When a person is stopped by a law enforcement officer for suspicion of having driven while under the influence (DUI) or intoxicated (DWI), the officer will often ask that the driver perform a series of “field sobriety tests.”  These tests were established in 1982 by the National Highway Traffic And Safety Administration (NHTSA) as a way to impose (in theory, at least) some measure of uniformity and consistency in determining whether a person has been driving under the influence.

Officers are supposed to be trained under the standards imposed by the NHTSA for the administration of the field sobriety tests.  The three tests are the one legged stand, the “walk and turn”, and the horizontal gaze nystagmus (HGN).

A person’s refusal to submit to the tests can have adverse impacts on one’s driving privileges.  A person’s alleged “failure” of one or more of the tests can mean an immediate arrest for DWI.  Although this may sound like a simple matter, in practice it is not. Whether a person refused a test, and whether a person failed a test, is the subject of much intense litigation in DUI or DWI cases.

What constitutes a “refusal” to do the tests?  How is “refusal” measured?

How did the officer decide if a person “failed” a field sobriety test?  Was the test administered in a fair manner?  Were all requirements of the NHTSA strictly adhered to by the testing officer?  These are key questions.  Quite often, the police report and the officer’s dashcam video of the incident can reveal details which cast doubt on whether the officer performed the tests correctly.  The tests are very difficult to complete even when one is sober, a fact that often raises the issue of whether a person given them is simply being set up for failure.

In addition to the three tests described above, there are some non-standard tests that are sometimes given as preliminaries by an officer to a motorist suspected of DWI.  Reciting a string of numbers, reciting the alphabet backwards, the “Rhomberg stationary balance” test (where a person stands with his feet together and looks upward while his arms are out to the side), or the finger-to-nose test are also occasionally given.

The one legged stand test, one of the three official NHTSA tests, is a “divided attention test” supposedly designed to measure coordination and balance.  The test person stands with one leg raised for a specific amount of time with his arms extended.  To complete the one-leg stand test, you must stand with one foot approximately six inches off the ground with your toe pointed. While maintaining perfect balance, you have to count by thousands (one thousand-one, one thousand-two, etc.) for thirty seconds. Your arms must remain at your side. Finally, you must look down at your foot. While you are completing this test, the police officer will observe you for the presence of indicators of impairment, which are called “clues.” If the police officer concludes that you exhibit two or more “clues”, the officer may score you as having “failed” the test. The indicators can include the following: (1) putting your foot down before the test is completed; (2) swaying while trying to maintain your balance; (3) hopping while trying to maintain your balance; and (4) using your arms to help maintain your balance.  While these things may be easy to state, they are not easy to decide in practice.  At administrative hearings on these tests, the attorney for the person accused of DWI can fight the scoring and results of these tests.

Were the weather conditions favorable?  Did the person have any injuries or physical impairments?  How did the officer score the “clues”?  Was the ground level and uniform?

In the “walk and turn” test, a person is instructed to take nine steps in a heel to toe fashion along a supposed “straight” line.  The officer scoring the test will check to see if the person is stepping off the line, uses the correct number of steps, or shows balance or other impairment “clues.”  Again, things here are not as simple as they appear.  Was the test given under the correct conditions?  Were the standards of NHTSA followed?  Did the person have any physical impairments, medical problems, or conditions?  Was the test scored correctly?

The third test, the horizontal gaze nystagmus (HGN) is another test supposedly designed to evaluate intoxication.  The officer usually positions a finger or pen about a foot from a person’s face and moves it from side to side.  He observes the person’s eye movements.  The idea here is that involuntary jerking movements in the eye are supposed to be indicators of intoxication.  Despite the supposed accuracy of this test, the ability of a non-medically trained police officer to judge nystagmus has been called into question.  And this is why many states do NOT permit the results of this test to be used in court.

Alcohol-related driving offenses are serious and complicated matters.  There is both a criminal charge and an administrative hearing (regarding driving privileges) that go with these cases.  If you have been accused of an alcohol-related driving offense, you need to contact an attorney without delay so that your rights are protected in a timely fashion.

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