When you are pulled over for suspected DUI, you will often be expected to perform a series of tests. They refer to this battery of trials as Field Sobriety Testing. Some of the more commonly used tests are:
- Stand on one foot while counting
- Walk a straight line, heel to toe for s specific distance
- With arms stretched out, touch your finger to the tip of your nose.
- Repeat the alphabet from Z to A
- Nystagmus or Horizontal Gaze Test. You’re asked to follow the motion of a pen held a foot from your face.
In New Jersey, however, the three acceptable version of Field Sobriety Testing are the one leg stand, the walk-and-turn test, and the horizontal gaze nystagmus test. There is a margin of error for any of these tests. We will look at what makes field sobriety testing problematic, and also talk about how your DUI Lawyer can challenge the validity of these tests.
Reliability of Sobriety Testing
When it comes to sobriety testing, one of the primary concerns is whether or not the tests are reliable. For example, the New Jersey Supreme Court has found that the Horizontal Gaze Nystagmus test is almost entirely unreliable. Additionally, studies have found the One Leg Stand test is reliable only 65% of the time. Meaning, even if the officer tells the recipient exactly how to perform the test, with no confusion on the recipient’s part, 35% of those tests are unreliable. The Walk-and-Turn test doesn’t fare much better. This test is dependable about 68% of the time. The same caveats of proper instruction and understanding apply. Being invalid 32% of the time is a pretty large margin of error. So, as you can clearly see, Field Sobriety Tests are not foolproof tests.
In addition to the concerns about reliability, there are several other situations where these tests can be problematic.
Other Challenges to Accurate Sobriety Testing
In addition to the reliability, several other factors can affect the results of sobriety testing.
A person’s physical condition might prevent them from being able to complete the test accurately. For example, if you have an injury to your knee, you would have a tough time passing a one-leg stand on that leg. Or maybe you have a condition like Multiple Sclerosis that affects your balance. If that were the case, a walk and turn test might be a real challenge for you, even if you haven’t had anything to drink. So, you can clearly see how that might be a problem.
In addition to medical conditions, other aspects of your physical state could impact the quality of field sobriety testing. If you are overweight, you might have issues. Or, if you are a senior citizen, any of these tests could be challenging to complete. Even the anxiety of being stopped by the police could impact how well you perform any of the tests.
Weather, Lighting, and Location
Let us, for a moment, consider the scene of a traffic stop; you’re pulled over, probably along the shoulder of a busy road. The officer expects you to get out of the vehicle, cars flying by, the wind buffeting you. The noise level is probably pretty high as well.
In addition to the potholes and litter, the shoulder of the road is likely to be uneven and narrow. Add to that the flashing lights and the strobe light effect from the oncoming traffic, even an entirely sober person might find it difficult to complete the tests.
The Eye Of The Beholder
Another issue with field sobriety testing is its subjectivity. The opinion of an officer subjected to the same environmental concerns we cited above, could also skew the results of the test. So, even if you performed the tests without any problems, the officer could still believe you failed and arrest you for driving under the influence.
Keep in mind, you do have the right to refuse the test. Unfortunately, refusal almost invariably results in an arrest. But if you are confident you haven’t been drinking and are not under the influence at all, check with your attorney to see if this is the best course of action for you.
Remember, though you have the right to refuse field sobriety testing, it is your duty to take a breathalyzer test at the station if they bring you in. Refusing the breath test has automatic consequences and could result in a “refusal charge.” Being charged with refusal is basically the same as a DUI, only harder to beat.
As you can see, there are many scenarios and situations that make field sobriety testing problematic. The bright side is, because your DUI Attorney knows all these facts, they may have a valid and lawful way to challenge the results on your behalf. Always stay informed, and know your rights.