Failing to fight Field Sobriety Testing in a DUI Trial

The Field Sobriety Tests ("FSTs") are a series of physical and mental exercises that police give to subjects that they suspect might be driving under the influence of alcohol or drugs. Performance on the tests is one of the factors police, prosecutors and courts consider in a decision of whether a driver was under the influence of alcohol or drugs at the time of driving.

Field sobriety tests (FSTs) are generally categorized as "standardized" FSTs (or SFSTs), or "non standardized". In California DUI cases, all FSTs are voluntary, and you can refuse to perform them.

For those that did perform FSTs, at trial they are typically used to show impairment, but the defense can often use the field sobriety tests to show that the officer performed testing incorrectly, or to bring out problems with the investigation stage of the DUI as a whole.

The following are seven areas that many attorneys without DUI Defense training and experience usually miss at trial:

1. Failure to point out the location of the testing.
Our Orange County DUI Attorneys always visit the scene where field sobriety testing was given. Most of the time, these tests are done on the shoulder of the highway or road, which are sloped or slanted surfaces, and often have rocks, or gravel. They are designed that way to allow water drainage, but that makes them insufficient for balance testing, like field sobriety tests.

2. Failure to object to the walk and turn and one leg stand tests when clients have any physical impairments. The HNTSA manual explicitly states that the walk and turn, and the one leg stand tests, are not to be given where any of the following exist:
• A client has any physical impairment which affects the ability to balance. Ankle, knee, hips, or neurological or ear issues can affect balance.
• Any testing subject that is 50 or more pounds’ overweight.
• Any testing subject that is over 60 years old.
Tests where any of these exist are invalid, per the instructions for the tests themselves.

3. Failure to note the inaccuracy of the standardized field sobriety testing.
The National Highway Traffic Safety Administration (HNTSA) developed the three tess that make up the standardized sobriety tests. Those are:

1. The Walk and Turn test;
2. The One Leg Stand test; and
3. The Horizontal Gaze Nystagmus test.

The NHTSA’s own validation studies showed that the one leg stand cannot be used to correctly predict a BAC above the legal limit in 65% of the test subjects.

4. Failure to make a pretrial motion to object to the prosecutor referring to the tests as “field sobriety tests”.
In cases where the client has a jury trial, allowing the tests to be referred to as “sobriety” test before the jury to hear the facts has the affect of giving them undue credibility and is suggestive of a finding of intoxication, and thus prejudicial.

Likewise, failing to object to all the sobriety tests as not relevant, and unduly prejudicial to the defendant, is a strategic good move. The officer doesn’t know how a driver he or she has never met before would perform sober vs intoxicated, and so they are not relevant. Even in the way they were designed, is to assist officers in determining whether to arrest, not as substantive evidence at a trial.

5. The Horizontal Gaze Nystagmus test is not a scientifically valid test for intoxication.
The test that uses a pen or flashlight to follow eyes and note tracking, is used to look for the involuntary jerking of the eye that occurs when a person is under the influence of alcohol.

According to NHTSA, normal sober people have nustagmus at high angles, especially at the extreme left or right. However, the stodies seem to show that those who are impaired by alcohol have flutter or jerkiness in tracking at 45 degres.

In conducting this test, the officer usually instructs a driver to keep his or her head still, and looks for whether or not the eye cannot smoothly follow the pen, there is distinct jerking at maximum deviation, and whether the jerking is present at 45 degrees.

Most officers keep going to extremes until they see jerking or flutter. However, this test, as a neurological or scientific test, requires the prosecution to meet the burden of establishing its admissibility.

Even when HGN exists, the officer cannot conclude that alcohol caused those reactions, given all the other known causes of HGN. Caffeine, lack of sleep, and dizziness from an accident can cause nystagmus.

6. Any and all non-standardized field sobriety tests are invalid.
The finger to nose, counting backwards, reciting the alphabet, are invalid, non standardized field sobriety tests. They do not have any scientific studies justifying their use or any conclusions. As a result, they have no place in a court room or trial.

Challenging these parts of the field sobriety testing testimony of a police officer can be a key to discrediting the conclusion of intoxication, and this winning a not guilty in a DUI case, or a dismissal of a DUI case. Our Orange County DUI Lawyers have had great success at trial and in motions in excluding or severely limiting the field sobriety testing that are always used by the police and prosecutors to “prove” intoxication in a drunk driving case.