For most motorists, the sight of flashing lights in the rear view mirror is not a welcome sight. But if you enjoyed a drink or two before getting behind the wheel, those flashing lights can signal much more than a mere traffic ticket. Although we all know by now what the potential consequences are if we are caught drinking and driving, people continue to do it. If you find yourself on the side of the road in the middle of a driving under the influence (DUI) investigation, there is a very good chance the officer will ask you to perform a series of field sobriety tests (FSTs). You have undoubtedly watched as extremely intoxicated people try to perform these tests on one of the numerous law enforcement reality television shows. They may be humorous to watch from the comfort of your living room; however, if you find yourself facing a series of FSTs, it may not be as funny. Moreover, what you don’t know about the tests could hurt you in the long run. With that in mind, an Omaha DUI lawyer explains what you need to know about the field sobriety tests.
You Can Say “No”
Contrary to what most people believe, you can decline to perform the FSTs – and doing so cannot be held against you. In fact, whether you agree to perform the tests or not, and whether you pass the tests or not, cannot be introduced into evidence at trial. The results of the FSTs can, however, be used to establish the probable cause needed to arrest you and charge you with DUI.
Standardized Field Sobriety Tests
Another thing you may not know is a law enforcement officer can, in theory, use any FST he/she chooses. The three most often used – and that you have likely seen on television – have been approved by the National Highway Traffic Safety Administration (NHTSA). The fact that the NHTSA has sanctioned these three makes them more credible in court which is why they are most commonly used. However, an officer may use other FSTs if department policies allow.
The 3 Standardized FSTs
The following three FSTs have been sanctioned by the NHTSA:
- Horizontal Gaze Nystagmus (HGN) — Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs as the eyes gaze to the side. Nystagmus occurs under normal conditions if you look to the side and up, but if you have been drinking, it will also occur when you simply look to the side, particularly if you are attempting to track an object with your eyes. The HGN test, in fact, involves having the suspect track a penlight or other small object from the front of the subject’s face to one side and back again for indications of impairment. If the eyes start to twitch, the officer will consider that a sign of impairment. Specifically, the officer will be looking for three indicators 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; and
- 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. A 1998 validation study found this test allows proper classification of approximately 88 percent of subjects. HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.
- Walk-and-turn – a suspect is told to take nine steps, touching heel-to-toe, along a straight line. At the end, the suspect must turn on one foot and return in the same manner in the opposite direction. Eight indicators of impairment are used:
- Failure 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
- Makes an improper turn
- One-leg stand test — the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by ones beginning with one thousand until told to put the foot down after 30 seconds. Four indicators of impairment are used:
- Swaying while balancing
- Using arms to balance
- Hopping to maintain balance
- Putting the foot down
Talk to Your Omaha DUI Lawyer about the FSTs
If you agreed to perform the FSTs during a recent DUI stop, talk to your Omaha DUI lawyer about your performance, especially if you thought you performed just fine but were told you failed. Because the results are subjective, few motorists who are asked to perform the tests actually pass. While the results are not going to be used against you at trial, your performance could still be an issue as it relates to the overall stop and arrest.
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 DUI defense attorney.
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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