Almost all DUI investigations include having a DUI suspect perform various balance and coordination tests. These tests are referred to as field sobriety tests or FST’s. The theory behind these tests is that they test a person’s ability to divide attention. Driving is portrayed as a divided attention task. One has to both operate the automobile and also pay attention to other cars, pedestrians, and traffic controls on the road.

There are several FST’s. The most common are the horizontal gaze nystagmus, walk and turn, one leg stand, Rhomberg balance, finger to nose, alphabet, and number count. Only three of these tests, the horizontal gaze nystagmus, walk and turn, and one leg stand are recognized by the National Highway Traffic and Safety Administration (NHSTA) as having a statistical validity. These three tests are called Standardized Field Sobriety Tests (SFST’s)

The horizontal gaze nystagmus test consists of the arresting officer asking the DUI suspect to keep their head still and follow a stimulus such as a pen or finger while the officer moves it in front of their face. The officer is looking to see if the eyeballs jerk involuntarily (nystagmus). This is the SFST that has the greatest aura of scientific validity. However, in reality, it is junk science. There are some people who have nystagmus that is natural or caused by a medical condition. The arresting officer can cause nystagmus by moving the stimulus too fast, holding it out too long, or holding it too close to the suspect’s face. Also, jerking motions by the arresting officer can cause nystagmus. As a result, this test is rarely performed correctly and properly by arresting officers.

The walk and turn is a deceptively simple test, but in reality it is complex to administer. Giving the proper instructions and demonstrating the test take practice and experience. Failure to start the person off on the correct foot can sabotage the entire test and set the person up for failure. Minor sins like raising arms more than six inches for balance are counted against the test subject. There are many places to make mistakes. Sober people make many mistakes on this test given the complexity of the instructions.

The one leg stand is the easiest test to administer, but for some suspects, the hardest to perform. Being asked to place your hands at your sides and balance on one foot while keeping the opposite leg perfectly strait and look down at your feet can be hard to do by the side of the road under the stress of a law enforcement detention at 3:00 in the morning. I had one trial where I asked the officer to demonstrate this test. The officer struggled, shaking and hopping before the jury. He failed the test, but said it was due to being nervous in court. Why did the officer fail to give my client the same excuse?

NHSTA’s manual claims that if the three SFST’s are performed correctly and scored correctly, than they can have an accuracy rate of 91% for predicting a BAC of .08 or above. These studies are of questionable validity because they were all conducted by law enforcement agencies under unrealistic control, sample and verification conditions. It is important to emphasize that the 91% rate would only apply in a perfect investigation where the tests were done correctly. In the vast majority of cases, a good DUI defense attorney can find the defects to help undermine the value of this evidence in the prosecution’s case.

There are common misunderstandings of the role of FST’s. Many people believe that FST’s can show impairment or prove that a suspect has a certain blood alcohol level. The proper role of the FST’s as testified to by the creator of the FST’s is to help the arresting officer decide to arrest the DUI suspect and take the DUI suspect to have a chemical test performed. That is really the only purpose for FST’s. Nevertheless, many prosecutors and others continue to insist that the test performance on its own is sufficient for conviction.

It critical for the DUI defendant to obtain a DUI lawyer who understands the proper role and weaknesses of field sobriety tests and can effectively communicate these issues to juries and judges.

(c)2007 DUI Terminator: Los Angeles DUI Lawyer Kenton Koszdin has helped many people in Los Angeles and surrounding counties save their drivers license and preserve their freedom. Call (800) 542-5384.

When a DUI suspect refuses to take a chemical test, both the DUI defendant and the prosecution are presented with challenges and opportunities.

California has a law called the informed consent law of chemical testing. What this means is that when you got your drivers license, you agreed (although you probably did not realize it at the time) that in exchange for the state giving you your drivers license, you agreed to submit to a chemical test. This law means that the state does not need a warrant or other court order to have you submit to a chemical test.

If a DUI suspect is arrested and after arrest is given the opportunity to take a chemical test such as a breath, blood, or urine test, and refuses to take any chemical test, the DUI suspect will be charged with an additional crime of refusing a chemical test.

The DUI suspect who refuses to take a chemical test gains some advantages by refusing. The prosecution does not have a blood level number to rely upon and has the more difficult job of proving impairment as defined in California’s jury instructions. However, this is of limited value.

Many DUI defendants are charged with refusal because at the time they were asked to take a chemical test, the DUI defendant believed that they had the right to speak to a lawyer. While this may be the law in some states, it is not the law in California. This mistaken belief has lead to many refusal cases.

In many DUI cases, the defendant agrees to take the voluntary field sobriety tests while refusing to take the mandatory chemical test. What this means is that in many refusal cases, the prosecutor still has evidence of impairment through the officer’s testimony about the DUI suspects performance on the field sobriety tests.

Another common error DUI defendants make is to assume that by submitting to the preliminary alcohol screening (PAS) test, that they have satisfied their obligation to give a chemical test. In some cases, under the right facts, this can be a winning argument. However, in most cases, the refusal will still be charged.

Prosecutors and judges can be very hostile towards a DUI defendant who has refused a chemical test. This hostility can be expressed in increased jail time and extended alcohol education programs.

If the DUI defendant decides to go to trial and is found innocent of the charge of driving while intoxicated, than the defendant can’t be found guilty of refusing a chemical test.

During the trial, the Jury will be given an instruction that the act of the DUI defendant refusing to take a chemical test is evidence that the DUI defendant was conscious of his own guilt of the charge of DUI. In some cases and before some jurors, this can pose a significant challenge.

Given the challenges and risks to both the prosecution and defense, many refusal cases are settled with some charge to the defendant. In cases where the facts on impairment have been favorable or there have been other defects in the prosecution’s case, I have been able to obtain reductions to wet and dry reckless with a dismissal of the refusal allegation.

IT SHOULD BE EMPHASIZED THAT PERSONS UNDER THE AGE OF 21 FACE VERY SEVERE PENALTIES FOR REFUSING A BREAT TEST.

THIS ARTICLE IS NOT MEANT TO ADVISE ANYONE TO REFUSE TO SUBMIT TO A CHEMICAL TEST. I ADVISE ALMOST EVERYONE THAT IT IS IN THEIR INTERESTS TO SUBMIT TO A CHEMCAL TEST. THIS ARTICLE IS ALSO NOT A WARRANTY OF A RESULT IN YOUR CASE. ALL CASES ARE DIFFERENT.

(c)2007 DUI Terminator: Los Angeles DUI Lawyer Kenton Koszdin has helped many people in Los Angeles and surrounding counties save their drivers license and preserve their freedom. Call (800) 542-5384.