In our practice we are often asked the question “Am I required to submit to field sobriety tests?” Many drivers are unaware of their rights when it comes to field sobriety tests, and often feel pressured to submit to a test when detained for driving under the influence. In fact, most police officers simply fail to advise an individual that the tests are not required.
There are a number of field sobriety tests that are performed by members of law enforcement. Some of the most common are:
- The walk and turn test
- The one-leg stand test
- The horizontal gaze nystagmus test
- Finger to nose test
- The alphabet test
When properly performed, the officer can rely on the tests to determine if probable cause exists to place an individual under arrest on suspicion of driving under the influence. However, most officers do not properly perform the tests. And, in most instances, the officer has already formed an opinion as to whether the individual is under the influence. For that reason, many attorneys who handle driving under the influence cases, including our office, will instruct individuals not to submit to field sobriety tests.
The tests are used to gather incriminating information that may be used against the individual in court. Provided that the tests, in most circumstances, are optional, we suggest not performing the tests. There are certain circumstances, where an individual may be required to submit to a preliminary alcohol screening test. That test is recognized as a field sobriety test. If, however, you are over the age of 21 and not on probation for driving under the influence you are not required to submit to this test either.
If you are stopped for suspicion of driving under the influence it is important that you know your rights. It is unlikely that the police officer will provide you with this information. Being informed of what you are and are not required to do may prove invaluable.
What happens if I refuse to take a chemical test?
Refusal to submit to a blood, or breath test when if arrested on suspicion of driving under the influence may result in a suspension of your driving privilege. It is important to understand the difference between a field sobriety test and a chemical test. In California, the duration of the license suspension is one year for a first time “refusal.” If this is a second or even third offense you will face more severe penalties.
Refusal to submit to a chemical test may result in a license suspension in California. Recently, the United States Supreme Court, in Missouri v. McNeely (2013) 133 S.Ct. 1552 held that a nonconsensual warrantless chemical test violated Mr. McNeely’s right to be free from unreasonable searches of his person. How the McNeely decision will impact California’s implied consent law is not yet clear. For now,
if an individual refuses to submit to a chemical test the DMV will likely suspend the individual’s driving privilege. However, without a chemical test result it may be difficult, if not impossible, to convict an individual of driving with a blood alcohol level above .08%, Vehicle Code section 23152 subdivision (b). Absent the results of a chemical test, the individual still may be charged with driving in violation of Vehicle Code section 23152 subdivision (a).
Also, please keep in mind that the fact an individual refuses to submit to a chemical test or field sobriety test may be used against you if your case proceeds to trial.
What if I decide to take the field sobriety test?
If you decide to take the field sobriety test it is very important that you follow the instructions exactly as they are given to you by the officer. Failure to follow any of the directions may be used against you as proof of impairment. If you suffer from any physical issues that may prevent you from performing these tests it is important that you discuss them with the officer.
These tests are used to develop probable cause for the officer to arrest you. The officer will be looking at your performance during the field sobriety test, observations while interacting with you, and why you were stopped to determine probable cause. Officers will often take notes of their observations, including the smell of alcohol on your breath or anything you say at the time of your traffic stop. Some examples of what an officer may look for include:
- Evidence of bad driving (speeding, running a stop sign)
- Blood shot or glassy eyes
- Alcohol on your breath
- Slurred speech
- Flushed face
- Inability to follow directions
- Failed field sobriety tests
- Problems walking or standing still
- Problems getting out of the vehicle
- Inability to produce driver’s license or registration
Most of the physical roadside tests are ineffective in determining impairment. The National Highway Traffic Safety Administration (NHTSA) has approved only three of the many tests that are used. The three tests determined to have scientific validity are the:
- Horizontal Gaze Nystagmus test
- Walk and Turn
- One Leg Stand
You can view the Standardized Field Sobriety Testing provided by the NHTSA for more on the Horizontal Gaze Nystagmus test, Walk and Turn test, and the One Leg Stand test.
Despite being common, field sobriety tests are still not always reliable. The NHTSA specifically states that to be effective these tests must be given according to exact specifications which is often not the case when traffic officers administer these tests. Varying surfaces, lighting conditions, physical conditions and so forth can impact your performance and officers may not always follow protocol. These tests are also subjective, meaning the officer’s opinion of your performance is used to determine whether or not you have passed or failed. Why take the chance if you can simply refuse the field sobriety tests?
If you have further questions regarding field sobriety tests or would like to confidentially discuss your case, please contact us at (559) 222-5800. In most instances an appointment can be scheduled for the same business day.