Field sobriety tests (FSTs) are common when being stopped by the police for a DUI in Nevada. This standardized procedure may follow a few steps, including the penlight test or the horizontal gaze (nystagmus if you want to be more specific). It involves asking you to walk, turn, and perform the one-legged stand (keep one leg suspended in air and count to 30).
However, it is essential to note that these tests aren’t legally required. Even if you are suspected of a DUI, you can politely decline.
Although these FSTs were developed by the National Highway Traffic Safety Administration (NHTSA) to prevent DUI accidents, they may not always be reliable.
Why Would an FST Produce an Unreliable Result?
FSTs should be administered by law enforcement officers as they are regularly educated and instructed on how to perform them. However, since they aren’t perfect indicators, the individual has every right to decline.
Often a person may fail an FST due to other factors completely unrelated to any drug or alcohol use.
- The police officer might not have administered the test accurately.
- The person might not be used to the surroundings.
- The person might fail the FST due to certain medications, fatigue, illness, or an injury.
In most cases, skilled Nevada defense attorneys can prove that a failed FST score doesn’t necessarily indicate that you were driving under the influence. This can lead to dropped DUI charges.
Essential Questions Regarding FSTs
Here are some questions you may have about FSTs;
1. Do I Need to Take Field Sobriety Tests?
FSTs aren’t required to be taken in Nevada, even though the authorities may lead you to believe they are. Regardless, you can politely decline to take the tests. This can put you in a much better position in the courtroom.
However, you must remember that declining the FSTs might lead the police to offer to arrest you, as they may assume you are hiding something. Here are some surprising facts you should know about FSTs;
- Officers cannot administer FSTs to DUI suspects who are too injured to take the test.
- Officers are not allowed to administer FSTs in unsafe and inappropriate spaces.
Remember that in some states, the law may require you to submit to the test. Review state laws carefully before refusing to submit to an FST.
2. Is an FST Scientifically Valid?
The accuracy of FSTs might be low because not everyone who fails the FST is under the influence. Although the reliability rate for FSTs determining DUI was 77% for horizontal gaze nystagmus, 68% for walk and turn, and 65% for the one-legged stand, it isn’t sufficient to prove the driver is driving under the influence.
The FSTs are administered by police officers who receive instructions from the US Department of Transportation for proper procedure. This allows them to notice clues that can catch DUI drivers. This evidence is then used in court.
Failed FSTs are argued to indicate that the driver’s judgment was impaired by alcohol or drugs with a blood alcohol content of 0.08% or higher. However, false positives are very possible.
The driver could just as easily fail the FST due to the following:
- Poor conditions such as an unstable or slippery sidewalk, bad weather, and bad lighting prevent the officer from making an informed judgment
- Unsuitable footwear or uncomfortable clothing
- Visual or auditory distractions, such as traffic, sirens, bright lights, loud honks, or spectators
- Physical or medical conditions such as fatigue, vertigo, back and leg problems, or a reaction to certain medications
- Physical limitations such as old age, injury, or disability
- Mental conditions such as anxiety, mental disorders, or disabilities
- Officer misconduct, such as intimidation, incorrect instructions, leading statements, distracting movements, or bias
3. Can an Attorney Argue Against My FST Results in Court?
There are many ways for an attorney to prove FSTs wrong in court. Since many clients are experiencing false positives, it isn’t impossible to prove the results are flawed. Here are some arguments we can use as experienced attorneys in the state of Nevada;
The Inherent Unreliability of FSTs
FSTs are inherently unreliable indicators of intoxication. In fact, 25% of people who fail FSTs are sober; the test is only reliable 65% to 77% of the time.
Furthermore, FSTs are only accurate when applied to healthy and fit subjects that aren’t fatigued or mentally compromised. They are also the most accurate in calm settings or when the subject wears flexible clothing. Many of these factors aren’t present when an officer conducts an FST.
For many people, taking an FST is anxiety-inducing in itself. Add to that the strange surroundings and intimidating police officers, any sober person could fail the test!
Improper Setting
Often, improper settings can lead to a false positive. For example, a place you may not know well or an uneven footpath, and even flashing lights can cause you to get unbalanced.
You could also experience bad weather or simply walk in heels when subjected to the test. In these conditions, performing to the best of your abilities is hard.
This is good news for you. In such cases, you need to contact a reliable and experienced attorney who can conduct a thorough investigation and find any evidence to support your claim.
Physical and Medical Conditions
Many conditions may lead to vertigo, causing you to get unbalanced and fail the test. Head injuries could cause nystagmus, and back strains can make it hard to stand on one leg. Mental illnesses such as anxiety may cause you to experience brain fog when an officer provides multiple instructions.
Now for the good news; it is quite easy for a defense attorney to use your medical records to show that you weren’t capable of passing the FSTs.
Mistakes Made by the Officer
Since FSTs are subjective to some extent, bias may cause the officer to make certain mistakes. They might notice a clue where there was none, or a moment of failure, which may just have been the shadows playing tricks. A failure to process the rules is often a bigger reason for failed FSTs than intoxication.
In these cases, the police officer’s dashcam footage can be used to argue your case. Your defense attorney would also cross-examine the officers during the DMV hearing, where you argue for the revocation of your driver’s license. Any loopholes in the officers’ statements can be used in court.
Any discrepancies could be used to bargain for a reduced charge. The charge may be reduced to reckless driving or a dismissal.
All About Standardized Field Sobriety Tests in Nevada
Standardized FSTs are physical exercises typically requested by the police when they suspect someone driving under the influence. These include three separate tests;
- The Horizontal Gaze Nystagmus
- The One-Legged Stand
- The Walk and Turn
1. The Horizontal Gaze Nystagmus
In this case, the police officer usually asks you to keep your eyes fixed on an object while the officer moves it from side to side. This object is usually a penlight, which is why the test is often called the pen test. As the officer moves the pen from side to side, you are required to follow it with your eyes.
