Field Sobriety Exercises

If you performed a field sobriety exercise before being arrested on a Florida DUI / DWI charge, the arresting officer will almost always write in the “field sobriety report” that you failed. Even specially trained DUI officers sometimes evaluate field sobriety tests inaccurately. That’s why having skilled Florida DUI / DWI attorney on your side is critical to your defense. We’ll use proven skills and techniques to demonstrate that your performance on a field sobriety test doesn’t prove impairment, or that the test itself wasn’t conducted properly and is therefore invalid. Reducing the evidentiary impact of your field sobriety test results is sometimes the difference between dismissal and conviction in a Florida DUI / DWI case.

Here are some excellent reasons to entrust the defense of your Florida DUI / DWI case to the Law Firm of Ron E. Sholes:

• We will work as a team to create the most effective defense strategy for your Jacksonville, Orlando, or Gainesville Florida DUI / DWI charge. In many cases you will meet with not only the primary attorney handling your case, but also our investigator and other attorneys as well.
• Our in-house investigator will review your Florida DUI / DWI case to ensure that every angle of investigation has been covered. Our investigator may even travel to the location of your drunk driving arrest occurred.
• Our Florida DUI / DWI attorneys receive the same field sobriety test training given to DUI enforcement officers – an intensive 24-hour course of instruction from the National Highway Traffic Safety Administration (NHTSA).
• Many of our Florida DUI / DWI attorneys are certified as field sobriety instructors by completing a rigorous 40-hour FSE instructor training course.
• One of our attorneys is a former prosecutor who has obtained hundreds of misdemeanor and felony Florida DUI convictions and brings a unique “prosecutor” perspective to our drunk driving defense.

What exactly are FSEs?

Field sobriety exercises (FSEs) are a common law-enforcement tool used in Florida DUI / DWI investigations. FSEs are divided-attention tests - they require concentration on more than one task simultaneously – that are designed to assess physical and/or mental impairment from alcohol and/or drug use.

Field sobriety tests are thought to be adequate assessors of impairment because alcohol affects our ability to divide our attention, causing drivers to concentrate on more difficult tasks while ignoring simpler ones. It’s possible to focus on a single task even when impaired, but most individuals can’t concentrate on simultaneous tasks while under the influence of alcohol or drugs.

Jacksonville, Orlando, and Gainesville, Florida DUI / DWI attorney Ron Sholes and his associates understand that one of the key elements of drunk driving defense is to shift the focus onto any mistakes made by the arresting officer in administering and evaluating your field sobriety test.

The field sobriety tests used in Florida DUI / DWI investigations are designed to evaluate the mental and physical capabilities needed to safely drive a motor vehicle. The tests are intended to measure things such as information processing; judgment and decision-making; balance; short-term memory; reaction time; clear vision; small-muscle control; and coordination.

The problem with the field sobriety tests used in Florida DUI / DWI investigations is that people do not do these tasks regularly. Fortunately, this means that it can be easily demonstrated to most jurors that the exercises can be challenging even for individuals who are not impaired.

There are three standardized field sobriety tests used in Florida DUI / DWI investigations – the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. These three tests are standardized by the National Highway Traffic Safety Administration (NHTSA) because they have precise instructions and an objective scoring system.

So, are FSEs accurate?

If the arresting officer didn’t correctly administer or evaluate your field sobriety test, the validity of the results may be compromised. The arresting officer was supposed to be following NHTSA guidelines, so it is imperative that his or her administration of the exercises be exploited by your DUI attorney.

Extensive research has been conducted on field sobriety tests by the Southern California Research Institute (SCRI), sponsored by NHTSA. Based on these studies, the federal government has concluded:

• The walk and turn test is only 68 percent reliable in detecting drivers with unlawful blood alcohol levels;
• The horizontal gaze nystagmus test has been shown to be only 77 percent effective in detecting drivers who are under the influence;
• The one-leg stand test has been shown to be only 65 percent reliable in detecting drivers with unlawful blood alcohol levels;
• Any test given to you other than the above three, (i.e. “alphabet test” or “finger to nose test,”) is not standardized by the NHTSA and there are no studies to demonstrate their effectiveness.

These conclusions were reached testing individuals with no known medical conditions under ideal circumstances. The SCRI-NHTSA study conceded that not having ideal testing conditions would further reduce the percentage of reliability of results. Your Florida DUI / DWI attorney should take every advantage to show that the testing conditions and your medical history could have further affected the outcome of your field sobriety test.

HORIZONTAL GAZE NYSTAGMUS (HGN) (The Eye Test)

The horizontal gaze nystagmus test is considered the most reliable field sobriety test, but this is the most difficult test for a DUI officer to administer, and the one they most often get wrong. However, it takes a DUI attorney who thoroughly understands the administration of this test to understand where the officer went wrong.

Nystagmus is the involuntary jerking of the eye as it moves from side to side. Although it occurs in everyone, nystagmus becomes much more noticeable as an individual’s blood alcohol content (BAC) increases. This exercise counts for one-third of all field sobriety tests. is considered the most reliable of the FSEs.

Police administer the horizontal gaze nystagmus test by holding a stimulus (usually a pen) 12-15 inches away and asking you to follow the stimulus with you eyes only – you cannot move your head. The officer should have you move your eyes from the center to the side in approximately two seconds, then two seconds back to center, approximately two seconds to the other side, and two seconds back to center.

