.
Field sobriety tests are not mandatory and there is no legal obligation to submit to the tests under Washington State DUI law. Refusing the tests, however, will probably not prevent the driver's arrest and may even make the arrest happen more quickly. A refusal to do the tests will undoubtedly make the officer more suspicious. A decision by our state Supreme Court, State v. Stalsbroten, permits a prosecutor to argue that the refusal to take field sobriety tests is evidence of "consciousness of guilt" despite the fact that there are many good reasons to refuse to take the field tests.
An interesting issue arises in Washington State DUI arrests when the DUI arrest was videotaped by police. Then, a defense attorney can obtain the tape and in many cases use it to show what actually happened when the DUI field tests were performed. Strangely, the police are using less video now than in past years. An exception is in a Seattle DUI arrest involving Seattle Police DUI squad officers, video is almost always used.
Experienced DUI defense attorneys have heard officers testify about a variety of "sobriety tests" which are offered to prove that a driver is drunk. These tests included such feats as the following:
Coin Pickup DUI Test
Officer drops coins on the ground. Driver tries to pick them up. Driver has trouble picking one or more of them up, or misses one in the darkness.
Hand Pat DUI Test
Officer tells driver to pat hands in a particular sequential order, up, up, up and down, down, for instance. If the driver fails to follow instructions, (because she has never tried such a thing before) it's a "fail." Trick Questions: "What was the date of your thirteenth birthday?" If not answered properly, this shows the driver is under the influence of alcohol. Partial ABCs: Say the abc's from "D" through "U," without singing them. If not said properly, or if done they way they were learned, by singing, you're one step closer to jail.
Tongue Twister DUI Test
Say "sophisticated statistics" or "Methodist methods" quickly three times.
Time Estimates as DUI Test
Close your eyes and estimate when 25 seconds has elapsed.
None of these tests is a scientific measure of intoxication and there is no scientific research to justify use of such tests. There are, in fact, only three tests "approved" by the Federal Government (National Highway Traffic Safety Administration or "NHTSA") for use by police: Horizontal Gaze Nystagmus (HGN), the "One-Leg Stand" and the "Walk and Turn" tests. To be valid, the NHTSA approved tests must be administered and graded precisely according to NHTSA rules for each and every DUI suspect. Let's examine the "approved" NHTSA battery of DUI field sobriety tests:
HGN
This is an "eye test" and the officer tries to estimate in degrees where the suspects eye "bounces" when following a pen or finger from side to side. The vast majority of Washington courts have not been persuaded that this test is reliable enough to be used as courtroom forensic evidence, but many police officers think it is the most accurate field sobriety test. Below is an example of what HGN looks like in the best of conditions. Real eye doctors would agree that it is difficult, if not impossible, to measure HGN accurately in roadside conditions.
ONE-LEG STAND DUI Test
Subject stands on one leg for approximately 30 seconds. NHTSA instructs the officer to look for four "clues" to determine pass or fail:
sways while balancing
uses arms to balance
hops
puts foot down
According to NHTSA, the best that can be said about this test is that if the individual is unable to finish the test, the "probability" of correctly identifying an individual with a blood alcohol concentration of .10% or higher is 65%. This means that under ideal conditions, this test "fails" 35 out of 100 people whose blood alcohol concentration is not over the legal limit.
WALK AND TURN or WALK THE LINE DUI TEST
The federal procedure for this test requires a visible line to walk or a straight reference point, like a curb, in plain sight. Further, the testing surface must be level. NHTSA requires the officer to give specific instructions, including requiring the suspect to stand in a "heel to toe" position during the instructions. Next, the suspect must walk nine steps up and nine back, all heel to toe, all on the line. Here are the "clues" used to determine "pass" or "fail:"
can't balance during instructions
starts too soon
stops while walking
doesn't touch heel to toe
steps off the line
uses arms to balance
loses balance on turn or turns incorrectly
takes the wrong number of steps
If the individual is unable to complete the heel totoe test, the probability of correctly classifying an individual as having a .10% bac or more is 68%. This means that 32 of every 100 people who fail this test are, by NHTSA logic, "legally sober."
There is probably not a single police agency in the state of Washington which strictly follows the Federal NHTSA rules for DUI field sobriety tests. As an example, here are the "heel to toe" instructions typically given by a local police department's DUI emphasis patrol officers:
Have subject stand on line, right heel to left toe, keeping arms at sides while you complete the instructions for the test. After giving the instructions, have the subject walk in a straight line (no visible line is required in these instructions) in a heel to toe manner, taking nine steps without stopping, keeping arms at sides, looking at feet while stepping, and counting the steps out loud, then turn around by taking small steps with the back foot while keeping the front foot on the line, and walk back in the same manner.
A driver who refuses to take the DUI field sobriety tests forces the officer to make the decision to arrest based upon the evidence of intoxication, if any, the officer has obtained up to the point the FSTs were refused. If the officer smelled alcohol on the driver's breath, and noticed ANY other signs that might indicate intoxication, the DUI arrest is almost a certainty if the driver refuses the DUI field tests. The DUI arrest might have been avoided had the driver taken the tests and passed them 100%. On the other hand, for most officers, less than perfect performance on the field sobriety tests will likely constitute a "failing" grade and result in an arrest anyway. The driver being asked to take field sobriety tests faces a difficult decision, and one that must be made quickly as the officer awaits an answer to his question.
The Washington State DUI attorneys at Fox Bowman Duarte are well educated in the science of DUI field sobriety tests and will challenge the use of the DUI field tests in court.
