Can I be Arrested for Failing an FST?
If you’ve been arrested and charged with a DUI based on your performance during a field sobriety test that led to the accumulation of additional evidence against you, contact us for a no-cost, immediate case consultation (call or use the form on this page). During our initial consultation, we’ll help you to determine if you should plead guilty or not guilty to your charge. Learn more about our DUI defense.
The Right to Refuse an FST
The motorist has the right to refuse participation in roadside sobriety tests. Declining to take a roadside test does not carry the same consequences as refusing to take a breath test, although the motorist may still be arrested on suspicion of DUI for refusing an FST.
What Happens in Field Sobriety Tests?
- Field sobriety tests, like other aspects of a DUI arrest, must be videotaped. Law enforcement is tasked with providing evidence of driving impairment. The videotape serves as a witness for both parties.
- The driver will be asked to perform a battery of field sobriety tests. One test alone cannot accurately indicate sobriety or intoxication. Based on decades of studies, the National Highway Traffic Safety Administration has determined three standardized field sobriety tests administered sequentially, yield the most accurate results — when officers are properly trained. These are the Horizontal Gaze Nystagmus (HGN), Walk-and-Turn (WAT), and One-Leg Stand (OLS). (Scroll down for video demonstrations.) The cumulative test results are more accurate than each individual test.
If you’re arrested for your performance during a field sobriety test, your DUI lawyer at Strom Law Firm can review strategies to challenge the validity of FSTs. For more see, Challenging DUI Testing.
Common FSTs Defined
Horizontal gaze nystagmus test:
The officer passes a pen or similar object in front of your face, and you are asked to follow it with your eyes. This tests your body’s physiological response, which the NHSTA believes can highlight intoxication in motorists who have become adept at performing motor skills while under the influence. Con: If your eyes jerk or tremble (nystagmus) when the pen is passed from side to side, it indicates intoxication. However, the officer should admit that nystagmus can, and does, occur naturally in many people, and that stress and bright lights (present at every traffic stop) can bring an onset of nystagmus.
The police officer will ask you to keep your hands at your side, walk heel-to-toe 12 steps (counting each aloud), turn, and walk back.
They will be looking for “clues,” such as “unbalanced during instructions,” “stopped while walking,” “heel and toe didn’t touch,” “used your arms for balance,” “improper turn,” and “incorrect number of steps.”
This test asks you to make a very unnatural movement that few sober people can do. It is challenging because of the slope of the road, the presence of gravel, heavy clothing in the winter, high heels, passing traffic dangers, distracting squad lights, and officer spotlights.
One leg Stand:
https://youtu.be/7g7vA_qlcko
During this test, the officer will ask you to put your feet together, raise one foot, and count aloud until the officer tells you to stop. They will record any swaying, using arms for balance, hopping, and putting your foot down. The same test conditions that are troubling for the walk-and-turn apply here.
Non-Standardized FSTs:
- ABC or number testing: you are asked to recite the alphabet or a series of numbers, whether forward or backward. This is not a standardized test, should not be part of any probable cause analysis, and can be challenged on that ground alone. The police will ask you to state the alphabet without singing it. It sounds simple, but invariably people miss a letter, get rattled, begin again, etc.
- Finger to nose test: while standing still with your eyes closed, you are asked to move your index finger to your nose.
- Rhomberg balance test: you are asked to stand still, close your eyes, tilt your head up, and approximately 30 seconds. The officer is looking for your sense of time and whether you can stand still or sway from side to side.
Contact a DUI Lawyer
Arrested for driving under the influence? Criminal defense lawyers at the Strom Law Firm, LLC, provide a no-fee consultation to discuss the facts of your DUI case. Call us today at 803-252-4800 to review your case.
