Although every driving under the influence (DUI) investigation involved a unique set of facts and circumstances, there are some steps that are common to almost all DUI stops. The request to consent to performing field sobriety tests (FSTs), for example, is something that occurs in most DUI investigations. If you find yourself in the middle of a DUI investigation for the first time, you will likely be too nervous to stop and think about much of anything, including whether you can, and whether you should, refuse to perform the FSTs. Gaining more insight into how FSTs work, and specifically learning what constitutes a “failure,” may make you more inclined to decline to perform the FSTs if you are ever stopped for DUI. With that in mind, a Cass County DUI lawyer discusses field sobriety test basics and explains what with cause you to fail them.
Field Sobriety Test Basics – Are They Mandatory?
Like many people, you may be under the impression that you are required to perform FSTs if asked to do so by a law enforcement officer. The truth, however, is that there is no legal requirement making your performance of the FSTs mandatory. The Nebraska Implied Consent law imposes sanctions if you refuse to submit to a chemical test after your arrest; however, the law does not impose sanctions for refusing to perform the FSTs. Moreover, the results of the FSTs are not admissible in court; although, the results can be used to provide the probable cause necessary to arrest you. In short, you have very little gain and much to lose by agreeing to perform the field sobriety tests.
Cass County DUI Lawyer Explains “Failure”
The most commonly used FSTs are three that have been sanctioned by the National Highway Traffic Safety Administration (NHTSA). The following provides a description of each along with what officially constitutes a failure for each test:
- The Horizontal Gaze Nystagmus (HGN) Test: Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes. Failure: The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct and sustained nystagmus when the eye is at maximum deviation, or if the angle of onset of jerking is prior to 45 degrees of center. The subject is likely to have a BAC of 0.08 or greater if, between the two eyes, four or more clues appear.
- Walk and Turn Test — the subject is directed to take nine steps, touching heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The officer is checking for balance, coordination, and the ability to follow directions in this test. Failure: The examiner looks for eight indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, uses arms to balance, steps off the line, takes an incorrect number of steps, or makes an improper turn. Two or more indicators equals failure.
- One Leg Stand Test — the subject is instructed to stand with one foot approximately six inches off the ground and count aloud by ones beginning with one thousand (one thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for 30 seconds. This test also looks for balance, coordination, and the ability to follow directions. The officer looks for four indicators of impairment including: swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. Two or more indicators equals failure.
Contact Us
If you have been charged with driving under the influence, or DUI, in Nebraska contact the Petersen Law Office 24 hours a day at 402-513-2180 to discuss your case with an experienced Cass County DUI lawyer.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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