As a private criminal defense attorney, DWIs are a big part of our caseload. It’s pretty common for people accused of DWI to tell us that they “passed the field sobriety tests” but were arrested anyway. Unfortunately, the people who say this are almost always wrong. This is because most people don’t understand the purpose of field sobriety tests and what they’re really being tested on. A Minneapolis, MN DWI lawyer can help individuals understand how field sobriety tests are used during a DWI investigation, evaluate whether law enforcement followed proper procedures, and protect their rights throughout the criminal justice process.
The typical DWI investigation is going to involve three tests, followed by a breath test. These three tests are known as the “Standardized Field Sobriety Tests” because they are the result of studies that were conducted to find the best methods of easily testing people on the roadside to see if they’re impaired. The three standard tests are known as the “Horizontal Gaze Nystagmus Test”, the “9 Step Walk and Turn Test”, and the “One Legged Stand Test.” They are typically administered in that order.
The “Horizontal Gaze Nystagmus Test” (or HGN) is an eye test. The officer passes his or her finger back in forth in front of the driver’s face and instructs the driver to keep their head stationary while following the finger back and forth with their eyes. The officer then watches the eyes as the finger is moved out to the limit of the driver’s field of vision, making the driver look off to the side. The officer is looking for “nystagmus”, which are small, jerky motions of the eye. Alcohol intoxication impacts our neurological system in ways that interfere with our ability to smoothly track a moving object with our eyes, resulting in jerkiness in the eye movement that the officer can see.
When administering this test, the officer is looking for three distinct things:
- Lack of Smooth Pursuit. Here, the officer is testing to see if the eyeball is smoothly tracking the officer’s finger as it moves side to side. In a person who is not impaired by alcohol, the eye should move smoothly from side to side, like a windshield wiper moving across a wet windshield. If a person is impaired, the eye will struggle to follow smoothly and look more like a windshield wiper moving across a dry window.
- Distinct and Sustained Nystagmus at Maximum Deviation. Here, the officer is observing the behavior of the driver’s eye when it is moved as far to the side as possible. The driver is looking as far to the side as they can without moving their head. In this position, a person who is impaired by alcohol will display a very clear jerkiness or bounce to their eye. The eye sort of flickers back and forth as it struggles to hold a position far to the side of their field of vision. A sober person’s eye is typically able to hold the position without the obvious bounce.
- Onset of Nystagmus Prior to 45 Degrees. Here, the officer is judging where the nystagmus begins to appear as the finger moves off to the side towards the driver’s peripheral vision. The earlier the nystagmus begins to appear, the more impaired the driver is likely to be. If nystagmus appears before the finger has reached 45 degrees off of center (center meaning looking straight ahead), this is considered to be a sign the driver is impaired.
Each of these is known as a “clue”. The officer checks for all three in each eye, making for a total of 6 possible clues. After testing for each clue, the officer adds the total number of clues observed to come up with a final score. According to the studies, a person exhibiting 4 or more clues has an 88% chance of having an alcohol concentration of at least .08.
Nystagmus isn’t something that a person can feel occurring. It is not possible for someone to know whether their eyes are experiencing nystagmus as they stand on the side of the road looking at the officer’s finger. For this reason, it’s impossible for someone to know whether they passed or failed.
Field Sobriety Tests – What the Police are Really Looking For (Part 2)
For part 2 of our discussion of Standardized Field Sobriety Tests (SFSTs), we are discussing the second test of the standard 3 test protocol – the 9 Step Walk and Turn.
The 9 Step Walk and Turn test (often called the “walk the line test”) is a great example of people not understanding what the officer is actually looking for. There are many details and nuances to this test that aren’t obvious to the person taking the test. The process goes like this:
- The officer tells the driver to imagine a straight line extending out in front of them. They are instructed to place their left foot on the line, and then their right foot in front of the left, touching heel-to-toe, with their arms at their sides. The driver is then to hold that position while the officer gives more instructions.
- The officer then states, “When I tell you to start, I want you to take a series of 9 heel-to-toe steps down the line. When you reach your ninth step, keep that foot planted and take a series of small steps with your other foot to turn around, and then walk 9 heel-to-toe steps back down the line.” At this point, the officer will demonstrate the test, walking only 3 steps instead of the 9 the driver is supposed to do.
