Fresno DUI Attorney Advises What You Should Know About Field Sobriety Tests

Nov 01, 2017


Anyone pulled over for drunk driving in California is within their legal rights to decline to take a field sobriety test. This is one or more subjective tests given by a police officer to determine if you're intoxicated. DUI Attorney Michael Mitchell has been trained as both a field sobriety practitioner and as a Field Sobriety Instructor.  He knows how to attack these tests.  In fact, if these tests are wholly inadequate, the entire arrest may be subject to suppression. Because these tests are highly subjective, it means the officer's observations alone determine whether you are legally intoxicated.  If his observations are insufficient to support impairment, you shouldn't have been arrested in the first place, and the accompanying chemical tests and additional observations may be suppressed. This is why you may want refuse field sobriety tests. The most common, standardized field sobriety tests, include:

  • Eye Test: A police officer holds a finger, pencil, or similar object six inches from your nose and then moves it from side to side. This is also known as the Horizontal Gaze Nystagmus (HGN) test. The purpose is to track your eye movements, which should jerk involuntarily if you're truly intoxicated.  The involuntary jerking of the eye is known as Nystagmus. This test is prone to numerous problems, including, but not limited to the following: Nystagmus can show up naturally in some people without alcohol or drugs; Nystagmus can be cause by flashing lights (emergency lights on the patrol vehicle); Nystagmus can show up at a very low blood alcohol level below the legal limit; Nystagmus can be caused by caffeine or other legal stimulants.  
  • One-Leg Stand Test: The officer gives a command to stand on one leg to test your balance.  The clues of impairment on this test, are dropping your foot during the time frame provided (usually 30 seconds), lifting your arms more than 6 inches from the side, swaying, and hopping to maintain balance.  This test is very difficult for people to perform who have balance issues or who are older.  Also, if you've just been in an accident that may also effect performance on this test as well as the following test. 
  • Walk and Turn: This test is performed by walking nine (9) steps our and 9 steps back following a straight line.  The clues of impairment on this test are losing your balance while the officer is instructing you on how to do the test; starting before the officer tells you to start; taking the wrong number of steps; stepping off the line you were supposed to follow; raising your arms more than 6 inches from your side; taking the wrong number of steps; not turning around at the end of the 9 steps as demonstrated; not maintaining heel to toe.  As you can see, with so many details, it would be very easy for a sober person to perform this test incorrectly.  All the same factors that effect the reliability of the one leg stand, also effect the reliability of this test as well. 
  • Non-standardized Tests: There are many non-standardized tests which include: the finger-to-nose test; hand-pat-test; finger-count-test; and rhomberg test (also called modified position of attention) test.  These are non-standardized, which is a fancy word for the fact that they have absolutely no scientific reliability to them.  Because they could not be deemed to be scientifically reliable they've been dubbed by law enforcement "non-standardized."  These tests need to be challenged and many officers will admit that they there is no scientific reliability to them.
  • PAS Test: This is the Preliminary Alcohol Screening Test (PAS):  The PAS is a field sobriety breathalyzer.  The police are required to give you an admonition that this is not the final evidential breathalzyer.  This is just a field sobriety breath test.  You can refuse this test just like the other field sobriety tests.  Please keep in mind that you must submit to an evidential breathalyzer, urine, or blood test or face immediate suspension of your driver's license. That portion is in italics, bold and underlined for a reason.  If you refuse the evidential chemical test, you will be subjected to a refusal allegation with the DMV, which means that your license can be suspended for one to three years with no option for a restricted license.  So if you refuse the field sobriety tests, including the field sobriety PAS, just make sure you know the difference between the field sobriety breath test and the evidential breath test.

Whether you have been charged with impaired driving or want to learn more about your rights, please contact us for a free and confidential case evaluation.  We're here to help and answer any questions you may have.  You can reach our office 24 hours a day.


Category: DUI Defense

Michael Mitchell


Michael Mitchell is a Fresno attorney who practices in the areas of DUI, personal injury & criminal law. Visit his Google+ profile.