Field Sobriety Tests

What you need to know about Georgia’s field sobriety tests and whether or not you can refuse one.

Law enforcement officers use field sobriety tests as a way of determining whether someone is intoxicated or not. These standardized field sobriety tests were created by the National Highway Traffic Safety Administration (NHTSA) and include tasks like the walk-and-turn, Horizontal Gaze Nystagmus, and the one-leg-stand. Despite being created by the NHTSA, these tests are not always 100% reliable. In fact, they are almost set up to make you fail, even if you are sober.

Can You Refuse Field Sobriety Tests?

The question many clients have is whether or not you can refuse these tests if you are pulled over for driving under the influence. The answer is yes, because these tests are completely voluntary. You can politely refuse to take field sobriety tests in Georgia. Many people do not realize they have this right to refuse these field sobriety tests when pulled over by an officer for suspicion of driving under the influence in Georgia. There is confusion between refusing field sobriety tests and refusing to submit to breath, blood, or urine tests. If you refuse a state administered test that measures your blood alcohol, it could result in legal repercussions.

The police will not tell you that field sobriety tests are voluntary either. You might be imagining yourself doing some of these tests with little difficulty on a smooth floor with plenty of light. Now imagine being pulled over on an uneven pavement that is sloping or on the side of a steep grade in the dark.

Understanding the Types of Standardized Field Sobriety Tests

Each field sobriety test has advantages and numerous disadvantages. It is important to understand what each type of test entails.

The Horizontal Gaze Nystagmus (HGN) Test

The HGN Test measures the involuntary jerking of the eye that occurs when a person has consumed alcohol or other central nervous system (CNS) depressants.

Before HGN is performed, the officer must determine whether the individual is a good candidate for the test, as some medical or eye conditions may cause nystagmus, absent the presence of alcohol or drugs. The officer should first ask the individual whether they have any such conditions. The officer should then check for "resting" nystagmus (nystagmus that exists when the eyes are facing forward and not moving.) Resting nystagmus can indicate the presence of a medical disorder or the presence of certain types of drugs (PCP, for example). The officer should also check the subject's tracking ability, or whether the individual can physically follow the stimulus with both eyes. If a person's eyes cannot track equally, it may indicate the presence of a medical condition.

Once a person has been medically qualified, the officer may proceed with the test. The officer has the subject follow the motion of a small stimulus (usually the tip of a pen or penlight) with his or her eyes only. Each eye is checked, beginning with the left eye. Two or more “passes” are made before each eye, to look for each of the clues of nystagmus.

For HGN, officers examine each eye for three specific clues (for a total of six clues):

  1. As the eye moves from side to side, does it move smoothly, or does it jerk noticeably?
  2. When the eye moves as far to the side as possible and is kept at that position for four seconds, does it continue to jerk distinctly after four seconds?
  3. As the eye moves toward the side, does it start to jerk prior to a 45-degree angle?

Vertical Gaze Nystagmus (VGN) is an involuntary jerking of the eyes (up and down) which occurs when the eyes gaze upward at maximum elevation. The presence of this type of nystagmus is associated with high doses of alcohol for that individual and certain other drugs (such as CNS depressants or inhalants).

Officers typically check for VGN immediately after checking for HGN, using the same stimulus but simply moving it vertically rather than horizontally. For VGN to be recorded, it must be definite, distinct and sustained for a minimum of four seconds at maximum elevation.

If either HGN or VGN are observed, this may indicate the presence of drugs or alcohol. However, absence of nystagmus does not necessarily rule out the presence of drugs, as some drugs do not cause nystagmus.

Even in the absence of nystagmus, officers are trained to note other features of the eyes. For example, officers will usually note if pupils are noticeably dilated, as this may indicate the presence of drugs such as CNS stimulants (cocaine and amphetamines, for example), Hallucinogens (LSD or mushrooms), or Cannabis (marijuana).

The Walk-and-Turn Test

The Walk-and-Turn test is a "divided attention" test that requires an individual to concentrate on more than one thing at a time (a mental task and a physical task). The idea behind this is that driving is also a divided attention task (drivers must simultaneously control steering, acceleration and braking, watch the road and react appropriately to their surroundings). Because alcohol and drugs may reduce a person's ability to divide attention, it is believed that an inability to complete a divided attention test adequately is indicative of some level of impairment.

The Walk-and-Turn test is divided into two phases: the instructional phase and the walking phase. During the instructional phase of the test, the officer tells the individual to stand in a heel-to-toe position and remain there until the officer tells him or her to begin the test. During this phase, the person's attention is divided between balancing in the heel-to-toe position and listening to and remembering the instructions for the remainder of the test.

During the walking phase of the test, the individual is instructed to take nine heel-to-toe steps, turn in a specific manner, count his or her steps out loud, and watch his or her feet. This phase divides the individual's attention among a balancing task, a small muscle control task, and a short-term memory task.

The officer observes the individual during the performance of the test, noting if the individual:

  1. Cannot keep balance while listening to the instructions
  2. Starts too soon
  3. Stops while walking
  4. Does not touch heel-to-toe
  5. Steps off the line
  6. Uses arms to balance
  7. Makes an improper turn
  8. Takes an incorrect number of steps

The One-Leg-Stand Test

The One-Leg-Stand test is another “divided attention” test that is commonly used during a DUI investigation. The One-Leg-Stand test consists of two phases: the instructional phase and the balance and counting phase. During the instructional phase, the individual is instructed to stand with his or her feet together, arms down by his or her sides. Once instructed to begin the test, the individual lifts either leg approximately six inches off the ground while counting out loud (“one thousand one, one thousand two, one thousand three,” etc.) until told to stop. (Approximately 30 seconds.)

The officer observes the individual during the performance of the test, noting if the individual:

  1. Sways while balancing
  2. Uses arms to balance
  3. Hops
  4. Puts foot down.

Other (Non-Standardized Tests Commonly Used to Determine Impairment

These tests are non-standardized tests that have not been scientifically validated by NHTSA for use during a DUI arrest. Nonetheless, officers often use them to develop probable cause for arrest. An expert can inform the jury as to the lack of scientific evidence to support the administration of these tests.

Contact a Norcross Criminal Defense Attorney

You have certain constitutional rights in Georgia. Don’t submit to a field sobriety test voluntarily. Speak with a Norcross criminal defense attorney if you have been charged with a DUI based on the results of field sobriety tests. Contact Zimmerman & Associates today to schedule a free consultation.