When a police officer stops you while you are driving because of suspicion that you are impaired, s/he may ask you to perform Field Sobriety Tests (FSTs). Law enforcement uses FSTs to find signs of impairment, gauge your cognitive and physical functions, and establish a probable cause with which they can arrest you for DWI.
Understanding your rights when asked to perform a field sobriety test is important since procedures taken from the beginning of the stop through to an arrest can affect the sentencing if convicted. You should understand the field sobriety tests and what they entail if you are ever in the unfortunate situation of being stopped for DWI.
It’s important to note that being stopped for a DWI has different stipulations than a DWI checkpoint. A DWI checkpoint allows law enforcement officers to stop any vehicle on a public road without reasonable suspicion. Any person who is charged with DWI at a sobriety checkpoint needs to consult with an experienced Raleigh DWI lawyer to find out the best way to deal with their case. For more information, read our article “What to Do at a Raleigh DWI Checkpoint.”
At Sandman, Finn & Fitzhugh, we can help you through the process of defending a DWI charge in Wake County, NC. A point that you should always remember is that you cannot be forced to perform these sobriety tests regardless of what the police officer may say. In this article, we discuss the different field sobriety tests police use in Wake County, what officers are trained to look for, and what your rights are.
DWI Tests for Impairment While Inside the Vehicle
A police officer may ask you to perform certain tests before you get out of the vehicle. You are not required to agree to perform any of these pre-exit tests, however the officer may imply that you are.
Sobriety tests a law enforcement officer may ask you to perform while you are still inside the vehicle include:
- Reciting the alphabet, sometimes from a specific letter in the middle to a specific stopping point, for example from F to P
- Counting backwards
- Showing finger dexterity by touching each finger to your thumb on the same hand while counting
The 3 Standardized Field Sobriety Tests Performed Outside the Vehicle
There are three scientifically validated standardized field sobriety tests:
1. The Horizontal Gaze Nystagmus (HGN) – a.k.a – The Eye Test
The horizontal gaze nystagmus (HGN), also called “the eye test,” may be the first test that officers use when they stop you. This test requires you to move your eyes while tracking a finger or pen. HGN is the involuntary jerking of your eyes as you gaze toward the periphery. Officers are told that alcohol is a substance that causes eyeball jerking. It has been shown that alcohol can intensify eye-jerking but many people experience this involuntary movement when tracking their eyes to the side. The HGN test is reported to be the most reliable of the three field sobriety tests.
Facts that you should know about HGN:
- This test has never been studied or validated by any medical institute or university.
- The government has never published its studies on HGN in any medical or scientific journal.
- There are many (over 35) non-impairment conditions that cause nystagmus, ranging from high blood pressure to inner ear problems. Even an optometrist would feel uncomfortable with observations made during a clinical test on the side of a road in darkness.
2. The Walk-and-Turn Test
The second test a law enforcement officer typically asks a DWI suspect to perform is the walk-and-turn (WAT) test. In this test, you follow instructions while performing simple physical movements. The officer instructs you to take nine steps, heel to toe, down a painted or an imaginary line, turning in a specific manner, and taking another nine heel-to-toe steps back down the line to the beginning. You may think you can do OK on this test, but you don’t know what the officers are looking for. There are eight clues of impairment that an officer may see during this test. You can show half of them by taking just one step.
Officers are trained to look for these things during the walk-and-turn test:
- Can you stay balanced in the starting position while the officer gives instructions for the test?
- Can you walk 18 steps touching your heel to your toe on each step?
- Can you walk 18 steps without stepping off the line even if the line is imaginary?
- Can you walk 18 steps heel-to-toe without using your hands for balance?
- Can you turn after the ninth step in the instructed manner?
- Did you stop walking during the test?
- Did you take the required 18 steps?
- Did you start the test before being instructed to do so?
You could perform 17 steps perfectly but miss a heel-to-toe step, step off the line, use your arms for balance, and stop walking all in one step. The officer would deem this test as a failure.
3. The One-Leg Stand Test
The one-leg stand test requires you to stand on one leg and count aloud until the officer tells you to stop. There are four clues the officers are trained to see as signs of impairment. It is easy for you to think you have done well on this test but, actually, you have failed. Standing on one leg without putting your foot down is only 25% of what the officer is looking for.
Police officers are trained to look for these four things during the test:
- Did you put your foot down within 30 seconds?
- Did you use your arms for balance?
- Did you hop to maintain balance while on one leg?
- Did you sway while balancing on one leg?
If you exhibit just two of these clues, you have failed the test.
Portable Breath Test
Many times, the officer will ask you to take a portable breath test (PBT). It’s important to note that a portable breath test may not be used to prove guilt of impaired driving in court. Along with other field sobriety tests, it may be used to prove that there was probable cause for arrest. If you agree to take a portable breath test, you will be asked to blow two times into the instrument with the second blow occurring a few minutes after the first.
Portable breath test machines are incredibly inaccurate. So much so that the number they produce isn’t allowed to be stated in a trial. In court, the officer is only allowed to say if the result was negative or positive for the presence of alcohol. An experienced DWI attorney can counter the results from a PBT on several points. The instrument must be properly documented, maintained, and calibrated. For more information, read our article on DWI levels in Wake County and North Carolina.
Know Your DWI Rights in Wake County
Officers are looking for clues that you more than likely have no idea of when they administer the field sobriety tests. However, remember that these standardized tests can result in errors. Police officers must be properly trained and follow defined strict guidelines. The most important thing to remember is that the field sobriety tests are not mandatory. You have the right to refuse to perform the tests if you so choose. You still may be arrested, but your case may be much stronger when it is tried in court.
Additionally, if you perform poorly on the tests, the results can be challenged and potentially suppressed in a trial. If they are suppressed, it can be difficult for a prosecutor to establish that the police officer had probable cause to arrest you, and everything that comes after the arrest is suppressed also. If the arrest is suppressed, then no evidence remains from which a court can base a DWI conviction.
Contact the Wake County DWI Lawyers at Sandman, Finn & Fitzhugh with 60 Years of Experience
If you have been stopped and arrested for a DWI, you need experienced legal representation to make sure your rights are protected. Our team of DWI lawyers in Wake County will expertly handle your defense in court to give you the best chance of beating the charges. We serve clients in Wake County including Apex, Cary, Wake Forest, Fuquay-Varina, Morrisville, Rolesville, Knightdale, Zebulon, Wendell, Garner, Brier Creek, and Raleigh. Call us 24 hours a day, 7 days a week for a free consultation at (919) 845-6688 or complete the contact form to speak to one of our attorneys today.