What most people don't know, and are conveniently not told, is that these tests are not mandatory. However, the officer who stopped your car won't tell you this and will use the results of the tests to justify your arrest and to accumulate evidence to be used against you in court or at the Department of Motor Vehicles. Although the tests are supposed to test your ability to perform divided attention tasks (the theory being that driving is one of the ultimate divided attention tasks in that while driving you are actually performing many individual tasks at the same time-as an example pushing on the accelerator or brake while checking the mirror), they are actually designed for failure. Remember, it is your right to politely refuse to accept the officer's invitation to submit to any FSTs, either on the street or at the station. Do not confuse the FSTs with your obligation under the implied consent law to submit to a breath or blood test. A refusal to perform the FSTs cannot result in a penalty to you.
Standardized (meaning accepted in the scientific community) FSTs Include:
Nystagmus (Horizontal and Vertical Gaze): The officer should position an object (i.e., finger, pen, etc.) approximately one foot from the driver's face, and move the object from side to side while watching the subject's eyes. The officer watches the eyes for the ability to track the involuntary jerking or bouncing of the eyeball. This jerking or trembling is supposed to indicate someone has consumed and is being affected by alcohol. (However, nystagmus is naturally found in a percentage of the population and can be indicative of many medical and physiological disorders including an accident or recent head injury.)
Walk and Turn: The subject takes nine to twelve heel-to-toe steps along a line, turns, and takes nine to twelve heel-to-toe steps back. The officer is looking to see if you can follow instructions, balance, stop during the test, not touch heel-to-toe, not step off the line, or lose balance while turning.
One Leg Stand: The subject is instructed to stand with their heels together, arms at their side, and then told to raise one leg (your choice) six inches off the ground while counting out loud until the officer tells you to stop. Here, the officer is looking to see if you raise your foot the proper distance from the ground, look straight ahead, use your arms for balance, sway, hop, or put your foot down.
Other Non Standardized FSTs Include:
Rhomberg Balance Test (also known as the Modified Position of Attention): The subject stands still with their hands at your side, feet together and then is instructed to close his or her eyes, tilts the head back, and estimates 30 seconds. The officer is looking for signs your internal clock is off, problems with balance, body or eyelid tremors. If you open your eyes, sway, or tense your muscles, these "clues" could support the officer's subjective belief you are impaired.
Finger to Nose: The subject stands with their feet together and eyes closed, and then is instructed to hold his or her arms to the side and alternate bringing the index finger to the nose. Here, the officer is looking to see how close to the tip of your nose you get on each try, if you touch the tip of your finger as instructed or the pad of the finger, if you sway, have body or eyelid tremors, muscle tension, or any other "clues" to support a finding of impairment.
Other Non-Standardized Field Sobriety Tests include:
Finger Count (counting 1 through 5 on the tips before reversing)
Hand Pat (counting one and two while clapping and reversing)
Alphabet Test (you are told not to sing)
Counting Test (and reverse counting test)
Preliminary alcohol screening device (PAS) Test: This is a portable breath test which is supposed to be used as a field sobriety test (usually the last) to determine the presence of alcohol. However, on the road and in a courtroom, this device is regularly used to show the content of your breath alcohol and as evidence of your guilt at hearing and in trial. It is important to understand, and the officer is supposed to advise you that this test is voluntary and not the one required by the Implied Consent Law. However, most of the time this is forgotten or ignored, in order to secure more evidence of your impairment and/or breath alcohol level.
THE MOST IMPORTANT THING TO KNOW ABOUT FIELD SOBRIETY TESTS is that a skilled defense lawyer will know how to handle them in court and in order to better represent you, as a former prosecutor, P. David Wool has been trained in the theory and administration of Standardized Field Sobriety Tests by both the District Attorney's Office and actual training police officers at the police academy and also has completed advanced training which allowed him to become one of only a few such attorneys in Northern California. Essentially, attorney David Wool has received, the same, and in most cases, more training in the theory and administration standardized field sobriety tests than the officer that stopped your vehicle, making him uniquely qualified to successfully handle your DUI case.
The content of this website is for informational purposes only and is not to be relied upon as legal advice. Viewing this website does not create an attorney-client relationship with P. David Wool. Legal representation will only be established upon receipt of a legal services agreement and full compliance with its terms. The information contained on this website is based on current California state law only and can change over time. Laws vary from state to state. Do not rely upon the content of this website as legal advice. Contact a lawyer at once if you have a legal matter.
