Unlike blood and breath testing, submitting to "field sobriety tests" is strictly voluntary, although few police officers will tell you so. In many respects, these tests are designed for failure and of the several tests the officer might ask you to take, only three have been shown to have any relevance to proving legal intoxication. The alphabet test, the finger-to-nose test, the finger-count test and the standing balance (usually administered along with the finger-to-nose test) are scientifically proven to not correlate to legal intoxication.
According to the National Highway Traffic Safety Administration (NHTSA), the only tests that have been shown to have some relevance to establishing legal intoxication are the One Leg Stand, the Walk and Turn and the Horizontal Gaze Nystagmus (HGN).
HGN - In this test the officer has you follow a penlight (or finger or pencil) and attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation). If this occurs before 45 degrees, it theoretically indicates a blood alcohol concentration over .05%. The smoothness of the eye's tracking is also a factor, as is the type of jerking when the eye is as far to the side as it can go.
This test has been shown to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset, and make what amounts to a medical diagnosis that is best left to neurologists and ophthalmologists. Even under laboratory conditions, this test has only been established of be accurate in predicting a blood alcohol content above .10% 77% of the time.
One Leg Stand - In this test you will be asked to stand on one foot for approximately 30 seconds, while the officer looks for four things:
- Do you sway while balancing?
- Do you use your arms to balance?
- Do you hop?
- Do you put your foot down?
According to NHTSA if you are unable to satisfactorily perform this test by doing two or more of the above, there is a 65% probability that you have a blood alcohol concentration of .10% or more.
Heel-to-Toe - In this test the officer is required to find a visible line. You will be asked to stand on this line in a heel-to-toe position while receiving instructions. The officer will have you walk on this line for nine steps, heel to toe, turn in a specified manner, and walk nine steps back. The officer will be looking for eight things:
- Can you balance during the instruction phase?
- Do you start the test too soon?
- Do you stop while walking?
- Do you touch heel-to-toe each step?
- Do you step off of the line?
- Do you use your arms for balance?
- Do you lose your balance on the turn, or do you turn incorrectly?
- Do you take the wrong number of steps?
An additional test that is frequently requested is a preliminary or portable breath test (PBT). That test is discussed elsewhere in this section of the web site
A driver who refuses to take the "field sobriety tests" forces the officer to make the decision to arrest based upon whatever evidence the officer has obtained prior to the point the tests were refused. The reality is officers have usually made up their mind to arrest before they give the FSTs; the tests are simply additional evidence to use against you in court. While an arrest may be avoided if the tests are taken and successfully completed, the tests are so subjective (what appears to be "swaying" to one officer may not be to another) that the best action may well be to politely decline until you have had the opportunity to talk to a lawyer.
There are two caveats. One is that refusing the tests will definitely heighten the officer's suspicion and may result in an immediate arrest. Second, a prosecutor may be allowed to argue that your refusal evidences a consciousness of guilt. Regardless, if you have been drinking, submitting to "field sobriety tests" is a momentous decision that will likely affect your case adversely.
Do I have to take a portable breath test (PBT)?
A PBT is a hand held breath-testing device that is carried by most police officers in their patrol car. It is given at roadside along with other "field sobriety tests" for the stated purpose of assisting the officer in deciding whether or not to make an arrest. Occasionally the officer will use the results to exclude alcohol intoxication where the officer suspects drugs. The results of the PBT are not admissible in trial, but, if presented properly by the prosecutor, may be used in certain preliminary hearings held to establish whether or not the officer had legal cause to arrest.
Submitting to the PBT is strictly voluntary, although the driver is rarely informed of that. Refusal to submit to the test will usually result in an arrest for DUI. But the fact of a refusal is not admissible at trial, and you will not lose your license or suffer any other sanctions for refusing.
Accordingly, there is a critical difference between the PBT and the "official" breath test that will be requested after arrest at the police station, known as the BAC Verifier DataMaster II. Do not confuse the two tests! You do not have to submit to the PBT on the street. But if you refuse to take the test on the DataMaster at the police station you will face at least a one-year license revocation.
