The simple truth is that once you get behind the wheel of a car and drive, or are in actual physical control of a car, you have opened yourself up to the potential of being investigated for DUI. Don’t make the mistake of thinking that it can’t happen to you.
So here are some things we can at least anticipate and prepare for if you find yourself in the unfortunate position of being investigated for DUI. During almost every single DUI investigation, the suspect will be asked to perform a series of field sobriety tests. Note: Florida courts have rejected police officers and prosecutors characterizing these activities as “tests,” and prefer them to be called “exercises.” However, when you consider that one’s ability to perform to standards on them is a critical factor in determining whether or not the person will be arrested, they inherently feel as though they are pass/fail, and, to me at least, that’s a test.
Generally, yes, you should take the field sobriety tests if the police request it. Some attorneys will advise otherwise, but here is my reasoning based on my extensive experience in defending DUI cases. If your case goes all the way to a jury trial, the results of the tests will almost always look better to a jury than a refusal to perform the tests.
I know how to highlight the good in your test performance and downplay anything questionable. It’s not hard to frame a police officer’s expectations, or the exercises themselves, as unreasonable. That puts a reasonable doubt into jurors’ minds.
If you are then arrested after performing the sobriety tests, we can use that in your defense as well. That’s because if you follow my other advice, you will then refuse any breath, blood, or urine test requested. This, of course, could look suspicious to a jury. But if you submitted to the FSEs, I can use that to reason with jurors that you had jumped through hoops and cooperated with the officer, only to be arrested. It’s no wonder you then refused a breath test.
With that in mind, let’s take a look at the exercises themselves and how to properly perform them. Even a completely sober person can be tripped up by the field sobriety tests, so knowing what to expect can go a long way to keeping you out of trouble.
DUI police officers trained in investigating DUIs learn how to administer five field sobriety tests: (1) Walk-and-Turn; (2) HGN; (3) One-leg Stand; (4) Rhomberg Balance; and (5) Finger-to-Nose. These exercises, which were created and standardized by the National Highway Traffic Safety Association (NHTSA), call for one to divide attention, multi-task, use memory recall skills, and perform abnormal physical tasks. These tests are crucial to any DUI investigation and prosecution. Police officers spend dozens of hours being trained on how to administer them, during which they get ample opportunity to practice performing them. They are even provided with a single-page cheat sheet that has diagrams and fields of information to remind them what to look for when you’re performing.
Do you think police officers are so fair and objective that they will show you that sheet of paper (the questions on the exam, if you will) so that you can see what they’re really looking for you to do? Nope. Do you think they will give you a few moments to practice performing these tasks that, in all likelihood, you’ve never seen or done before to ensure that when the test really counts you have a fair shot at passing? Nope. All you will get is a series of rapid-fire instructions and the officer’s demonstration as to what he or she is looking for. So use the information below to increase your level of awareness now.
Wait to begin!
This applies to all five field sobriety tests equally. Make sure that you do not begin performing the test until you are specifically instructed to do so. The police officer will likely be rattling off instructions while simultaneously demonstrating how they expect to see it done.
It’s human nature to want to immediately mimic what you see. But start too soon, and that officer will count it against you, and later remind the jury that you “couldn’t follow a simple instruction” to wait until told to begin, which is a sign of impairment.
You will first be asked to stand in the starting position during the instructional stage. This requires you to place one foot in front of the other, touching heel-to-toe, with your hands resting down by your sides. You will be expected to maintain this position, without losing your balance or stepping out of that position, the entire time the officer is giving you additional instructions and demonstrating. Move your front foot back to a natural standing position — even just to be comfortable while watching the officer demonstrate — and it will count against you, characterized as an inability to maintain balance or listen to instructions.
Next, you will be asked to walk on a straight line, placing one foot in front of the other, always touching heel-to-toe, for 9 steps out. Don’t raise your arms for balance; don’t step off the line; don’t create more than a 6” gap between heel-to-toe or you will be docked. After your 9th step, you will be expected to turn in a very specific manner. They want you to take a series of small pivot steps while keeping one foot down as the plant/pivot point. Even if you are so graceful as to do a super spin in one fell swoop and look like a gymnast, it will only count against you.
Then, walk 9 steps back to where you started from—just as you did before (touching heel-to-toe, straight line, with hands down by your side). If you step off the line at any point, immediately correct yourself and keep going. If you miss heel-to-toe, correct yourself and keep going. Sometimes it’s natural to want to stop the test when you feel like you messed up and restart. Most DUI cops will let you restart, but when you do, they later remind the jury that you had to try and perform the test 2 or 3 times.
The walk and turn is the most commonly administered DUI field sobriety exercise.
