Field Sobriety Tests
field sobriety tests

Your Right to Decline Field Sobriety Tests

The first tip that almost any experienced Orange County DUI attorney will give is “do not agree to take the voluntary field sobriety tests”. Yes, these tests are voluntary. But you can bet the officer will never mention that. An officer cannot force a driver to submit to any field sobriety test. For example, when an officer approaches your vehicle and asks you to follow his finger with your eyes, you can politely decline this field sobriety test or, better yet, tell them you will not perform any field sobriety test without your Orange County DUI lawyer present. By invoking your Constitutional right to counsel the District Attorney cannot use your “uncooperative” behavior against you. There is no law that requires you to submit to any field sobriety tests. But remember, always be polite and cordial to the officers. And always do what an officer orders you to do. Leave it to your DUI attorney to challenge it later in court.

Of course, if you are certain that you are both drug and alcohol free, then there most likely is no harm from agreeing to perform field sobriety tests if you are not injured or limited in mobility in any way. But are you really sure? When did you last drink? Are you on prescription medications? Remember, people are convicted in the Orange County courts every day of a drug DUI resulting from taking prescribed medications.

Are Field Sobriety Tests Important?

Huntington Beach DUI attorneys know firsthand that in some cases, field sobriety test evidence makes all the difference between a DUI conviction and a dismissal. This is particularly true when you are charged with a DUI and your blood-alcohol limit is below the legal limit of 0.08%. It is equally true in drug DUI cases.

You see, while Vehicle Code section 23152(b) makes it a crime to drive with a blood-alcohol concentration of 0.08% or higher, another section also criminalizes driving with any alcohol or drugs in your system, regardless of the amount, if it impairs your driving. If you are convicted under either law, driving over the 0.08% limit or impaired driving, it is a DUI conviction, which means mandatory jail in many cases. So how does the District Attorney (“DA”) prove that you were “impaired”? With field sobriety test evidence for one thing. Also, with any evidence of “bad driving”, which is the most direct form of proof of impaired driving. This is why Newport Beach DUI attorneys advise you not to take field sobriety tests.

In many cases, there is no evidence of bad driving. Often the officer doesn’t suspect a driver until after stopping them for some equipment violation. When there is little or no evidence of bad driving the field sobriety test results become extremely important. But if the DA has no field sobriety test evidence because the driver stood on their rights, then the driver’s Irvine DUI attorney may be able to get the case reduced to a wet reckless, a dry reckless or dismissed.

Field Sobriety Tests

What Are Field Sobriety Tests?

When the police decide to conduct a DUI investigation, whether after a traffic stop, an accident or at a DUI checkpoint, they almost always ask the driver to perform a series of balance and coordination tests, called field sobriety tests. These tests are supposedly designed to detect both mental and physical impairment. Your performance on these field sobriety tests is graded by the police officer, who is looking for specific cues. One of the first thing a Mission Viejo DUI lawyer subpoenas is any video recording of these field sobriety tests. Unfortunately, these tests are almost never recorded on camera for a judge and jury to see later. Which is strange considering that most police cars are equipped with forward-facing cameras and spot lights. Rather, the jury will eagerly rely on what the cop says he saw.

In most cases, the first field sobriety test the officer asks a driver to perform is called the Horizontal Gaze Nystagmus test. It is performed by having the driver follow the officer’s finger or pen with the driver’s eyes only. (The eye will involuntarily bounce if there is alcohol in the person.)  Other field sobriety tests include the “walk and turn” test, the one-legged stand, and the Rhomberg. The first two of these are performed just like their name suggests. The third test—the Rhomberg—is executed by standing still with your arms at your side, closing your eyes, tilting your head back, and estimating the passing of 30 seconds. Although there are many proven defenses used by a skilled Brea DUI lawyer to discredit each of these tests, the best defense is the absence of any field sobriety evidence at all.

The last “field sobriety test” that is usually offered is a Preliminary Alcohol Screening test (voluntary breath test). This must not be confused with the “evidentiary” breath test that is demanded once a driver has been arrested. Any Fullerton DUI lawyer will caution that once you are arrested for DUI you MUST take a blood or breath test. Failure to do so will result in a prolonged drivers’ license suspension and a separate charge of “refusal” on top of the DUI charge.  Although there are other field sobriety tests used by officers, these are by far the most often used field sobriety tests in any Orange County DUI investigation.

Free Telephonic Consultation With A DUI Lawyer in Orange County

If you’ve been arrested for DUI call The Law Office of EJ Stopyro today for a free and confidential telephonic consultation at (949) 559-5500. You’ll speak to an experienced Orange County DUI attorney about your options and possible defenses. Our main office is at 32072 Camino Capistrano, 2ndfloor, San Juan Capistrano, CA 92675 but we have meeting offices throughout Orange County.

4 Thoughts on “Field Sobriety Tests”

  • I’m glad that you talked about how a good attorney should inform you about things like how there’s no law that requires you to submit any field sobriety tests. My roommate is looking to hire a DUI attorney but wants to find an attorney who can really help him become more knowledgeable on the topic. I’ll be sure to talk to him about finding a professional who will inform him of important things constantly.

  • I like that you provided some interesting insights about field sobriety tests. I personally wasn’t aware that there are actually three types namely, the Horizontal Gaze Nystagmus test, walk and turn, Rhomberg, and the Preliminary Alcohol Screening test. I will certainly be doing some research to find out more about these types of tests. Thanks for sharing this.

  • Thanks for explaining your right to decline field sobriety tests. If a person is pressured into taking one of these tests, and they are charged with a DUI, can they use this as a defense in court? Something similar recently happened to my cousin, and he wants to try fighting the charge.

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