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What to Do If You Get Pulled Over Part 4: Standardized Field Sobriety Tests

Field Sobriety Tests

I will begin this post as I will begin many others; please don't drink and drive.  It's stupid and REALLY expensive if you get caught, not to mention you might kill someone.  DON'T DRINK AND DRIVE.  That being said, here's some tips on what you can do if you get pulled over and the officer could suspect you of drinking.

Well, you've made it through the stop and the initial conversation, but somewhere, you messed up. The police officer is now asking you to step out of the car to do field sobriety tests.  Here is what to expect and what the real tests are.

1. The first test is not something listed, it is how you get out of the car.  Remember that checklist we talked about? Stumbling to get out of the car/using the car for balance is one of those things.  Put both feet down, and step calmly and confidently out of your car without using the car to keep your balance. 

2.  There are several things you should do before beginning the field sobriety testing.  First, take an in depth look at your surroundings.  Is the road even?  Is it covered in gravel?  What's the weather like?  Are you cold, hot, or is it raining?  Is the road you are on seeing a lot of traffic?  All of these things can help your attorney mount a case against the accuracy of the field sobriety testing.  Secondly, before the tests, you should inform the officer of anything that might impact your ability to take the tests.  Do you have a speech impediment?  A limp or disability?  Eye problems?  A fever? Are you too cold outside your car? All of these things can significantly impact your ability to take the standardized field sobriety tests and while the cop probably doesn't care, you need to put this information out there so your attorney has something to question the officer about and provide an explanation as to why you couldn't walk a straight line.

3.  No one passes these tests, but do not ever say "I probably couldn't pass these tests if I were sober!" or anything like that.  See previous posts about shutting your mouth.  The four tests you will be asked to endure are the horizontal gaze nystagmus test (HGN), the walk and turn, the one leg stand, and finally, the portable breath test, or PBT.  These tests are designed so you will fail them.  I will post at length about the scientific problems with these tests in the future, but here is a brief synopsis of what to expect and what is actuall being tested.

4.  The horizontal gaze nystagmus (HGN) test.
    Although this test has a difficult name, it has an even more difficult application.  According to the National Highway Traffic Safety Administration (NHTSA), the agency that came up with these tests and whose book is the training manual for all officers using this test, the HGN test measures the "involuntary jerking of the eyes occuring as the eyes gaze toward the side."  This is measured by the officer making you follow a fixed point (often a penlight) with your eyes without moving your head.  The thought is, if your eyes twitch while tracking the object, you must be drunk. Here, the officer is looking for three clues: the lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and the onset of nystagmus prior to 45 degrees.  This test's accuracy is dubious in nature, as it is very difficult for even a well-trained officer to accurately know when the object you are tracking is at 45 degrees.  It is so unreliable, that courts throughout the United States (and even the legislature in Missouri) have made the HGN test inadmissible to show the degree of impairment, only to show probable cause.  The main thing to keep in mind here is smooth pursuit. 
    Also, try to note if there are any passing cars while you are performing this test.  Nystagmus falls under three different categories, neural (what your brain is telling your eyes to do), vestibular (what the rest of your body, like the inner ear, is telling your eyes to do), and patholigical disorder nystagmus (what a disorder, like a brain tumor, is telling your eyes to do.)  Police are looking for neural nystagmus, which may be caused by alcohol consumption, but can also be caused by "the eyes fixat(ing) on an object that suddenly moves out of sight," like passing cars. This type of nystagmus is referred to as optokinetic nystagmus and is indecipherable from alcohol induced nystagmus when cars are passing behind the stimulus (penlight).

