Field sobriety tests are used by law enforcement in Virginia to evaluate whether a driver might be impaired by drugs or alcohol. The police claim these tests provide an accurate measure of when drivers might be drunk or under the influence. However, these tests are highly subjective and the police do not always provide the right instructions or properly observe the tests. There are also many innocent reasons why someone might fail field sobriety tests that have nothing to do with drugs or alcohol.

These tests are not required, even if the police officer makes it seem like you don't really have a choice. The good news for anyone who performed these field sobriety tests and was arrested for a DUI is that your lawyer can challenge the reliability of this evidence in court. Talk to your Virginia DUI defense lawyer about how field sobriety tests will impact your criminal case.

Types of Standardized Field Sobriety Tests in Virginia

There are generally three types of Standardized Field Sobriety Tests (SFSTs) used by police and sheriff's departments in Virginia. These are also the most common tests used across the country. These SFSTs include:

• Walk-and-Turn Test,
• One-Leg-Stand Test, and
• Horizontal Gaze Nystagmus (HGN) Test.

The SFSTs were developed, in part, with help from the National Highway Traffic Safety Administration (NHTSA). While the NHTSA claims these are an accurate measure of impairment, there are problems with the reliability of all these tests.

One-Leg-Stand Test

The One-Leg-Stand (OLS) test requires the suspect to raise one leg about six inches off the ground, keeping the foot pointed out, and while holding the position, count out loud until told to stop.

The police are looking for a number of “clues” during this test that begins even before the individual starts the test. This includes:

• Swaying while balancing,
• Using arms to balance,
• Hopping, and
• Putting a foot down.

Walk-and-Turn Test

The walk-and-turn (WAT) test instructions include walking heel-to-toe along a straight line for nine steps. Then, the individual is supposed to turn and come back along the same line, heel-to-toe, counting the steps out loud. Interpretation of this test includes:

• Cannot keep balance while listening to instructions,
• Not maintaining heel-to-toe position throughout instructions,
• Starting too soon,
• Stopping while walking,
• Does not touch heel-to-toe,
• Stepping off the line,
• Using arms to balance,
• Improper turn, and
• Incorrect number of steps.

Horizontal Gaze Nystagmus Test (Eye Test)

The horizontal gaze nystagmus (HGN) test is an eye test where the officer asks the individual to follow a pen, light, or finger back and forth with their eyes. HGN tests an involuntary jerking of the eyes as they look to the side. The clues the officer looks for during the HGN test include:

• Lack of smooth pursuit,
• Distinct and sustained nystagmus at maximum deviation for a minimum of four seconds, and
• Onset of nystagmus prior to 45 degrees.

Are Field Sobriety Tests Mandatory in Virginia?

Field sobriety tests are not mandatory in Virginia. If the police ask you to perform a field sobriety test, you can say no. In many cases, you should say no because even if you are not over the limit, the police may use these test results to justify a DUI arrest.

There are no mandatory penalties for refusing to perform field sobriety tests in Virginia traffic stops.

These tests can hurt you but they rarely help. Even if you pass the test, you may face an arrest. In some cases, the police make it seem like it will go better for you if you just do the test. However, the police may have already made up their minds to arrest you and are simply trying to gather more evidence that can be used against you in court.

If you are arrested and refuse to submit to a chemical breath test, you may face a mandatory license suspension. However, there are no mandatory penalties for refusing to submit to a field sobriety test.

The Problem With Field Sobriety Tests in Virginia DUIs 

These standardized tests have replaced other tests used by law enforcement that may have been even less reliable. However, even the NHTSA acknowledges that these tests are not always accurate and should be performed under ideal conditions.

The SFSTs “are to be administered under ideal conditions,” according to NHTSA manuals. Yet, they recognize that these tests “will not always be administered under ideal conditions in the field, because such conditions do not always exist.” Less than ideal conditions can reduce the reliability of these tests that are not always accurate, even in laboratory conditions.

