FIELD SOBRIETY TESTS

When Can the Police Ask You to Submit to Field Sobriety Tests?

Law enforcement officers conduct field sobriety tests to help determine if the suspected individual is too intoxicated to safely operate a vehicle. There are a number of tests an officer can use to help gauge the sobriety of a driver who is suspected of operating under the influence.

Police Suspicion

In order to conduct a field sobriety test, an officer must determine that there is reasonable suspicion an individual is or has been operating a vehicle under the influence. The National Highway Traffic Safety Administration provides standardized Field Sobriety Testing training to law enforcement to educate officers on how to gauge impaired driving and conduct a stop and any subsequent arrest.

There are three phases of detection:

  • Phase One: Vehicle in Motion

  • Phase Two: Personal Contact

  • Phase Three: Pre-Arrest Screening

During each and every phase the law enforcement officer must determine if there is enough evidence to continue to the next phase based on “reasonable suspicion.” Officers are trained to look for this evidence in order to proceed in their investigation. If you are stopped by the police on suspicion of OUI, stay calm, be courteous, and not give the officer evidence that can be used against you. Remember, you have a right to remain silent and the right to refuse to submit to field sobriety testing.

Phase One: Vehicle in Motion

The police may stop a driver for suspicion of driving under the influence after observing what they believe to be signs of impairment. This could include:

  • Lack of vigilance, such as erratic speeding or drifting, including crossing the white fog line

  • Poor coordination, as in making a wide turning radius

  • Slow reaction time, for instance not timely going forward at a green light, not responding to the officer’s commands to pull over

Phase Two: Personal Contact

The officer will approach and interview the driver, while continuing to observe. The observations during the face to face interaction may include:

  • What is seen: This could include visible containers of alcohol or drugs/ drug paraphernalia. It could include observations of the driver, such as bloodshot eyes. The officer may ask the driver to exit the vehicle in order to observe their walk and coordination.

  • What is heard: Examples include slurred speech, the admission of having drank alcohol or used drugs and inconsistent statements,

  • What is smelled: Officers will try to detect the odor of alcohol or marijuana as well as breath and air fresheners.

Officers are trained to not only observe, but to continue to gather information during this phase in order to gain sufficient cause to move to the next. This could include asking questions in order to ascertain the individual’s ability to concentrate on two or more things at the same time.

Divided Attention Tests are administered to gather evidence of whether an operator suspected of OUI can complete multiple tasks at once. This can include such techniques as:

  • Asking for two things simultaneously, such as requesting both license and registration.

  • Asking interrupting questions, such as asking “What day is it?” while the driver is finding their registration.

  • Asking unusual questions in order to make the driver process information, such as “What is your middle name?”

After this screening, the officer may ask the driver to step out of the car. They are not usually under arrest at this point, but the observations the officer has made during phase two are leading to a reasonable suspicion of OUI.

The officer will now observe the suspect’s coordination and demeanor:

  • Does the driver lean against the vehicle?

  • Does the driver “climb” out of the vehicle or leave it in gear?

  • Is the driver acting with anger or belligerent?

  • Is the driver able to follow instructions?

Phase Three: Pre- Arrest Screening

The law enforcement officer has gauged in phases one and two that the driver is likely to be operating a vehicle under the influence and will continue to seek evidence to secure an arrest. They will now conduct further psychophysical testing, commonly known as field sobriety tests, to gain further evidence that will be used against the driver suspected of OUI.

It is critical for a driver suspected of OUI to know that these tests do nothing to prove sobriety, they serve only as evidence in any proceedings against the individual, and it is every citizen’s right to politely decline to perform these tests.

These tests include:

  • Horizontal Gaze Nystagmus (HGN) Test: The citizen may be asked to follow a slowly moving object, usually a pen, with his/her eyes. “Nystagmus” is the involuntary jerking of the eyes, and increases as blood-alcohol concentration increases.

  • Alphabet Recitation: The citizen may be asked to recite the alphabet to test mental alertness.

  • Walk-And-Turn Test: The citizen may be asked to walk nine steps, one foot directly in front of the other, and then turn and repeat nine steps back to the start. This test checks balance and coordination, and determines the driver's ability to follow direction and remember the steps requested.

