Even if you PASS your field sobriety tests, you can still be arrested and taken to jail!
That is according to the Tennessee Supreme Court in State v. Bell, where the Court held that even though Mr. Bell passed his field tests, it was still legal to arrest him.
So why would anyone ever agree to do these difficult tests?
I’d argue they shouldn’t. They can be used against you, but passing won’t help you. The movements are designed to divide your attention. They are unnatural tasks that most people aren’t used to. Weight, age, and physical conditions can make you fail, regardless of impairment. And after all that, you’re doing them in a high pressure situation, on the side of the road, with a police officer looking for every little mistake.
That is not a situation I’d bet my freedom on.
NHTSA “Standardized” Tests
Field sobriety tests are governed by standards published by the National Highway Traffic Safety Administration, (“NHTSA”). They are “standardized,” meaning that they should be instructed, demonstrated, and performed, the same way every time. If they’re not, NHTSA’s own publications say they aren’t valid.
The officer is taught to look for defined “clues” on each test. If you demonstrate 2 clues or more, you will be deemed to have “performed poorly” on the test, and likely be arrested. You will see shortly, just how easily you can show two “clues.”
Walk and Turn Test
Otherwise know as “walking the line” or “walk a straight line,” this test is not close to as easy as its made to sound.
There are 8 possible clues on the Walk and Turn test that the officer is looking for. Remember, even 2 clues means jail. They are:
- Cannot keep balance while listening to instruction
- The officer will have you stand heel to toe, touching, on a line, the whole time he explains the test. If you take your foot of the line, thats clue number one.
- Starts too soon
- Stops while walking
- Does not touch heel to toe
- Every step you must touch heel to toe. Many people think they only need to stay on the line. You have 18 chances of missing heel to toe, and demonstrating a “clue.”
- Steps off the line
- Again, 18 chances of stepping sideways and racking up another “clue.”
- Uses arms to balance
- You can’t raise your arms more than 6 inches from your side. Its natural to raise your arms when walking in this way and that often results in failures.
- Improper turn
- Don’t spin, pivot, or take your lead foot off the line or you’ll have another clue here.
- Incorrect number of steps
After completing this test, if you’ve managed to perform perfectly with only one mistake, you might, not be arrested, but you’ll have to take another test first.
One Leg Stand
The one leg stand test is the second in the series of three NHTSA Field Sobriety tests. It too has specific “clues” that can supposedly tell the officer whether or not you are impaired.
The test consists of standing on one leg for 30 seconds without losing your balance raising your arms. The officer should instruct you to stand with your feet together with your arms down by your side while you listen to him give instructions and demonstrate the test.
He should tell you to raise either foot approximately six inches off the ground, with both legs straight and to keep your raised foot parallel to the ground. You then will be told to count out loud, “one one thousand” and so on while continuing to look at your raised foot. The officer will watch you do this for 30 seconds.
If you demonstrate two of the following “clues” the officer will find you’re more than likely impaired and arrest you.
- Sway while on one foot
- Use or raise your arms to balance
- Put your foot down
It may be obvious, but these are things just about anyone would do when trying to stand on one foot for that long under those conditions! But if you do, you have failed the test.
Horizontal Gaze Nystagmus
This is where the officer moves a pen in front of your eyes and looks for jerking, or “nystagmus.” This jerking can indicate impairment. Unfortunately, there are dozens of other reasons your eyes may jerk and you’re not likely to know (and neither can the officer) why this jerking occurs.
Fortunately in Tennessee, our appellate courts have recognized that police officers aren’t doctors and that nystagmus can be a medical condition. For this reason, most officers will not be able to testify about the results of the HGN test in court.
But they will still use any swaying, failure to follow instructions, or other alleged “signs” of impairment on this test against you.
The Arrest Decision
After these tests, the officer is tasked with deciding whether to arrest you based on all of your interactions with him or her.
I’ve seen many cases where the arrest decision was made long before these tests were ever performed and the tests were used purely as an evidence gathering tool or to justify an opinion that has already been formed. Remember, its the officer who is “grading” your test.
There is no legal requirement to do DUI field sobriety tests and its my opinion that you should never agree to perform these roadside gymnastics! Even if you pass the field sobriety tests, the officer can legally arrest you anyway!
So what if you did do the tests? What now?
Its vitally important that someone qualified to review the police officer’s administration of the tests and your performance on them. There are often inconsistencies and mistakes the officer made that can effect whether or not their tests were validly conducted. There are also medical reasons that need to be explored to determine whether they played a part in your arrest.
I’ve taken the NHTSA Standardized Field training course, the same one that police officers must take to get certified. I’ve also taken advanced trainings in field sobriety testing that can help in defending allegations that those tests justify your arrest.
If you’ve taken field sobriety tests, given a blood or breath alcohol test, or been arrested for DUI, call us to discuss the specific facts of your case and find out how we can help. (865) 805-5703