These tests can incorrectly identify impaired drivers on both sides. A driver with drugs in their system or a BAC over the legal limit can pass these tests and allowed to go on their way. Alternatively, drivers can “fail” these tests and end up arrested for drunk driving with a BAC under the limit or even completely sober.

There are three major problems with SFSTs used as an indicator of drug or alcohol impairment, including:

• Problems with officer instruction and observation,
• Testing conditions are rarely ideal, and
• Non-alcohol related causes of failing test conditions.

Virginia Law Enforcement Officer SFST Training and Instruction

In many cases, police officers take a three-day course to learn SFST processes and procedures. This is mostly classroom training with testing at the end. After that training, the police can conduct roadside tests and help decide whether a driver is under the influence. With such limited training, it is understandable that the police could get the test wrong or fail to accurately observe the driver.

SFSTs also rely on the subjective observations of the individual officer. What one officer considers a failed test might be considered a “pass” by another. The walk-and-turn test could have the driver step slightly off the line which may be a fail for one officer but not for another. The HGN test 45-degree measure may be closer to 35 or 40 degrees and is based on the officer's estimate of where 45 degrees lies.

If the police officer gives the wrong instructions, the driver could “fail” the test even when he or she did what they were asked to do. After giving the tests so many times, an officer could accidentally skip a step and then tell the driver he or she failed the test. Unfortunately, it may be useless to try and argue that the officer was wrong during the roadside stop. These disputes should be handled in court, not on the side of the road.

Problems with Testing Conditions

The location of the field sobriety test can impact the individual's test results. According to the NHTSA, the walk-and-turn test should be conducted on a dry, hard, level, and non-slippery surface. The side of the highway is often loose rock, dirt, or gravel. The side of the highway may also slope away from the center of the road, making it less than level.

Other environmental factors include flashing lights of the police car, speeding cars passing with headlights, the contrast between the darkness and bright lights at night, and debris on the road. People with high-heeled shoes may be given the opportunity to take off their shoes, but walking barefoot on the hot pavement can also make the testing more difficult. The police officer and prosecutor may try and downplay these factors; however, these, especially in combination, may be the cause of failing a field sobriety test.

Non-alcohol Causes of Failed Field Sobriety Tests

Even under the ideal conditions, there are other factors that can make someone fail a field sobriety test. Stress should not be understated. Standing on the side of the road to parade up and down the highway in front of your community can make anyone feel stressed. With thoughts of embarrassment, arrest, loss of your license, and a criminal record, it can make it difficult to perform the tests or even follow the instructions.

Medical issues, disabilities, physical ailments can also cause complications with these tests. Some medications that do not impair a person's ability to drive may impact their eye test. Older adults may also find it difficult to perform some of these tests, especially if they have a bad knee, back, or another ailment.

Challenging Field Sobriety Test Evidence in Virginia

Your criminal defense attorney can challenge the Commonwealth's evidence against you. For example, by filing a motion to suppress, your attorney can seek to exclude certain evidence from being introduced at trial or limit the use of that evidence. If the judge grants the motion, the evidence may be suppressed so that it is not admissible in trial. Without this evidence, the prosecutor may have a weaker case or no case at all and will be forced to drop the DUI charges.

Alternatively, the defense attorney can introduce evidence of the problems with some of these tests, alternate explanations, or medical conditions that may cast doubt on the strength of the prosecutor's case. This can include cross-examining the police officer to point out inconsistencies, introducing studies that show how these tests can be inaccurate, or an expert's testimony about the defendant's medical history and how it may affect the field sobriety tests.

Talk to your Charlottesville DUI defense lawyer about how you can use these defenses in your DUI case.

Charlottesville DUI Defense Lawyer

Field sobriety tests can be highly inaccurate, which is one of the reasons these tests are not mandatory. However, even when a driver submits to these tests, the results can be challenged by an experienced Virginia DUI defense lawyer. Talk to an attorney with a record of successfully defending clients facing a DUI. Contact me today for a free consultation.