  • One-Leg Stand Test: The citizen may be asked to stand on foot with their arms at their sides while counting out loud for 30 seconds. This tests mental alertness, balance, and ability to remember and follow directions.

Standardized vs. Non-standardized Field Sobriety Tests

The NHTSA has studied the validity of tests used across various regional law enforcement agencies and determined three stood out as “highly accurate” when administered in a standardized manner: The Horizontal Gaze Test, Walk and Turn and One-Leg Stand. Delivered in a standardized manner, these tests have rendered accurate, validated results in between 86-95% of cases of individuals with 0.05 BAC or above. The results of a field sobriety test can lead an officer to arrest a driver for an OUI.

It is necessary to emphasize this validation applies only when:

  • The tests are administered in the prescribed, standardized manner

  • The standardized clues are used to assess the suspect’s performance

  • The standardized criteria are employed to interpret that performance

It is crucial for the police to properly administer the test and interpret the standardized clues. If the police fail to do so, the test is invalid and holds no meaning.

The Admissibility of Field Sobriety Tests as Evidence of Impairment

While the Walk and Turn Test, the One Leg Stand Test, and the alphabet test are generally admissible as evidence of impairment at trial in Massachusetts, there are strict limitations with evidence of the Horizontal Gaze Nystagmus Test. The Supreme Judicial Court in Massachusetts has held that in order for the HGN Test to be admissible at trial, the prosecution must provide expert testimony. Commonwealth v. Sands, 424 Mass. 372, 373 (1997). Expert testimony is necessary because the test relies on an underlying scientific proposition; the result of an HGN Test relies on an underlying assumption that there is a strong correlation between intoxication and nystagmus. Unlike the underlying ordinary field sobriety tests that involve balance, coordination and acuity of mind, the underlying assumption for the HGN Test is not within the common experience of jurors.

The Flaws of Field Sobriety Tests

There are a number of factors that can affect the admissibility of these tests and provide a defense. A person may have difficulty performing these tests for a variety of reasons, and it is the officer’s duty to be alert to this, and inquire about any condition that may mimic impairment or affect the results of field sobriety tests, including:

  • Disability affecting movement or balance

  • Head injury

  • Neurological disorders

  • Medication, including insulin

There are a number of factors that could contribute to the unreliability of your field sobriety test. In fact, police are trained to take into account particular factors when assessing performance of field sobriety tests.

These factors can include the following and more:

  • Physical characteristics such as your age or weight

  • Your current health, including fatigue

  • Geographical landscape (such as a slope or slant)

  • Learning disability or other disability

Lack of education could also make it difficult for you to correctly complete certain tasks, and nerves, weather, and roadside conditions can also be detrimental distractions. It is important to enlist the services of a knowledgeable attorney who understands the law and can help you fight OUI charges received after a field sobriety test.

Refusal to Submit to Field Sobriety Tests

In Massachusetts, you have a right to refuse to submit to field sobriety tests and your refusal cannot be used as evidence against you at trial. Commonwealth v. McGrail, 419 Mass. 774 (1995). In other words, should you politely decline to submit to these tests, the factfinder cannot hear any evidence that you were asked to submit to the test, nor can they hear that you refused to do so. Massachusetts, unlike many other states across the country, has held that the Massachusetts Declaration of Rights protects a motorist’s right to refuse to provide evidence against themselves, including evidence of field sobriety testing. Without evidence of field sobriety tests, it is often difficult for a prosecutor to prove operation under the influence.

Get Serious Representation for Serious Criminal Charges

In Massachusetts, OUI convictions carry heavy penalties, and you should never take these charges lightly. We have represented clients in OUI cases for 20+ collective years, and we may be able to help you fight intoxicated driving charges based on a field sobriety test or chemical test. We have been trained and certified to administer the Standardized Field Sobriety Tests, which allows us to examine your case and charges and find any problems with the test you were given. We have also done many speaking arrangements and been recognized as an authority in this area.

Our firm can work with you to create a comprehensive defense strategy. We are committed to providing each client with the detailed attention they deserve. You cannot risk your freedoms. Call our firm today to discuss your case.