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Field Sobriety Tests at an Administrative Per Se/DUI Hearing

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How Do Police Officers Use Field Sobriety Tests?

Imagine standing on the side of a busy interstate freeway with automobiles and semi-trucks screaming past you at high-speed. You are face to face with a uniformed officer who is loud, aggressive and demanding that you submit to a series of balance type tests that would be difficult for a gymnast to perform. The traffic going by is so loud that you can’t hear the officer speaking and when you ask him to repeat himself, he gets angry.

You’ve just come from a dance club and you’re wearing a dress that keeps blowing up and you’re wearing 4″ heels. It’s 50 degrees outside and you’re shivering, but the officer is comfortable in his heavy jacket and gloves. Maybe you’re overweight or elderly. Maybe you’ve had reconstructive surgery on your knees or have a fused spine. You’re staring directly into the bright headlights and spotlights of the patrol car and the officer’s partner is now searching the interior of your car. You’ve never been in this type of trouble before and you are terrified.

Welcome to the world of the DUI investigation. The goal of the Field Sobriety Test (FST) is for a police officer (usually not trained in physiology) to put a driver through a series of psycho-motor tests to determine that person’s ability to safely operate a motor vehicle. Field Sobriety Tests are completely subjective and allow a police officer to interpret a driver’s performance in any fashion that he/she determines appropriate. The officer has the complete power to disregard or ignore pre-existing medical conditions, environmental factors, distractions or fear. Essentially, the officer can see what he wants to see.

Many drivers believe they are “required” to submit to Field Sobriety Tests at the request of a police officer. In fact, FST are not legally required. The only thing a driver is required to do, prior to arrest, is to properly identify himself/herself and to not be physically resistant to an officer. A driver is not required to answer probative questions about where they have been, where they are going, or what they have eaten. Drivers are not required to answer questions regarding the use of alcohol or if they are feeling the effects of alcohol.

Despite this, most drivers feel the obligation to be cooperative with the police and they answer every question posed and perform every test requested. Trust me, in this situation; the officer is not there to be your friend. He is there to make an arrest and he will use the performance of Field Sobriety Tests to justify that arrest.

What Are the Most Common Field Sobriety Tests in a DUI Case?

Most of the Field Sobriety Tests administered by police officers in California today are known as “divided attention tests.” The theory is that those persons who are impaired by alcohol will have difficulty performing multiple tasks at the same time. Also, the actual performance of the FST is not the only thing the law enforcement officer is observing. How closely the driver follows instruction is also being evaluated by the officer.

Below is a list of the most common Field Sobriety Tests being administered by police officers in California:

  • Horizontal Gaze Nystagmus (HGN) -This is a test where the officer will pass a pen light, pen or finger in front of the driver’s face from left to right on a horizontal plane. As the driver tracks the moving stylus with his eyes, the officer is looking for the tell-tale sign of impairment. A horizontal bouncing or twitching of the eyes is “Nystagmus.” Classically, a person who has been drinking will display a varying degree of bouncing in the eyes. This is an involuntary reaction that the driver does not feel. One’s eyes could be bouncing like ping pong balls and they would not feel a thing. The theory is, the more pronounced the nystagmus is or, the sooner the eye begins to bounce, the more intoxicated the driver may be. This is one way to determine if a person has been drinking, however, there are a multitude of other factors which can create this condition. Previous head injuries, the wearing of contact lenses, high doses of caffeine and certain medications can cause the eyes to react in this fashion; and, a certain percentage of the population have naturally occurring nystagmus.
  • One Leg Stand -The officer will instruct the driver to stand with his/her feet firmly on the ground with heels and toes touching. When instructed to begin, the driver is to raise one foot approximately 6 inches off the round and point their toe. With their hands held closely at their sides, the driver is to look at the elevated foot and then count from 1 to 30. The officer will tell the driver that if they drop their foot, they should simply recover and continue counting.

The officer does not tell the driver that if they drop their foot one time, it is considered a failure. They do not tell the driver that using their arms for balance, hopping to maintain balance or failing to count out loud are also considered failures of the test.

  • Walk and Turn – Classically referred to as the “heel to toe,” this test begins with the officer placing the driver in the “position of instruction.” The officer tells the driver to place one foot directly in front of the other with the heel touching the toe. The driver is instructed to remain still, in this position, while the officer completes the remainder of the instructions. The officer will tell the driver, “when I tell you to begin,” to take nine steps in a straight line, touching the heel to the toe on each step. The driver is told to keep his arms at his side and to count each step as he walks. The driver is then told to pivot 180 degrees and take an additional nine steps in the opposite direction.

The officer does not tell the driver that if he/she begins the test before being instructed to do so, it is a failure. Not touching the heel to the toe on each step is a failure. Stepping out of line is a failure. Raising the arms for balance is a failure. Failing to count the steps out loud is a failure and, failing to perform the pivot as instructed is reason for failure. Taking too few or too many steps is a failure of the test.

  • Modified Position of Attention (MPOA) – Sometimes referred to as the “Romberg” this test begins with the officer placing the driver into the position of instruction. The driver is directed to stand with his feet firmly on the ground with heels and toes touching. The driver is instructed, “When I tell you to begin” to tilt his head back, close his eyes and then to silently estimate the passage of 30 seconds in his/her head. The driver is told to keep his/her arms to their side and, when they believe 30 seconds has elapsed, to tilt their head forward, open their eyes and say “now.”

The officer does not tell the driver that incorrectly estimating the passage of time is a failure.
Beginning the test before being instructed is also a failure. Opening the eyes or raising one’s arms for balance is a failure. And the officer will move around the driver to monitor whether or not the driver is “swaying” while tilting his head.

