What Is the Scientific Relevance of the Field Sobriety Tests?
Interviewer: What’s the scientific relevance to some of these tests?
There Are 3 Tests That Are Validated by the National Highway Traffic Safety Administration
Aaron Bortel: There are only three tests that are validated by the National Highway Traffic Safety Administration. That would be the horizontal gaze nystagmus test, the walk and turn test and the one leg stand. If you exhibit too many clues or if you do too many things wrong than what that means is there’s a certain chance, based on percentages that you are at or over a .10 blood-alcohol level.
These tests were designed long ago and they were designed back when the blood-alcohol level in most places was .10 or it had been reduced to a .08. If you fail all three of those tests then your odds of being at or over a .10 blood-alcohol level at the time you’re doing the tests go up. If you pass two of the tests and fail another that may mean that you’re over; but it may not.
The Feld Sobriety Tests Were Designed to Assist Police in Determining Whether or Not a Driver Is Impaired
The field sobriety tests are meant to help the police officer determine whether or not he or she should arrest you. They’re almost always followed up by a preliminary alcohol screening device test, a breath test on the side of the road, administered with a handheld breath device, where after doing the field sobriety test the officer will have you blow in the machine usually two times and if you’re at or over a .08, they arrest you.
Should You Perform the Field Sobriety Tests? The Results Provide Law Enforcement with Evidence to Use against You
They’re guides, but what they’re really used for is to help convict you. If you are pulled over for a DUI—you are not required to do these field sobriety tests. You are not even required to blow into a breath machine unless you’re on probation for DUI.
Once you’ve been arrested, then you’re required to blow into a machine, an evidential machine, or to do a blood test, but before that you’re not required to do the field sobriety test. The end result of the field sobriety tests helps an officer convict you.
You Are Not Obligated to Undergo the Field Sobriety Tests
What happens with these tests is the officer will say that you did all the requirements wrong. They’ll write down all the things that you do right. There’s just no reason to do these tests. If the officers smell alcohol on you whether you do well on the tests or not they’re still going to have you blow into that machine.
If you blow into that machine and you’re at the legal limit or over or in some counties even a little bit below it, they’ll still arrest you for DUI, bring you into the station and have you do another evidential breath test or a blood test.
Don’t do the field sobriety test in those cases. It’s just not going to help you. Some would say this is a consciousness of guilt and why wouldn’t you blow into the preliminary breath machine and undergo these tests unless you’re trying to hide something?
It Is Advisable to Respectfully Decline to Perform the Tests
What you should do is tell a police officer I respectfully decline to do these tests. I’ve been advised by an attorney in the past that I’m not required to and I should never do these tests. That’s a fine answer. There’s nothing wrong with that.Don’t give them more evidence to convict you. There’s no reason to help.
Do Not Refuse the Evidential Test, Usually Administered at the Police Station
They’ve got their job to do; let them do their job. Don’t refuse the evidential test in California, the one at the station, after you’ve been arrested or sometimes they can even do that on the side of the road if they have an evidential machine with them. Do not refuse the blood test after you’ve been arrested because then you will lose your license for at least a year. It’s very hard to win a refusal hearing with the DMV to try and save your license.
The Tests Are Very Difficult for Older People and Those with Any Type of Physical Limitation to Perform
Interviewer: When we’re talking about people with weight problems or people that are 60 or older people, what’s the more difficult test to perform?
Aaron Bortel: These tests are designed for people who are in shape who do not have physical problems who are not elderly. A lot of clients will say to me I couldn’t even do that test sober. People go home a day or two later they try the test again. They try and lift a leg six inches off the ground, parallel to the ground keeping their arms at their sides, counting 1001, 1002 for about 30 seconds.
You Are Not Required to Perform a Physical Test Prior to Obtaining a Driver’s License
It’s very hard for most people to do that test without putting their foot down. A lot of people who are in shape can’t even do that test. When you are given a test to get your driver’s license, a written and a driving test, they don’t ask you to do these tests.
They don’t know who can balance and who can’t. For someone who is elderly or out of shape or has some type of injury that would prevent them from balancing well they should not do these tests.
Oftentimes, the Police Will Administer the Tests to Drivers That Were Just in an Accident
It’s wrong, in my opinion, for the police to give just everybody these tests. Unfortunately, they do. The most outrageous situations are when they’re giving these tests to someone who has just been in an accident or a rollover accident. They been banged up, the airbags have gone off; they’re stunned, they’ve been shocked. They will still, in many cases, administer these tests.
The Police May Not Inform You Participation in the Tests Is Optional
They’re supposed to say that these tests are voluntary. I was just reading a police report today that said I’m going to give you these field sobriety tests, not would you like to do these or you have the option to do these; but just we’re going to do these tests. There was no option given.
Most people I talk to will tell me that after they’ve been pulled over there not given the option on these tests. Unfortunately, there’s not much remedy when the officers fail to tell you that these tests are optional.
Different people do well on different tests. I would say there’s one where you count your fingers; you’re counting down; you’re touching your thumb to your fingers counting 1234, 4321 front and back. I would say that most people do well on that test. Of all the tests that the officers give I would say the standing on one leg people have the most trouble with that.
How Well Are You Performing the Tests? It Is Impossible to Judge Your Own Performance of the Horizontal Nystagmus Test
The horizontal gaze nystagmus test was a test where you’re looking for the involuntary jerking of the eye, which of course the person who’s been pulled over they cannot gauge their own performance. All they can tell is whether they’re keeping their head still or not and that’s probably because the officer’s reminding them to keep their head still. You can’t see or feel the involuntary jerking of your eye. That’s something the officer’s looking for as they are having you follow their finger or a flashlight or a pen.
That one is rarely recorded and the results are whatever the officer writes down. That’s a test that I just don’t like because not all officers are well-trained, not all of them will take the amount of time which they should take, which is about 90 seconds, to do the test properly.
They will often do it within less than 10 seconds and a lot of them do it seated in the car where the angle of your head prevents it from being conducted properly.
By Aaron Bortel
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