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Field Sobriety Tests

Suppose you are pulled over by a police officer in California on suspicion of driving under the influence (DUI). In that case, the officer may ask you to submit to a series of field sobriety tests (FSTs).

These are a series of physical and cognitive examinations conducted by law enforcement officers on individuals suspected of driving under the influence.

Field Sobriety Tests in DUI Cases
Field sobriety tests are a series of physical and mental exercises used by police in DUI cases.

The primary aim of these tests is to assess impairment and determine whether a person's ability to drive has been compromised by alcohol or drugs. While FSTs may seem harmless enough, especially if you're sober, these tests are not foolproof, and many factors can cause even sober people to fail them.

Moreover, an officer can still arrest you on suspicion of DUI even if you pass the FST, so in many cases, it's in your best interest, and your legal right), to politely decline to take one.

Simply put, field sobriety tests (FSTs) are physical and mental exercises that law enforcement officers will administer in DUI investigations. A poor performance on FSTs is believed to be a valid sign of impairment from alcohol or drugs.

Thus, police heavily rely on them to decide whether to arrest someone for allegedly driving under the influence, as defined under California Vehicle Code 23152 VC. However, the accuracy of FSTs is often challenged by experienced DUI lawyers.

When correctly administered by police, the three standardized field sobriety tests that are reportedly the most accurate for determining .08% blood alcohol content (BAC) are the horizontal gaze nystagmus (HGN), walk-and-turn, and the one-leg stand tests.

Notably, in California, field sobriety tests are optional. This means you can decline to take them without facing any penalties. Further, sober drivers could fail FSTs for reasons having nothing to do with their blood alcohol content. Here's what you need to know if you're asked to submit to a field sobriety test in California.

What Are the Types of Field Sobriety Tests?

The National Highway Transportation Safety Administration (NHTSA) is a federal agency that lists the standards of DUI field sobriety testing. FSTs are broadly categorized into two types: standardized and non-standardized.

Standardized Tests 

Standardized Field Sobriety Tests (SFSTs) are a set of three tests that are universally accepted and validated by the NHTSA, including the following:

  • Horizontal Gaze Nystagmus (HGN) Test: An officer observes the eyes of the person as they follow a slowly moving object, such as a pen or flashlight, horizontally. Involuntary jerking of the eye can be an indication of impairment.
  • Walk-and-Turn Test: This test evaluates a person's ability to complete tasks that require divided attention. The individual is asked to walk heel-to-toe in a straight line, turn around, and then return similarly. 
  • One-Leg Stand Test: Here, the individual must stand on one foot while counting aloud until instructed to stop. This test gauges balance and concentration.

Non-Standardized Tests

Non-standardized field Sobriety Tests (NSFSTs) are less formal and more subjective in their results. These may differ from jurisdiction to jurisdiction, but they may also be used by law enforcement during traffic stops. Examples include, but are not limited to:

  • The Hand-pat Test: This test requires the suspect to pat their hand, alternating between the front and back of their hand while counting aloud.
  • The Rhomberg Balance Test: In this test, the suspect is asked to stand with feet together, tilt their head back slightly, close their eyes, and estimate the passage of 30 seconds. Officers observe for signs of impairment such as swaying, opening eyes, or inability to estimate time accurately.
  • The Finger-to-Nose Test: The suspect must stand with their feet together, tilt and close their eyes, and then touch the tip of their finger to the tip of their nose while keeping their head still.
  • The Finger Count test: The police officer will instruct the DUI suspect to put one hand in front of them with the extended palm facing upward and have the top of the thumb separately touch the tip of the index, middle, ring, and little finger, and count “one, two, three” to each finger-thumb connection, and then reverse the process for three sets.

What Are the Consequences of Failing?

If a person fails an FST in California, it can lead to their arrest on suspicion of DUI. This failure could be used as evidence against them in court and potentially result in penalties such as fines, license suspension, mandatory DUI education programs, probation, and even jail time.

What Are the Problems with FSTs?

Suppose you're pulled over on suspicion of DUI, especially if you haven't indulged. In that case, you may be tempted to submit a field sobriety test to erase suspicion. However, submitting to an FST is rarely in your favor. Here's why:

  • Test inaccuracies. FSTs are not proven scientifically accurate. The NHTSA has validated the three standardized tests based on field research. Still, despite their claims that these tests have between a 79-88 percent accuracy rate in detecting impairment, these numbers are dubious at best and don't account for other variables. The non-standardized tests have even less proof of accuracy.
  • False positives are common. Many other factors can cause you to fail the FST, ranging from weather conditions, physical ailments, or even what you wear.
  • Officer errors. Police officers might incorrectly administer or interpret FSTs due to a lack of training or missteps in the procedure, leading to inaccurate results.
  • Officer bias. In many cases, the officer has already decided whether or not to arrest you before administering the FST, and they're conducting the test only to validate their opinion and provide more proof. (Some have even suggested that FSTs are designed for failure.)
  • The results of a failed FST can be used against you in court. While FSTs aren't scientifically proven, they're still admissible as evidence, meaning if you fail one, your attorney will have to try and disprove it.

What Are the Common DUI Charges?

If you are arrested for driving under the influence in California, you will likely face at least one of the charges below:

  • Vehicle Code 23152(a) VC – driving under the influence,
  • Vehicle Code 23152(b) VC – driving with a BAC of 08% or higher,
  • Vehicle Code 23152(f) VC – DUI of drugs (DUID),
  • Vehicle Code 23140 VC – underage DUI.

Can I Legally Refuse to Submit to a Field Sobriety Test?

Yes, you have the legal right to decline a field sobriety test, and you cannot be charged with a crime simply for refusing one.

Bear in mind that the officer may still opt to arrest you if they suspect DUI, at which point you will be legally required to submit to a breathalyzer or blood test because of "implied consent" laws for being a licensed driver.

However, by politely declining to take the FST, that evidence does not exist and, therefore, can't be used to prove intoxication. Contact our law firm for a case review. Eisner Gorin LLP has offices in Los Angeles, CA.

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