What you may not know is that in Wisconsin field sobriety tests are not mandatory. Nor, if you politely decline to take the tests have you “failed”. However, the officer is not going to tell you that. The officer is not required to help you make an informed decision. The officer is trained to use deceptive tactics to encourage suspects (that is what you now are) to divulge as much evidence as possible. Why? The officer is attempting to build an iron clad case that you are impaired. The three Standardized Field Sobriety Tests are the primary tool the officer uses to build his or her case.
Do I have to perform the SFSTs?
You are under no legal obligation to perform SFSTs. As stated, the tests are designed as tools to assist an officer in determining if you are exhibiting signs physical impairment due to alcohol. If an officer asserts that choosing not to perform the tests is “failing” the tests, he or she is completely wrong. If you choose not to perform the tests the officer may use your decision to politely refuse as an indicium of guilt in forming his decision in whether probable cause to arrest exists.
Should I perform the SFSTs?
This is a harder question. If you politely refuse to perform the SFSTs, odds are that you will be arrested for drunk driving. However, if you do perform the tests you may be providing the government with the necessary evidence to convict you of operating while impaired. There is no one size fits all answer. Here is what I would consider:
- If you know you have only had a little to drink and do not feel buzzed, it may be worth attempting to perform the tests. Maybe you will pass.
- If you know that you are likely over the limit and feel buzzed, the tests probably are not going to go well. Do yourself a favor and politely decline.
If you choose to perform the tests, make sure that you highlight to the officer any medical conditions that may prevent you from properly performing the test. In addition, make sure you fully understand the instructions to each of the tests before you begin. Do not hesitate to ask for clarification.
Before we begin, here’s my favorite SFST video of all time from Reno 911.
The 1st Test: Horizontal Gaze Nystagmus:
This test is designed to check the eyes for the horizontal jerking of the eyes, which occurs involuntarily when under the influence of an intoxicant. The officer will instruct you to follow their finger with your eyes only as they make a series of passes in front of your face.
There are the three (3) clues the officer looks for in each eye:
- Lack of Smooth Pursuit – The officer will look to determine whether the eyes move smoothly or if the eyes are jerking when following the stimulus.
- Distinct and Sustained Nystagmus at Maximum Deviation – Whether your eyes twitch uncontrollably when your eyes are concentrating on the officer’s fingers at maximum deviation.
- Onset of Nystagmus Prior to 45 Degrees – A person whose eyes begin jerking prior to reaching a 45-degree angle is more likely to be impaired.
The officer looks for these clues in each eye, for a total of six (6) clues. An officer is taught that 4 of 6 clues is indication of impairment.
Officers love to say, “they eyes don’t lie”. However, there are several important factors to keep in mind. There is no way to ‘pass’ the test. The jerking in your eyes is entirely involuntary. Focus on maintaining the instructional position and keeping your head still. Things such as flashing strobe lights, the headlights of passing vehicles and other environmental factors can cause nystagmus. In addition, there are many medical conditions which cause nystagmus such as certain medications, inner ear infections, head trauma and brain damage.
One of the scariest concerns regarding the HGN test is bodycam or dashcam video frequently does not capture your eye movement. Therefore, there is no way to independently verify the officer’s purported observations. The officer must follow a strict protocol in administering the test. Most officers fail to do so.
If arrested for OWI, a trained and experienced drunk driving defense lawyer will be able to assist you in attacking the officer’s often improper administration of the HGN test.
The Second Test: Walk and Turn Test:
This is typically the second test an officer will administer when determining intoxication. This test is designed to test your balance, ability to follow instructions, and your ability to divide your attention.
The test is given in two phases. The first phase is the instruction stage. The officer will ask the driver to stand in the starting position while giving verbal instructions and demonstrating. The second phase is the walking stage, in which the driver must walk nine (9) steps on a line (real or imaginary), turn as instructed, and walk nine (9) steps back to the starting position. Sounds easy, right? Not the way these tests are scored.
There are eight (8) clues an officer will look for during both phases of this test:
- Whether the driver maintains balance during the instructions. This means if you step out of the instructional position to rebalance, that is a clue. The instructional position is standing heel to toe on an imaginary line with your arms at your side while listening to the officer explain and demonstrate the test. In addition, the officer’s not going to tell you that he is grading you even before he tells you to start performing the test. Fair, right?