5.  The walk-and-turn test.  
    You may think this is just a test to walk a straight line, and that is certainly the appearence of the test the officer will offer you, but they are in fact testing much more than that.  The test begins by the officer instructing you to put your left foot on a line, to put your right foot on the line agead of the left foot with heel of the right foot against the toe of your left foot, place your arms at your sides, and maintain this position until I have completed the instructions.  He will also demonstrate all of the things he just showed you.  Little do you know, the test has already started!  There are several things the officer is looking for during the "instructions" part of the test.  If you interrupt the officer, even to ask a question about the instructions, you just showed a clue of intoxication.  If your feet come apart or you raise your hands above a few inches from your waist during this portion, you just showed another clue of intoxication.  If you sway while waiting for the instruction to start, you just showed a clue.  Finally, if you begin the test before explicitly being told to begin the test, you just showed a clue.  The NHTSA says that if you show two or more "clues" of intoxication during this test, you have failed the test, so you can fail before you are asked to even walk! Remember this and act accordingly.
    After the "instructions" phase, the officer will demonstrate and tell you to walk nine steps, turn BY KEEPING YOUR FRONT FOOT ON THE LINE AND TAKING A SERIES OF SMALL STEPS WITH THE OTHER FOOT, and take nine steps back, counting each step aloud and not stopping until the test is completed.  That portion is put in caps for a reason, as no sane person turns around like that.  If you do a simple about-face at the end of the line, you just showed another clue. Instead, you must keep your toe on the line, then walk, like a lunatic, in a small circle taking several steps with only one foot until you have turned 180 degrees while keeping one toe in place the whole time.  If you turned like a normal person, you just showed a clue.  If your arms leave your sides, you just showed a clue, if you stop, even to ask a question, you just showed a clue.  If your feet don't touch heel to toe, you just showed a clue.  If you step off the line, you just showed a clue.  Hardly anyone passes this test, primarily because of the hidden tests within it, but now that you are armed with the information of what is actually being tested, hopefully you can do well enough to stay out of jail.

6. The one leg stand.  
    The officer will now tell you to stand with your feet together and your arms down at your sides, and to not perform the test until you are told to.  He will then tell you to raise one leg off the ground approximately six inches but parallel to the ground, both legs straight, arms at your side the whole time, look at your foot, and count out loud in the following manner "one thousand one, one thousand two, one thousand three UNTIL TOLD TO STOP."  Notice caps again there?  That's because this is where even the most straight laced teetotaler would fail the test.  Most people count one thousand one, one thousand two, and so on until they get to around 12, figure that is sufficient, and drop their foot.  That person just showed two clues of intoxication and is on their way to jail.  What the officer does not include in the instructions is that you have to count to THIRTY!  Not only is it very difficult to remain in that position for thirty seconds, you are never told to do so.  Instead, you are just told to count out loud until being told to stop, which most people ignore, and then both put their foot down and stop counting (both of which are clues) after a reasonable amount of time has passed.  As noted previously, it is also a good idea to take note of any conditions that may affect your ability to perform the test.  The wind, the temperature, the shoes you are wearing, and even a headcold can seriously affect your ability to pass this test.  Let your attorney know of all of these conditions.

7. The portable breath test (PBT)
   
 If you have shown any "clues" of intoxication on the field sobriety tests, (which you have, no matter how well you think you have performed), then the officer will then ask you to take a portable breath test.  Depending on the manufacturer, these do not detect your actual blood alcohol content, merely the presence of alcohol. They are also notoriously unreliable, and in Missouri, (like the HGN) are inadmissible except to prove probable cause.  You will also likely be told at this point that refusal to blow is a crime that you will be prosecuted for.  Do not confuse this with a refusal to blow into the evidentiary device back at the station.  Refusal to blow into a big breath machine like a Datamaster or Intoxilyzer is an automatic licence revocation (which can be fought, call an attorney if you have refused to blow within 15 days to get your licence back) but refusal to blow into a PBT is a non-moving violation which is not nearly as big of a deal.  I cannot advise you whether you should blow or not, but I can say that if you are likely headed to jail anyway, there is no reason to continue to build a case against yourself if the only cost is a non-moving violation.

    Assuming you have completed all these steps flawlessly, then hopefully you are well on your way, but you're probably still going to get arrested (remember, the tests are designed to fail).  If so, read the next posting of what to do after you've been arrested. 
      If you have been arrested and/or charged with a DUI/DWI in Branson, Nixa, Ozark, Springfield, Greene County, Chrisitan County, Taney County, Stone County, or anywhere in the surrounding area of Southwest Missouri, please schedule a free consulation today by calling (417) 334-6316 or by clicking "Contact Us" above.

Joshua Garrett
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