The officer will always start with the left eye, and will be looking for three specific clues:

• Lack of smooth pursuit: The officer will be watching for any jerking or bouncing of the eye that can be compared to windshield wipers jerking across a dry windshield.
• Distinct nystagmus at maximum deviation: When the eye moves as far to the side as possible and is kept in that position for several seconds, is there distinct jerking (bouncing) of the eye. The eye is to be moved all the way to the side, and kept there a minimum of four seconds. Interestingly enough, some people exhibit slight jerking of the eye at maximum deviation even when unimpaired. Also, if the eye is moved to the side too quickly, this may cause nystagmus, thereby invalidating the results.
• Onset of nystagmus prior to 45 degrees: As the eye moves towards the side, does it start to jerk or bounce before it reaches a 45-degree angle? When moving the eye out to 45-degrees it is important to take the full four seconds when checking for onset. If the stimulus is moved to fast, the officer could take your eye beyond 45-degrees, or if the eye is move to 45-degrees too quickly, this may cause the nystagmus, thereby invalidating the results!

The total number of clues that the officer can find in each eye is three, for a total of six clues. Studies have shown that the driver is under the influence if four or more clues are present. However, certain medical conditions can contribute to nystagmus, and most police officers fail to recognize that fact. Strobe lights, traffic signals and other distractions can also contribute to nystagmus. In fact, the horizontal gaze nystagmus test is accurate only 77 percent of the time, which means it is inaccurate 23 percent of the time.

WALK AND TURN TEST

The walk and turn test is a divided-attention test that occurs in two stages – the instructional phase and the performance phase. While the officer is delivering the instructions, the driver must stand with the right foot directly in front of the left foot, heel and toes touching, and with arms down. The instruction portion of the test takes at least 45 seconds to complete. Even though this position is extremely awkward, if you used your arms to balance at any time, it was viewed as a sign of inebriation.

Once the instructions have been given, the driver is instructed to take nine heel-to-toe steps, turn, and take nine hell-to-toe steps back in the same direction. The test must be performed along an actual or imaginary line. The driver must count the steps out loud while performing the test. The walking phase divides a person’s attention between keeping their balance, counting out loud, taking the proper number of steps, tuning in the prescribed manner, while keeping their arms at their side.

While the driver performs the test, the officer is watching for eight “clues” of intoxication:

• Beginning the test too soon;
• Inability to maintain balance;
• Stopping during walking phase;
• Taking the wrong number of steps.
• An inability to touch the heel to the toe;
• An inability to walk along a real or imaginary line;
• Using the arms for balance;
• Losing balance on turns, or turning incorrectly;

Studies have shown that the driver is likely intoxicated if two or more of these clues are present during the walk-and-turn test. However, we have done our own research and found that there are more than 100 opportunities for police to “find” two clues.

For example, missing just one heel-to-toe step by half an inch constitutes a “clue” of impairment, and you have 18 opportunities to do so. You could show four “clues” – twice as many as allowed – and have 96 percent accuracy, or a grade of an “A.” This is why the walk-and-turn test has been shown to be accurate just 68 percent of the time; which means it is inaccurate 32 percent of the time.

ONE-LEG STAND

The one-leg stand test is divided into two distinct parts – the instruction phase and the balance and counting phase. Drivers are instructed to stand with their arms at their sides while listening to the instructions. This is also a divided-attention test – the motorist’s attention is split between staying balanced and focusing on the instructions.

The test itself consists of raising one leg approximately six inches off the ground, with arms down and toes pointed. With one leg raised, the motorist must count out a series of numbers until instructed to stop while focusing the eyes on the toes of the raised foot.

While the driver performs the test, the officer is watching for four specific clues of intoxication:

• Using the arms for balance;
• Swaying while balancing;
• Hopping;
• Putting the foot down.

Police are trained to believe that the driver is under the influence if two or more clues are exhibited. However, the one-leg stand test has shown in studies to be accurate just 65 percent of the time – therefore, it is inaccurate 35 percent of the time.

COUNTING BACKWARD TEST (NOT STANDARDIZED BY THE NHTSA)

The counting backward test requires the driver to count backward from a specific number, such as 1,000, until told to stop. This divided-attention test requires you to focus on both the starting number and the sequence as your count backward. Anything other than a100-percent perfect performance will be viewed as a sign of intoxication.

FINGER-TO-NOSE TEST (NOT STANDARDIZED BY THE NHTSA)

In the finger-to-nose test, drivers are instructed to tip the head back, close the eyes, and touch the tip of their nose with their index finger six times using alternate hands. Any minor mistake will be viewed as seen as a sign of intoxication. Like the counting backward test, this exercise isn’t standardized by the NHTSA because it has no objective scoring system.

RHOMBERG-ALPHABET (NOT STANDARDIZED BY THE NHTSA)

A driver taking the Rhomberg balance test or Rhomberg alphabet test must stand with feet together, head tipped back and eyes closed while reciting the alphabet without singing. While the driver performs the test, the driver watches for any signs of swaying or an inability to keep the head back, the eyes closed, or recite the ABCs. Of course, even a person who hasn’t had a single drink would sway if required to stand with his or her head back and eyes closed. Most officers will admit this on the stand with a little prodding.

None of these tests are foolproof - the National Highway Traffic Safety Administration has acknowledged that:

• Many sober people have difficulty with balance;
• Drivers with leg or back problems may have grave difficulties performing these tests correctly;
• Drivers with middle-ear issues have balance problems that affect these tests
• Older drivers may have difficulty correctly performing field sobriety tests;
• Many field sobriety tests shouldn’t be performed in shoes with heels higher than two inches;
• Weather conditions can affect the tests.
• Field sobriety tests lose their effectiveness with repetition

A skilled Florida DUI / DWI attorney will challenge your field sobriety test results as part of an effective strategy to create reasonable doubt in your guilt. The Florida DUI / DWI attorneys at the Law Offices of Ronald Sholes have the knowledge and skills needed to aggressively fight your drunk driving case. Contact them today for a free consultation.