Does the Field Sobriety Test in CA Work?
By otmseo on August 24, 2020
What do surprise balance tests performed for the first time at the side of the road have to with sobriety?
Nothing. Field Sobriety tests have numerous problems. First, there is no baseline of your ability to do the FSEs when you have zero alcohol in your system. Second, the tests are supposed to be standardized, that is the cops are supposed to do them exactly the same every time. They rarely do the tests according to how NHTSA says they are supposed to be done. Third, the cops are looking for evidence against you. The only thing recorded will be what they think you did wrong. Finally, the tests measure balance, but they take away your means of keeping balanced: feet shoulder width apart, looking at the horizon, and keeping your head level for inner ear balance.
The bottom line is: If you are stopped by the cops, and if the cops ask you to perform these exercises, politely decline to do the FSEs UNLESS you have not had anything to drink at all. The results can only hurt you.
A Field Sobriety Test is a very subjective set of divided attention tests. I refer to them as exercises, FSEs, not tests. The officers will always say they aren’t passing you or failing you, they are ‘looking for CLUES’. And the cops will always say you “exhibited all the clues” of intoxication in their field sobriety testing.
What Are the Field Sobriety Exercises?
There are two kinds of FSEs: Standard and Non-standard. Standard FSEs are those that have been shown to have some correlation to being under the influence in a NHTSA (National Highway Traffic Safety Administration) non-peer reviewed study.* The Standard FSEs are: the Horizontal Gaze Nystagmus (HGN); the Walk and Turn; and the One Leg Stand.
The Non-Standard tests include; Romberg balance, touching your nose with your finger; touching your thumb with your finger; or, reciting the alphabet (backwards or forwards, start with ‘Q’).
Horizontal Gaze Nystagmus Exercise.
In the Horizontal gaze nystagmus the cop holds the pencil or his finger 12-15 inches from your face, level with your eyes and moves the it side to side. The cop will say they are looking for 6 ‘clues’ in this test, 3 in each eye: equal pupil size, lack of smooth pursuit, and nystagmus (jerking) of the eye at the extremes. There are really about 20 things they are looking for, including failing to follow instructions and swaying from side to side.
The cops will say that the ‘clues’ they observed showed you are under the influence. 50% of the population has nystagmus at the extremes when sober. You could exhibit nystagmus for a number of reasons, including being up late. (Hint: most DUI stops are late at night.) This is actually a test properly performed by trained Opthamologists (eye doctors) using sophisticated equipment.
The Walk and Turn Exercise
In the Walk and Turn test, you walk 9 steps up, execute a complicated turn and walk nine steps back. The clues are not standing with your left foot in front of right, missing toe with heel (more than 2″), not turning around with small steps, and losing balance. If you exhibit these ‘clues’ it supposedly shows that you are under the influence. The cop doesn’t give you the grading criteria during the instruction phase. Most people can’t do this sober. Older people, overweight people or people with balance, leg or foot problems cannot usually do this.
One Leg Stand
In the One Leg Stand, the cop instructs you to raise your leg and count until he says stop. The officer is looking for clues that you may be impaired. Mostly he is seeing whether you are able to keep your balance past 25 seconds. In this test you are instructed that if you put your foot down, just to pick it up and keep going. However,one of the ‘clues’ that will be held against you is putting your foot down.
The Non-Standard field sobriety exercises are even more absurd.
In the Romberg, the cop instructs you to close your eyes and tilt your head back, count silently in your head and estimate 30 seconds. The cop is looking for 18 ‘clues’ . Mostly they want to see whether your time sense is affected by being under the influence. They will judge you on how close to 30 seconds your estimation is. The instructions say that if you are within 10 seconds +/- you pass.
* Marceline Burns, one of the psychologists who developed the battery used in field sobriety testing has said the tests don’t show either a specific blood alcohol concentration or impairment for the purpose of driving.
If you’ve been arrested for a DUI and there is an breath test involved, call me at 213-479-5322.