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You’re out a little late and you’ve had a few drinks. You’re stopped by a police officer and told to get out of the car to do “Field Sobriety Tests” (FST’s.) Don’t panic, but take it seriously.

However, as an Oakland DUI lawyer can explain, it’s likely the officer’s already done one test. They’ve asked you to follow an object with your eyes, a test called “horizontal gaze nystagmus.” This test can indicate the presence of alcohol. Your eyes can lag behind a moving object, then jerk quickly to catch up. That jerking is called “nystagmus.” The test is imprecise, and, as with all FST’s, it’s just one factor among many to determine whether someone is impaired.

When The Field Sobriety Test Starts

There’s even more to the situation before you get out of the car. In fact, many people think the most important evidence has already been taken. How was your driving? Old school lawyers know that it’s hard for the DA to win a borderline case unless the person’s driving was pretty bad.

After you’re stopped, the officer is noticing many things. How alert do you seem to be? How are you moving? Are you taking a long time to find your license and registration? How does your breath smell? Actually, ethanol —pure alcohol—has no smell. However, when it’s mixed with the other things in alcoholic drinks, the smell can linger on your breath for a long time. The officer can’t tell how much you’ve had to drink or when you drank from your breath. But the officer is putting together a picture.

Types of Tests

Once you’re out of the car, the physical tests begin. People often ask, “do I have to do those tests?” Legally, you do not. There is no legal penalty for not doing them. However, if you refuse to do them, they can say you knew you were intoxicated and were afraid the tests would show it. Meanwhile, the officer is noticing how you’re standing, speaking, reacting to instructions. All of those things will be noted in the report. If you have any problems with the tests, the officer almost surely arrest you to get a blood or breath test.

Some people think of the Steve Martin movie “The Man With Two Brains,” where the roadside tests get harder and harder as the officer tries to come up with something he’ll surely not be able to do. It may seem that way to you, but it’s a little more scientific than that. The National Highway Traffic Safety Administration (NHTSA) has approved a three-test “battery” of “Standardized Field Sobriety Tests.” They are called “standardized” because they are based on research in which people were given known quantities of alcohol, and were given the same set of tests in the same ways. From these studies, NHTSA approved what they believe to be three tests – the walk and turn, the modified position of attention, and nystagmus – which they believe are the best indicators of whether a person has achieved a .10% blood alcohol concentration (B.A.C.). Still, the tests can’t be used to say what your B.A.C. actually is, only that they are “consistent” with being under the influence.

The field sobriety tests are subjective. Part of your performance, which nobody tells you, is how you follow the directions. Did you have to ask questions? Did you need them to be demonstrated more than once? How did you behave during the explanation?

Elements of Sobriety Testing

The tests are broken down into elements: The Walk and Turn: Nine steps forward, ten steps back, heel to toe, pivot “like a basketball player.” The Modified Position of Attention: Hands at your side, eyes closed, don’t sway, estimate 30 seconds. Any little mistake will be recorded, so good lawyers don’t let that bother them. They concentrate on the big picture. How did this person really seem overall? Most important—how were they driving?

They claim to take into account if you are dealing with a physical injury, the kind of surface you’re on, whether you are sick with the flu or a cold. The most important thing is that they are called “divided attention tasks” which is supposed to simulate the same challenges of driving—doing more than one thing at a time. When you drive, you have to watch the road, mind your speed, pay attention to other drivers, sense the terrain conditions, anticipate things, signal your intentions, all at the same time. The theory is that alcohol in sufficient quantities impairs that divided ability, and can be shown by failing the FST’s.

Breath Testing

The last sobriety test is probably the most important. They have a hand-held breath test machine called a “Preliminary Alcohol Screening” device (P.A.S.) It is not the “official” test, which will be done at the station, but it does allow them to see and state a number. You are not required to take it, and there is a debate on whether you should. Remember, the point of all of the FST’s is for the officer to decide whether to arrest you. The real bottom line is that if they think you’ve been drinking much at all, they’re going to arrest you and get an “official” breath or blood test.

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