The HGN test is the one you commonly see with officers asking people to follow an object with their eyes. What the officer is looking for are 3 clues that might be present in each eye: (i) whether your eye has nystagmus (a jerking movement); (ii) when the nystagmus first occurs; and (iii) whether you have distinct nystagmus at “maximum deviation.” Now look, supposedly, you cannot control whether your eye will exhibit nystagmus, so don’t stress over this too much. It’s supposed to be involuntary. Officers describe that jerking as a windshield wiper across a dry or dirty windshield versus a clean, wet windshield where they glide smoothly.
Prior to performing HGN, the officer is supposed to ask you a series of questions. Why? They think that if they can ensure you don’t have corrective lenses; head trauma; or are taking any specific medications, if nystagmus is present, it correlates to impairment by alcohol. They may say during trial that seeing HGN prior to 45 degrees when making side-to-side passes magically correlates to a 0.08 or higher. (I know, 45 degrees? How could they possibly know? They don’t use a protractor. They are trained to use other areas of the body (i.e. shoulder) as indicators, but most don’t even know that much).
The best DUI lawyers in Miami know how to effectively challenge HGN and, quite often, keep it excluded from trial. That’s because in Florida, this is the only field sobriety test that courts say requires “expert testimony” during trial. That allows aggressive DUI lawyers to argue, before trial, to prevent the officer from being treated as an expert for that purpose, thereby preventing the jury from hearing about it. Even if a judge lets it in, an effective cross examination can expose its flaws.
Like the walk-and-turn, this test has an instructional and performance phase. Remember, don’t start before instructed! During the instructional stage, you will be told to stand on one leg, whichever you prefer, while raising the other leg in the air at least 6” off the ground; also, flex your foot, look down at that foot’s toes, and keep your hands at your side. Do this, sometimes while having to count out loud, for around 30 seconds or until the officer tells you to stop. If you raise your hands more than 6” from your side (which, how on earth are cops measuring this anyway? So keep them pressed against your side in an abundance of caution) or put your foot down for balance, even if for a moment, just correct yourself and keep going. If you start hopping on your plant foot for balance, that, too, will count against you.
So remain calm and relaxed. Try not to raise your leg so high that it creates a higher risk for losing your balance. The officer is looking for all of these things. If you have a problem with a leg, foot, knee, ankle, back, or any other affliction that you think impacts your ability to perform, let the officer know before you begin. They try to hang their hat at trial on the “Well, I said he or she could use whichever foot they prefer, and they still couldn’t do it right.” What if you have a medical condition that prevents you from doing as instructed? Let them know. Even if you want to try to perform it afterwards, the DUI officer should note that on the test report.
If you have a medical condition that prevents you from preforming the tests, speak up. The officer should note that on the test report.
This is another test for balance and ability to recall specific instructions that also requires multi-tasking. During the instructional phase, you will be asked to stand with your feet together and place your hands down by your side. When told to begin, tilt your head back, close your eyes, and “estimate” the passage of 30 seconds (in your head!). When you think time is up, bring your head back forward, open your eyes, and say stop.
The officer will again be looking for swaying, hopping, lost balance, but also things like forgetting to keep your eyes closed, counting out loud instead of in your head, or counting for way too long. Alcohol usually has the effect of delaying people’s responses. The officer will be watching his or her digital stop watch. If you allowed 60-90 seconds to pass by before actually stopping, they will try to use that against you. Although they don’t tell you how to count (meaning, “1-2-3…” vs. “1 Mississippi-2 Mississippi- 3…”), I recommend having a method and sticking to it. This test is not always administered. So don’t freak out if it’s not. But when it is, I know how to destroy it on cross examination at trial. Still, it always helps if you know what they’re looking for now, before the test is for real. The better your performance, the better chance of beating your case.
It always helps to know what police are looking for before the test. The better your performance, the better chance of beating your case.
The last test usually administered is the finger-to-nose. You will be asked to close your eyes, with your hands out by your side, and, when prompted by a verbal order (e.g. “Left” or “Right”), use the appropriate hand’s index finger to touch the tip of your nose before bringing it back down to your side.
Here are a few key things to remember: First, keep your eyes closed the entire time. Second, you need to touch the “tip” of your index finger to the “tip” of your nose. If you do what people normally do, which is rest the pad of your index finger flush on the tip of your nose, you didn’t “do as instructed” and they will dock you for it. How silly is that? If you touch anywhere on your nose besides the tip of it, they will note that too. Third, don’t try to guess which hand the officer wants you to use. They will call it out for you. So calm down and listen. They may not always alternate evenly. Sometimes they get tricky and will do Left-Right-Left-Left to trip you up. Lastly, always remember to remove your finger after touching your nose and put it back down by your side.
Prosecutors and Insurance Adjusters know that I am ready, willing, and able to take your case the distance—and achieve desirable results.