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DUI Phase 5 – Field Sobriety

Standard Field Sobriety Tests: The Standard Field Sobriety tests are a series of mental and physical tests that determine the driver’s ability to follow instructions, maintain balance and coordination. Basically, these tests require the suspected DUI driver to concentrate on more than one thing at the same time.  Also called divided attention tests.

Field sobriety tests In Colorado are voluntary (this does not include blood or breath tests, Colorado requires a driver to complete a blood or breath test when a cop has probable cause to believe the driver has been drinking). Often a driver will decide to perform the tests in the hopes that if they do “OK” the cop will let them go. However, it is more likely the police officer is attempting to gather evidence for probable cause to request a chemical test (blood or breath test) and to build a stronger criminal case.

The Sixth Amendment right from the United States Constitution does not raise the right to have an attorney called out to the scene or the place of the stop. This basically means that the driver does not have opportunity to have legal advice regarding the field sobriety tests. The best advice an attorney or lawyer would provide is to politely decline the field sobriety tests including any hand held breath testing devices (portable breath test). An officer can still require a blood test or a breath test from a scientifically reliable breathalyzer, which is a breath test machine at a police station or sub-station.  In Colorado Springs, breath test machines can be found on military bases and colleges.

The standard field sobriety tests recommended by the National Highway Traffic Safety Administration (NHTSA) are:

• Horizontal Gaze Nystagmus (HGN or eye test):
In this test the police officer has the suspected DUI driver stand still. The officer will then take a stimulus (pen, penlight, flashlight, finger, object etc.) and hold it out in front of the driver’s eyes. The officer will ask the driver to follow the object with their eyes without moving their head. The police office is looking for 3 clues; lack of smooth pursuit, distinct jerkiness at maximum deviation, and angle of onset.  Many officers do not know the proper way to conduct this test.  The officer can be questioned by a DUI attorney or DUI lawyer whether at a DMV hearing or in a trial.  The attorney or lawyer may ask the officer to conduct the test in front of the hearing officer, judge, or jury.  The attorney or lawyer will be able to identify if the officer does not hold the stimulus at the appropriate height, or the proper distance from the eyes of the person accused of drunk driving, DUI, DWAI.  The attorney or lawyer can also observed the officers movement of the stimulus that the officer is requiring the suspected drunk driver, person that is DUI or DWA.  Moving the stimulus too fast can result in a false test which causes the person to be charged with a drinking and driving offense.

• Walk & Turn
In the walk and turn test the officer is observing the DUI suspect’s ability to listen to instructions and follow those instructions while demonstrating balance and coordination.
The driver is given a set of instructions that require him / her to stand still until told to start, then using a real or imaginary line, walk nine steps forward touching heel to toe, turn around, walk nine steps back heel to toe.

The officer is specifically looking to see if the suspected DUI driver can keep balance while listening to instructions, starts the test too soon, stops in the middle of the test, does not touch the heel to toe, walks a straight line, raises arms for balance, looses balance while turning, or steps off the line.

An experienced DUI attorney or DUI lawyer will be able to review the tests and insure that only actual clues are being reported as clues that indicated the driver may be driving while drunk, DUI or DWAI.

• One Leg Stand (balancing test)
In the balancing test the DUI suspect is instructed to stand still, raise one foot approximately 6 inches of the ground and count to 30 or 30 seconds.
The officer is looking to see if the DUI suspect sways while balancing, uses arms for balance, puts the raised foot down, or hops on one foot.  Many people cannot hold their foot for 30 seconds and a police officer will take this as a clue that the driver is drunk, DUI or DWAI.  However, the test does not require the driver to hold the foot out for 30 seconds.  An attorney or lawyer that handles drinking and driving cases will be able to evaluate the results and determine if the test was conducted properly.

 

  • Other Field Sobriety Tests: Although not standard DUI intoxication tests, police officers will occasionally use the following tests.

• Alphabet: On the rare occasions this test is used (in Colorado), the DUI suspect is asked to recite the alphabet (without singing it), and may be told to stop at a certain letter. The officer is checking to see if the DUI suspect can remember the alphabet, not sing, and remember to stop at a certain letter.  Although some people that have been charged with DUI tell their attorney or lawyer that they were asked to recite the alphabet backwards, this would be an inappropriate request by the cop.  An experienced DUI attorney or DUI lawyer would love an opportunity to cross examine the police officer that asked a suspected drunk driver to complete this test.

• Counting (backwards): In this test the police officer is asking the DUI suspect to count backwards from, for example, 22 to 11. The officer is checking to see if the DUI suspect can successfully count backwards and remember to stop at 11.

Law Offices of Clifton Black, P.C.