April 23, 2013 By Matthew Wallin

Do I Have The Right to Refuse a Field Sobriety Test For a DUI?

When you are stopped for suspicion of driving while under the influence pursuant to California Vehicle Code 23152, it is your right to refuse to take a field sobriety test because you have not been arrested yet. At Wallin & Klarich, we advise our clients to politely refuse to take any field sobriety tests because they are rarely – if ever – beneficial to your case. In almost all cases, you are simply helping the arresting officer build a case against you.

Although refusing to take a field sobriety test can result in an easier case to win at trial, you must understand that there are other important consequences to refusing to take a field sobriety test. Depending on the particular circumstances in your case, your Southern California DUI defense attorney at Wallin & Klarich will be able to counsel you on the consequences you could face even though you refused to take a field sobriety test.

Field Sobriety Tests

The National Highway Traffic Safety Administration (NHTSA) established the standard field sobriety tests that officers administer during DUI stops in order to give police officers probable cause to arrest drivers who exhibit symptoms of intoxication. There are three standard field sobriety tests that are administered in traffic stops: the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, and the One Leg Stand Test. Each of these tests is designed to cause drivers who are impaired by drugs or alcohol to display symptoms of their intoxication.

Horizontal Gaze Nystagmus Test

The Horizontal and Vertical Gaze Nystagmus tests require the officer to hold an object at a certain distance away from your face and move the object from side-to-side and top-to-bottom while you keep your eyes focused on the object. During the test, the officer will watch your eyes for distinct and sustained nystagmus.

Nystagmus is the involuntary jerking of the eyes that ordinarily occurs in everyone as the eyes gaze to the side, but is more distinct and pronounced while you are intoxicated. If you exhibit distinct and sustained nystagmus in your eyes, you will likely fail the test – even if you display nystagmus because of a medical condition, your work conditions, or simple fatigue.

Walk and Turn Test

When the officer asks that you perform the Walk and Turn Test, you will be required to take nine (9) heel-to-toe steps on a straight line (real or imaginary, depending on circumstances) forward and back for a total of twenty 18 steps. You will be required to stand in the heel-toe position while the officer gives instructions, count your steps out loud as you perform them, and pivot in a very particular fashion involving multiple steps.

During this test, the officer will be observing you for signs of impairment under the rationale that the test forces you to perform a divided attention task, where you have to keep track of multiple things at once. NHTSA states that there are eight indicators of impairment that the officer is looking for:

  1. Failing to touch your feet heel-to-toe
  2. Raising your arms for balance
  3. Stepping off of the line
  4. Becoming unbalanced while listening to instructions
  5. Beginning before instruction finishes
  6. Stopping the test to regain balance
  7. Making an improper turn; OR
  8. Taking an incorrect number of steps

Also, officers routinely consider improperly counting your steps as an additional sign of impairment. If you exhibit two or more of these indicators during the test, NHTSA states that it is likely your BAC is above 0.08 and you will fail the Walk and Turn Test.

This test is particularly troublesome for you because of the sheer number of times you can fail the test (2 while being instructed and at least 6 indicators for each of 18 steps, leading to a minimum of 110 possible chances to exhibit a sign of impairment). Simply put, if you exhibit signs of impairment in only one of your steps, you will likely fail the sobriety test.

Performing the Walk and Turn Test is perhaps the most likely field sobriety test to hurt your chances at a successful defense to your DUI charge. It will take an experienced Southern California DUI defense attorney to combat your results if you fail it.

One Leg Stand Test

The One Leg Stand Test is the third and final standard field sobriety test recognized by NHTSA. The test requires you to stand on one leg of your choosing, with your foot raised approximately six inches off of the ground, with your hands at your side, and count aloud by thousands until told to stop by the officer. The officer will observe you for 30 seconds. During the test, the officer will be looking for at least four indicators of impairment, including:

  1. Swaying while balancing
  2. Using your arms to balance
  3. Hopping to maintain your balance; AND
  4. Putting your foot down before being told to do so

If you exhibit two or more of these indicators of impairment, then you fail the test. Like the Walk and Turn Test, the officer will be looking for any of the four indicators for the entire 30 second duration, leading to many chances for you to exhibit a symptom of impairment. Even if you perform the test well for the first 25 seconds, but begin to sway and use your arms to balance in the last five seconds, the officer will likely say that you have failed the test.

Improper Testing Procedures

These tests are all difficult and often lead to a sober person failing them because they require you to perform tasks that most people ordinarily do not perform regularly. They are intentionally designed in such a way that most people will exhibit some signs of impairment, even if they are sober. If you have a medical condition, your chances of failing one of the tests is increased even more, as officers routinely do not ask adequate questions to determine whether you have a condition which would explain why you exhibit one of the signs of impairment. For instance, if you recently had surgery on your knees, you likely will not have the strength in your legs to balance for the Walk and Turn and One Leg Stand tests.

Furthermore, the standard field sobriety tests were designed for ideal lab conditions and officers are trained only under these circumstances (i.e., adequate lighting, level road, no traffic, no rain, etc.). However, officers almost always administer these tests in conditions that are not ideal to determine impairment. Just one inadequate condition can lead to you exhibiting a false sign of impairment. For example, if the officer administers the Horizontal Gaze Nystagmus test to you while you are facing his car and he left his overhead lights on, you will likely exhibit pronounced nystagmus as your eyes try to keep track of the object while the officer’s squad car lights are flashing behind it.

If you are arrested for DUI because you failed the standard field sobriety tests, your Southern California DUI defense attorney at Wallin & Klarich will be able to examine the particular circumstances in your case in order to fight the results.

Refusing to Take a Field Sobriety Test

You must remember that you are not required to submit to any kind of standard field sobriety testing and you should politely refuse if the officer requests you submit to them. While refusing to take the tests will likely lead to the officer arresting you for a DUI, you will not have the risk of failing a field sobriety test that was improperly conducted.

California DUI Defense Attorney

At Wallin & Klarich, we have over 30 years of experience successfully challenging failed field sobriety tests in our clients’ DUI cases. Our attorneys use the most proven methods when fighting the evidence against your case. We care about our clients and we will be there for you when you call us.

Call us today at (877) 4-NO-JAIL or (877) 466-5245. Our offices are located throughout Southern California in Orange County, Los Angeles, Ventura, San Diego, Torrance, Riverside, San Bernardino, Victorville, Sherman Oaks, and West Covina. We will be there when you call.

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