Defending Field Sobriety Testing

One of the most common questions that I get asked as a DUI defense attorney is “Can anyone really pass those field sobriety tests?”. The simple answer is that the standardized field sobriety tests that an officer or trooper would typically give someone suspected of an OVI have been designed to detect impairment, and based upon my experience as a practitioner in this field, they can often be damning pieces of evidence used by the prosecution. One can’t simply beat the field sobriety tests much in the same way that one simply can’t beat a breathalyzer if that person has been consuming alcohol. Simply put, if someone is impaired, these tests can expose just how intoxicated one might be. However the flip side is true as well, and if a suspect appears to be sober, sometimes these tests can show the judge or jury that maybe there isn’t conclusive evidence that the suspect was in fact impaired.

Let’s start with the basics. Generally speaking there are only three “standard” or “standardized” field sobriety tests currently in use by Ohio law enforcement today. They are the horizontal gaze nystagmus test, the nine step walk and turn test, and the one legged stand test. They are “standard” in the sense that there is an actual standard that the tests must be conducted in. In Ohio, an officer while performing these tests must conduct these test in substantial compliance with their training.

More often than not the first test that is administered is the horizontal gaze nystagmus (HGN) test. This test is actually a physiological exam where the law enforcement officer is going to use a stimulus, typically a pen or his/her finger, and sweep that stimulus over an individual’s field of vision while the officer/trooper is looking for involuntary jerking of the suspect’s eyes. That involuntary jerking is called nystagmus. Independent studies have shown that this test can in fact accurately detect impairment in someone that has been consuming alcohol. However, this HGN test is only accurate when the officer conducts this test correctly, and secondly, when other causes of nystagmus can be ruled out. (These other causes can be head trauma, certain medications, and eye issues, to name a few.) Thus it is imperative when reviewing video evidence of this test the attorney must carefully watch every step of the process to ensure that it was administered properly.

The nine step walk and turn and the one legged stand are the next two tests. These tests are typically administered one after the other, as they are very similar. The nine step walk and turn test has a subject stand in a predetermined position in a particular way, walk down an imaginary line touching heel to toe the entire way down that line, turning around in a specific manner, and coming back down the same imaginary line in the same way. The suspect must also count each step out loud, and keep his/her hands planted on their sides as they are performing the test. Most lay people believe that this test is simply a test of one’s balance or coordination, but in reality, this test is referred to as a “divided attention” test and the subject’s ability to follow the very specific and detailed instructions can make a break an individual’s performance on the test.

I have many clients that come into my office and tell me that they feel that they passed the field sobriety tests because they “walked a straight line and didn’t stumble”. However the fact of the matter is that simply not following the officer’s instructions precisely can cause a “fail”. For example I can have an individual who might walk down the line very naturally, but fail to count each step out loud and fail to touch heal to toe on every step. Those two seemingly innocuous mistakes would be enough for an officer to determine that the individual has “failed” that particular field sobriety test.

The one-legged stand test is similar to the nine step walk and turn in that there are very specific and detailed instructions that must be followed when performing the test. It’s not simply standing on one foot, it’s actually standing with one foot raised six inches and kept parallel to the ground, while keeping arms at your sides and counting to thirty out loud. Again, it is possible to stand on one foot without it putting it down and “fail” that particular field sobriety test.

The nature of these tests is why it is imperative to make sure that you hire an attorney that is experienced with these issues. A good DUI defense attorney not only will know every single step, phase, and instruction of these tests from the officer’s perspective, but he or she must know and must be able to explain the total picture of these tests from the client’s position in a coherent and convincing fashion. For example, were these tests conducted on the side of a highway with cars buzzing past at over sixty miles an hour or on a flat parking lot? What was the condition of the ground that the tests were given on? Wet? Icy? Cracked and uneven pavement? Was the individual that was tested recently in a car accident? Does the client have any injury history that would impact the tests? Was the client nervous? Is English the client’s native language? Was the client informed that they did not in fact have to submit to these tests? These are just a few of the questions that have to be explored in order to provide a complete analysis of an individual’s performance on the field sobriety tests.

We here at Ruffa Grandinetti, Attorneys at Law have decades of combined prosecutorial and defense experience as it relates to field sobriety testing. Our process consists of carefully reviewing all video evidence, before, during, and after the tests are conducted. We look to see if the officers have in fact conducted these tests in substantial compliance. We speak with our clients to know what was going through their heads when they were taking the tests, and what was going on with their bodies as they were taking the tests. A good defense of field sobriety testing needs to rest on a strong foundation of knowledge that comes with the experience that we have at Ruffa Grandinetti, Attorneys at Law.