- The final piece of the instructions state, “While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud. Once you start walking, don’t stop until you’ve finished the test. You may now begin.”
The tricky part of this test is that the officer is watching for all sorts of things that the driver doesn’t realize they’re being tested on. Just like the horizontal gaze nystagmus test, this test also has “clues” that the officer is watching. Remember back at the beginning of the test when the officer told you to stand heel-to-toe on the line and hold that position while the officer explained the test? Not doing so is one clue. In fact, there are a total of 8 clues for this test.
- Failure to keep balance while listening to the instructions. Stepping off the line is one clue. It doesn’t matter if the driver lost their balance and fell out of position, or if they just forgot to remain in the heel-to-toe position. Failure to stay in the position is a clue.
- Starts the test too soon. If you start the test before the officer tells you to, that’s another clue.
- Stops while walking. The officer instructed you not to stop the test until you were done. Stopping in the middle is another strike against you.
- Does not touch heel-to-toe. If just one of your 18 steps leaves a half inch or more between your feet, that’s another clue.
- Steps off the line. Again, if just one of your 18 steps is off the line, the officer will count that against you.
- Uses arms for balance. You were instructed to keep your arms at your sides. If you raise them more than 6 inches away from your body, you’ve scored another clue.
- Improper Turn. If you don’t perform the turn exactly the way the officer described and demonstrated, it will be counted against you. In my experience, having handled thousands of DWI cases, nearly everyone gets this wrong.
- Incorrect number of steps. The officer told you to take 9 steps down and 9 steps back. Misstep or lose track and it counts against you.
After administering the test, the officer will again count up all of the clues he or she observed during the test. According to the research, a person exhibiting two or more of the 8 total clues on this test has a 79% chance of being at or above a .08 alcohol concentration.
It is common for people to believe that they’ve passed the test if they were able to walk the line successfully, but as you can see, this isn’t necessarily the case. A person who fails to maintain the starting position and starts the test too soon has failed the test, even if they were able to walk the line perfectly fine.
Field Sobriety Tests – What the Police are Really Looking For (Part 3)
Today we’re discussing the third of the standardized field sobriety tests – the one legged stand. This test is deceptively simple – the officer asks the driver to stand with one foot raised in the air, balancing on one leg. But like the first two tests we discussed, very few people understand exactly what the officer is looking for.
For this test, the officer asks the driver to stand with their feet touching together and their arms down at their sides, and to maintain that position while the officer explains the test. The officer then tells the driver,
“When I tell you to start, raise either leg with the foot approximately 6 inches off the ground, keeping your foot parallel to the ground. Keep both legs straight and your arms at your side. While holding that position, count out loud, ‘one thousand one, one thousand two’ and so on, until told to stop. Keep your arms at your sides and keep watching the raised foot.”
The officer then askes the driver if they have any questions, and, if not, instructs the driver to start, while the officer times 30 seconds on their watch or phone. Then, the officer observes, looking for four separate clues:
- Sways while balancing. If the person sways back and forth while balancing, or if their foot sways, this counts as a clue.
- Uses arms for balance. If the driver moves their arms 6 inches or more away from their body to keep balance, another clue is counted.
- Hopping. If the driver has to hop on the plant foot in order to maintain balance, that counts as a clue.
- Puts foot on ground. If the driver is unable to keep their foot raised in the air as directed, another clue is counted.
As with the other tests, after completing the test, the officer will total up the number of clues observed. According to the research, a person showing two or more clues has an 83% chance of having an alcohol concentration of .08 or more. And here again, it’s easy to see how someone might feel like they passed the test when in fact they failed. A person who successfully keeps their foot in the air for 30 seconds without hopping is still considered to have failed the test if they used their arms to balance and swayed during the test.
This series of blog posts has only scratched the surface of field sobriety tests and the complex nuances behind them. There are a whole host of other issues that come into play as well, such as environmental conditions, medical conditions, naturally occurring nystagmus, and more. And the training used to teach officers how to administer the tests explicitly says that the test must be administered in a very specific way. Any deviation from that training can invalidate the tests – which means a skilled lawyer who understands how the tests are supposed to be done has a massive advantage in court.
Every DWI case is unique, and the outcome can depend on the specific facts and evidence involved. At Archambault Criminal Defense, we have experience handling DWI cases and can help you understand your rights and the options available to you.
