Should I Consent to Performing the Standardized Field Sobriety Tests?
My advice to people who ask this is, “Don’t be a hero.” Many individuals, undoubtedly filled with a certain level of hubris, believe that they can beat the field sobriety tests. I have sat across from more individuals who thought this and failed than those who had thought this and had succeeded. Many people believe when prompted by police to take field sobriety tests, that they are under an obligation to actually perform the field sobriety tests. This could not be farther from the truth. You are not under any obligation to perform field sobriety tests. If anything, it is more likely that you do more to hurt your case. Everything you do, from how you speak to how you act is a building block for a future state’s attorney to build their case against you. By agreeing to perform field sobriety tests, you are essentially handing all the blocks over to the state and allowing them to use each block indiscriminately rather than limiting what pieces they are allowed to use.
Field Sobriety Tests (FSTs) were originally put into place by the National Highway Traffic and Safety Administration, or NHTSA. There are three separate tests that are most commonly used, but it does provide for a few others which are not normally used in the field. If you agree to participate in FSTs, you are more than likely going to be asked to perform a Horizontal Gaze Nystagmus Test, a Walk and Turn Test and a One-leg Stand Test. The Horizontal Gaze Nystagmus Test, or the HGN test, is to determine whether or not your eyes exhibit nystagmus or shaking at the very edges of your vision. If an individual is suspected to be under the consumption of drugs, an officer may elect to utilize a Vertical Gaze Nystagmus Test, or VGN. The officer will hold out either a pen or their finger about six inches away from your nose and ask you to focus on the point of this pen or on the tip of their finger. They will then make several passes from one side to the other in order to check both of your eyes and hold the position at the outer edges of your sight to determine whether or not your eyes exhibit nystagmus or shaking at the very edge. Failure of this test is relatively inconsequential when compared to the other two. The Horizontal Gaze Nystagmus and the Vertical Gaze Nystagmus only show that the individual has consumed alcohol or drugs, but they do not allow for the officer to make a declaration that the individual is intoxicated.
The other two tests, however, will help an officer determine whether or not an individual is intoxicated. The first of these is the Walk and Turn Test. The officer will instruct an individual over to an area with a painted line in the pavement, sidewalk or whatever it is available and ask the individual to imagine a line in the ground. They will ask the subject to place one foot in front of the other, heel to toe, while placing both hands at their sides and hold this position while the officer gives the instructions. The subject is then asked to take nine heel to toe steps along the line, and on the ninth step, take tiny steps in a half circular motion and take nine heel to toe steps back all while not raising their arms, not breaking heel to toe and not stepping off the line. If you start before the officer finishes his instructions, raise your arms too high to keep balance, break heel to toe, or step off the line, that’s a clue. If you were to do all of the things that I just listed during Walk and Turn examination, you would have failed the test.
In the One-leg Stand Test, you are instructed to stand up straight with your feet together and raise whichever foot off the ground that you are most comfortable with. You are then instructed to stare at the tip of your toe and count to 30. Breaking count, putting your foot down, swaying or hopping around, or raising your arms from your sides are all indicators that can cause you to fail the test. When agreeing to perform field sobriety tests, you have very little to gain, but everything to lose. I would highly advise that you refuse to perform them. It’s important that you understand, that by refusing to perform field sobriety tests, you are giving the officer cause to arrest you. However, in most instances, when an officer asks you to perform field sobriety tests, it is already highly likely that you’re going to be arrested. The difference is that by refusing to perform field sobriety test, you make the subsequent court case extremely difficult to prosecute, because the state’s attorney relies very heavily on the results of field sobriety tests to justify a potential guilty conviction against you.
If an officer asks you to perform field sobriety tests, you very calmly and politely tell them on advice from an attorney, I will not be submitting to field sobriety tests. The downside is that you will definitely be arrested, but the upside is that it makes it very difficult for a future state’s attorney to obtain a guilty verdict against you due to lack of evidence in your individual case.