  • Finger to Nose -This test begins with the driver being placed into the position of instruction. The driver is instructed to stand with his/her feet firmly on the ground with the heels and toes touching. The officer instructs the driver to keep his/her arms at their side with the index finger on each hand pointed toward the ground. The driver is told, “When I tell you to begin,” to tilt their head back and close their eyes. The driver is told that he/she will be instructed to use their right or left hands, as instructed, to reach up and touch the very tip of their extended index finger to the very tip of the nose. The driver is told that as soon as they touch the instructed finger to the nose that they should immediately drop their hand back down to their side and await the next instruction.

The officer does not tell the driver that beginning the test before being instructed is a failure. That touching any portion of the extended finger, other than the very tip, to any portion of the face, other than the tip of the nose, is a failure. Raising the wrong hand when instructed is a failure. Not dropping the hand automatically after touching the nose is a failure. Swaying while standing with the head tilted back is a failure.

  • Finger Count -This test begins with the driver being instructed to raise either hand and to touch the tip of the thumb to the tip of the pinky finger. The driver is told, “When I tell you to begin,” to alternatively touch the tip of the thumb to the tip of each finger, while counting, “one, two, three, four;” and to then automatically reverse the order while counting, “four, three, two one.” This completes one cycle. The officer will normally tell the driver to complete three cycles while counting out loud.

The officer does not tell the driver that failing to touch the tip of each finger in sequence is a failure. The officer does not tell the driver that breaking the sequence or not counting correctly is a failure. Not completing exactly three cycles is a failure.

  • Hand Pat – This test begins with the officer telling the driver to place the palms of both hands together in a clapping posture. The driver is told, “When I tell you to begin,” rotate the top hand 180 degrees and clap with the other hand. The effect is that the driver claps his right hand into the palm of his left hand. The right hand is then completely rotated and brought down to clap the left hand with the back of the right hand. As the driver is performing, the officer will begin barking for the driver to perform “faster, faster, and faster.”

The officer does not tell the driver that “rolling” the hand rather than completely “rotating” the hand is a failure. Striking the left hand with the knife edge of the right hand is a failure. Not rotating the hand at all is a failure.

  • Recite the Alphabet -The driver is told to recite the alphabet meticulously and to not do it in a “singing” manner. This author has actually witnessed police officers instructing drivers to perform the alphabet in reverse order, which is utterly preposterous.

This author has witnessed police officers hand the driver a 3×5 card and instruct the driver to print the alphabet on the card and then to sign their name below the letters.

  • Counting Backwards -In this test, the officer will pick two random numbers and instruct the driver to count backwards from one number to the other. In example, the officer may tell the driver to count backwards from 97 to 73.
  •  Field Breath Analysis -The vast majority of California Police Agencies now equip their patrol officers with small hand-held breath testing devices commonly referred to as “PAS” or “EPAS” devices. PAS is the acronym for the Preliminary Alcohol Screening device. EPAS denotes the supposedly more sophisticated Evidentiary Preliminary Alcohol Screening device. Both of these devices are small, portable, hand-held breath devices that are plastic in construction and often grey, black or yellow in color.

The earliest versions of these devices were simple tubes or balloons that would turn a particular color to indicate the mere presence of Ethanol (ETOH) on the driver’s breath. These early versions made no attempt to estimate the actual alcohol level and therefore were used simply as a means for the officer to confirm the driver had, in fact, been drinking alcohol.

Over the past several decades, PAS and EPAS devices have developed to the point that police officers now primarily rely upon the breath device in making the decision to arrest or release a driver. Police Officers will routinely arrest a driver who has blown .08% or higher on a PAS or EPAS device, even though the driver may have performed all the other Field Sobriety Tests with flawless accuracy. In this instance, the officer makes an arrest based upon the presumed accuracy of a breath machine even though every “physical” evaluation of the driver indicates that he/she is not impaired.

How Does the DMV Use Field Sobriety Tests at an APS Hearing?

The officer’s observations and evaluation of a driver’s performance of FST is a critical element of the DMV’s case. The DMV Hearing Officer will routinely admit the officer’s observations of Field Sobriety Tests as evidence of impairment and therefore rule that the arrest of the accused driver was legal. Drivers at administrative hearings must be prepared to attack the quality and accuracy of the police officer’s field investigation as a means to prove the arrest was not warranted.

Because the lawfulness of an arrest is one of the mandatory issues the DMV must establish, a great deal of thought must be given to attacking this element of the case. If it can be established that the law enforcement officer’s investigation was flawed or not properly documented, this may be cause to win an APS Hearing. If a driver can prove that he or she substantially passed the FST or if the performance of the failed tests was marginal, this also may be grounds for winning a DMV Hearing.

Successfully attacking Field Sobriety Tests requires that you have a DMV Defense Expert on your side who knows as much or more than the arresting officer when it comes to Field Sobriety Testing. The DMV Defense Experts at California Drivers Advocates employ a team of experts, including a former police officer who is a certified field sobriety test instructor.   This is the level experience needed to reverse the DMV’s case. Call CDA today.

Call CDA Today to Attack the Field Sobriety Tests in Your Case.

Entering an Administrative Per Se Hearing can be upsetting enough. To learn that the DMV Hearing Officer will presume that the arresting officer is an expert in his field and will presume the accuracy of the Field Sobriety Tests can just be demoralizing. Most California drivers have no clue what a police officer is looking for when administering Field Sobriety Tests.

The DMV Defense Experts at California Drivers Advocates include former police officers with thousands of DUI arrests under their belts. We know precisely what the officers are looking for. We also know what a properly administered Field Sobriety Test should look like. Entering an APS Hearing doesn’t have to be terrifying or “one-sided.” Call CDA today and let us go to work attacking your case. We win these hearings because we do them the right way.

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