Some people think that because they took a breath test on the street that they don't need to take another one at the police station because the difference is not adequately explained to them. Don't make the same mistake! If arrested for DUI, ask to speak to a lawyer immediately.
Does the officer have to read me my rights? What if he/she doesn't? Do I have the right to talk to a lawyer?
Almost everyone is familiar with the "Miranda rights" that are read to a person who has been arrested. But when those rights must be read depends upon the facts and circumstances of each case. Originally, the Miranda rule was intended to insure that citizens were aware of their rights before being questioned by the police. But the application of the rule, and the consequences for the police violating it, has been expanded and further defined by statutes, court rules and subsequent court decisions.
Generally speaking, the officer must read you your rights when you are arrested. If the officer fails to do so, the prosecution cannot use any statements you make in response to questions, no matter how important the information is to the prosecutor's case. An exception can occur if, at your trial, you testify to facts different from what you told the officer. Then the prosecutor may be able to ask the officer what you said on the night of your arrest.
In Washington, the rule has been expanded from the original Miranda rule, which simply provided that a suspect has the right to remain silent and not answer questions until talking with a lawyer. As a result of a court rule adopted by the Washington State Supreme Court, an arrested person has the right to talk to an attorney for any purpose, not just to find out whether or not to answer questions. This is particularly important in DUI cases, because it means an arrested person can talk to an attorney to find out whether or not to take a breath test, as well as other things he or she should or should not do while in custody, or after release.
Failure to advise a person of the Miranda rights typically does not result in dismissal of the case. The remedy is suppression or exclusion of evidence obtained after the violation of the suspect's rights has occurred up to the point in time that the officer complies with the rule by advising the person of the Miranda rights.
It is a fact of life that most people do waive their rights and agree to talk to the officer. That is usually based on a mistaken belief that being cooperative will help their case. In questioning a suspect, a police officer is doing his or her job and looking for evidence that will incriminate the suspect. Innocent statements can be taken out of context, or be misinterpreted in such a manner that they can be devastating to an otherwise defensible case.
Since you have the absolute right to decline police questioning, your silence cannot be used against you in court as showing some consciousness of guilt, nor can the fact that you ask to speak to a lawyer.
Do I have to take a breath test at the police station?
You do have the right to refuse to take the official breath test, but the consequences can be severe, and you can, and probably will, still be prosecuted for DUI. In Washington, there are three official sanctions:
- Your driver's license can be suspended for a minimum of one year, or substantially longer if you have prior DUI convictions, or alcohol related administrative license suspensions.
- The fact of refusal can be introduced into evidence as "consciousness of guilt." In other words, the prosecutor will claim that you refused because you knew you would flunk the test.
- A test refusal will increase the mandatory minimum sentence that the judge must impose if you are found guilty.
If you refuse the test the Department of Licensing (DOL) will revoke your license for at least one year. Prior DUIs can increase the revocation to two years. While an Occupational License may be available after 90 days (one year if a second administrative action), an Ignition Interlock Device will be required and you will be required to carry high risk insurance for three years following reinstatement of your license.
You are entitled to a hearing before DOL revokes your license, but only if you request it by way of a hearing request form provided by the officer within 30 days of the date of arrest, and pay $200, which can be waived if you are indigent. If you did not received the form, or if you lose it, go to a DOL licensing station and request a hearing request form. You may download the hearing request form at the following link: Hearing Request Form.
Refusals increase the mandatory minimum sentence that must be imposed in the event of a conviction. In fact, the courts treat a test refusal the same as if the test result was over a .15 alcohol concentration! The fine will increase, the jail time will increase, and the additional license suspension resulting from a conviction will increase.
The DOL's license revocation will stand if you are unsuccessful in the administrative hearing regardless of the outcome of the criminal prosecution. Even if you are found not guilty, you will still lose your license for refusing the test!
It is usually easier to deal with a breath test in trial result than to successfully contest the revocation, so in most circumstances it is advisable to take the test. However, you should always call a lawyer if you are arrested for DUI.