- Whether the subject begins the test before the instructions are finished. If you start before the officer gives you explicit instructions, or if you take a few steps to practice, the officer will mark it as a clue.
- If the subject stops while walking. If you stop during the test to ask a point of clarification or to rebalance, that is a clue.
- If any of the steps are not heel-to-toe. If the heel and toe are more than ½ inch apart, that is a clue. ½ inch, think how tiny that is. Also, ask yourself, how does this make any sense? ¼ of an inch is not a clue but ¾ of an inch is? Also, how is the officer gauging that distance?
- If any of the steps are off the line. Remember, the line on which you will be asked to perform this test may be real (for example a traffic line or parking stall line) or imaginary. So, remember not to step off the line that you are imagining and hope that the officer scoring you is imagining the same line.
- If the subject uses his or her arms for balance. The threshold here is not holding your arms out to your sides like an acrobat walking a tightrope, rather it is raising your arms more than six inches from your side.
- If the turn is improper. The officer is going to give you detailed instructions on how to perform the turn. Listen closely.
- If subject takes an incorrect number of steps. Anything other than 9 steps down and 9 steps back is marked as a clue.
The total number of cues an officer needs to observe to “prove” impairment is 2 of 8. When you consider all the possible points at which a person could exhibit a ‘clue’ it is incredibly easy to fail the test. If you break down the scoring of the test, there are:
- 18 steps where you could miss heel to toe
- 18 steps where you could step offline
- 18 steps where you could raise your arms for balance
- 18 steps where you might pause to rebalance or remember instructions
- Turning improperly (numerous ways to do so
- Starting too soon (remember, no practicing)
- Failing to maintain the instructional position (No fidgeting or readjusting your position while the instructions are being given).
- Taking the wrong number of steps.
That is 76 points where you may exhibit a clue on this test. This means that you could score a 74 correct out of 76, 97%, different points an “fail” this test. I have a lot of schooling and everywhere I went a 97% was an A.
You must also consider the conditions in which an officer may administer the test: rain, sleet, snow, severe cold, on the side of a 70-mph freeway, and many other unsuitable conditions. Also, factor in your nerves and your personal athletic ability. Now score the 98.7% (1 clue out of 76 opportunities) required to pass this test. Good luck!
The Third Test: One Leg Stand
This is typically the third and final test the officer will administer. Again, this test is designed to test your balance, your ability to follow instructions and your ability to divide your attention. This test also has two phases, the instructional phase, and the performance phase.
The officer will instruct the driver to stand with his or her feet together, arms at his or her side. When the officer instructs the driver to begin the test, the driver will raise his or her foot 6 inches above the ground while keeping his or her arms down to the side, the leg straight and the foot parallel to the ground. The driver is instructed to count out loud from 1-30 in a one-thousand format (i.e. one-thousand-one, one-thousand-two, etc.) while looking down at the tip of their raised toe. The officer will look for four (4) clues:
- Swaying while balancing. You better hope it is not windy and that the ground is level. There is no threshold for swaying (such as the ½ inch apart for heel to toe).
- Using arms for balance. Again, 6 inches is the threshold for this clue.
- Hopping. Do not hop, perfect balance is required.
- Putting your foot on the ground. Do not put your foot down to steady yourself.
An officer only needs 2 out of 4 clues to judge that you may be impaired. This test is absurd. Try this yourself. Or better yet, have your mother or father try. Per the National Highway Traffic Safety Association, anyone ages 18 to 65 is fit to perform this test. Have a knee or back injury? Do not worry, the officer will tell you that he will “take it into account” when judging the test. What the officer will not tell you is the he or she likely does not have a medical degree or any training to make such a determination.
Probable Cause Determination:
Based on the totality of the tests, along with all the officer’s other observations and potentially your preliminary breath test, the officer will decide whether to arrest you.
The National Highway Traffic Administration says the tests are valid and reliable only if the officer properly administered these tests. The best way to determine if the proper administration was given is to hire a DUI Defense Attorney who will be able to effectively evaluate the administration of the SFST’s. If you have been arrested and charged with a DUI in Wisconsin, contact Attorney Daniel R. Skarie at 1-262-250-1976 or complete a Free Case Review Online. Think before you drink, because it is your license, your reputation, and possibly your future at stake.