During this test, the officer may observe your attention and any signs of your pupils jerking. This is called “nystagmus,” which is usually associated with intoxicated driving. Here are some common ways drivers fail the test:
- Inability to follow the pen smoothly: This is the most important indicator and is usually observed when the pupil involuntarily jerks as it follows the officer’s penlight.
- Distinct nystagmus at maximum deviation: This is when the officer would hold the penlight very far away to the side for up to four seconds and observe how the pupils react to “maximum deviation.” Any jerking of the pupils can indicate intoxication.
- Onset prior to 45 degrees: In this case, the officer attempts to study any pupil jerks as they move the penlight back and forth. The jerk is usually noticed before the penlight is at a 45-degree angle from the driver’s face.
The more the jerks, the more reason the officer has to give you a failing score. The maximum number of clues each eye can exhibit is three. If a suspect exhibits four or more clues, they receive a failing score.
2. The One-Legged Stand
The one-legged stand is usually the one where most people make a mistake. This is where the officer requires you to stand on one leg, in one place, while extending the other leg forward around six inches above the ground. You also need to count in the following manner:
One one-thousand, two one-thousand, three one-thousand…
This needs to be done up to thirty. Here, the officers are attempting to gauge your attention as your mind attempts to multitask and engage multiple areas of the brain. Here are some common clues of failure;
- Hops
- Using the arms to balance
- Swaying
- Putting the raised foot down
Two or more clues may lead to a failing score. Moreover, even though the counting of the numbers isn’t listed as a clue above, failing to count accurately can still lead an officer to suspect you.
3. The Walk and Turn
The walk and turn is a test based on measuring physical agility and coordination. The officer would tell you to take nine steps, heel to toe, back and forth, in a straight line. You also need to keep on foot on the ground as you pivot around on it when you reach the halfway point. If that’s not enough, you must also count the numbers aloud.
It is natural for anyone to fail in multiple areas of this test. The clues the officers normally look for include;
- A loss of balance due to distraction when the officer provides instructions
- Starting your walk before the officer is done with the instructions
- Pausing during your walk (slow walks are allowed)
- Failing to walk heel to toe
- Failing to walk in the straight line
- Using your arms for balance
- Losing your balance
- Taking more or less than the required amount of steps
Two or more clues lead to a failure.
The Events Surrounding the Tests
The test is not the only clue that is used by the officer for the final verdict. Some events that occur before and after the test may also impact your court proceedings;
Before the FSTs
Before you are tested by the officer, you may be asked some questions which test basic cognition. These include simple instructions such as taking out your license and registration.
During this time, an officer might be observing you for any odor of substances such as marijuana, alcohol, or any other drug. They may also look for bloodshot, watery, or glassy eyes, a flushed appearance, failure to follow instructions, and slower responses. Any drugs or alcohol in the vehicle may also lead to an FST.
After the FSTs
Passing the FSTs usually leads to a release. You may be held back for a speeding ticket. However, other factors may lead an officer to believe that you are driving under the influence. It is up to the officer’s discretion to subject you to a DUI.
In the case where you fail the FSTs, the police officer could ask you to submit to a preliminary breath test (PBT). This is whereby they check for blood alcohol levels that are 0.08% or higher than that. This is the legal limit. Depending on these results, the officer may decide to place you under arrest for DUI.
Do I Need to Submit to a DUI Breath Test or Other Blood Tests?
Nevada law requires drivers to submit to a DUI breath test if reasonable grounds exist. If the officer suspects the usage of controlled substances, you must take a blood test. Refusal to submit to this test may lead the officer to take the sample by force after receiving a warrant.
Certain non-standardized FSTs exist. However, they are rarely used by Nevada police due to a lack of evidence of the correlation between test results and driver’s intoxication. These include;
1. Finger-to-Nose Test
This involves closing your eyes and touching your nose with the index finger of your dominant arm.
2. Finger Count Test
An officer would usually hold up a number of fingers and ask you to count them. This is to test whether you have blurry vision.
3. ABC Test
During this test, the officer would ask you to recite a part of the alphabet.
4. Numbers Backward Test
As the name suggests, this requires counting backwards from one number to another.
5. Hand Pat Test
This involves extending one arm with the palm upwards and placing the other hand on top of the first palm downwards. The top hand would pat the bottom and keep flipping it 180 degrees between pats. Each time you pat, you count aloud;
One two, one two, one two…
You are required to pat twice each time.
6. Rhomberg Stationary Balance Test
You must stand upright in this test, with both your feet together, and lean your head back with your arms to the side.
7. Vertical Gaze Nystagmus
This is a spin on the nystagmus test mentioned above. Here the officer holds a penlight a foot away from your nose and moves it up and down. You are required to keep your head still and follow it with your pupils.
You don’t need to agree to any of these tests. Moreover, if these tests are administered by an officer, you can get your attorney to get them excluded from the evidence.
While the NHTSA considers the OLS, WAT, and HGN tests to be standardized, even these tests can lead to false positives.
Looking for Attorneys for Your DUI Case?
If you are suspected of driving while being intoxicated and are charged with a felony DUI, call Bourassa Law Group and receive a consultation today. Our experienced attorneys can investigate all details of your DUI case, including FSTs, and get your charges reduced or dismissed. They can also guide you all the way through to trial.
Our Nevada DUI lawyers help drivers all across Nevada, including Las Vegas, Washoe County, Reno, Moapa, Elko, Pahrump, Carson City, Laughlin, Henderson, Clark County, Mesquite, and Tonopah. Call us for more information!