You DO NOT have to submit to these tests.

These Field Sobriety Tests have varying degrees of scientific weight, and are mostly gauged subjectively – based on the officer’s “observations.” Remember, if you have been asked to submit to FSTs, the officer probably already suspects you of DUI and is just looking for more probable cause for arrest.  And it doesn’t take much…

You may think that you can “pass” these tests and be on your way, but that is rarely the case.  On each test, the officer is looking for a minimum number of clues to suggest that you are Driving Under the Influence, and whether or not you’ve been drinking, and however well you think you’ve done on these tests, you may be providing the officer with the “clues” needed for arrest.  REMEMBER: You DO NOT have to submit to these tests.

Though there may be legal consequences and license implications for your refusal to submit to Field Sobriety Tests, it is still your right to refuse them, and without results from these tests, it can be difficult and often impossible for the State to convict you of Driving Under the Influence (DUI).

The most commonly administered roadside Field Sobriety Tests (FSTs)  include:

• PBT (Preliminary Breath Test)
• HGN (Horizontal Gaze Nystagmus)
• Walk and Turn
• One-Legged Stand

While the tests described above are the most common Field Sobriety Tests a driver might encounter when stopped and suspected by the police of DUI, other tests and lines of questioning may be used.

Contact the experienced Horlick Law Firm to discuss the specifics of your case today!

The One-Legged Stand field sobriety test is, like the Walk and Turn, not scientific.  It is an opportunity for the officer to observe not only your physical dexterity, but your ability to pay attention to and follow directions.  The results are subjective, and, like any and all Field Sobriety Tests (FSTs), you DO NOT have to participate.

Procedure:

The officer will ask you to stand in one place and hold one foot six (6) inches above the ground.  While you are holding this foot off the ground, the officer will ask you to count out loud, “in thousands,” until you are told to stop.  The officer will tell you that you must keep your eyes on your feet, your arms at your side, and your toes straight while you perform this test.

Clues:

When administering this test, the officer is looking for four (4) clues.  He or she is looking to see if you use your arms to stay balanced, if you sway or hop while trying to balance, and if you put your foot down before the officer tells you the test is over.  In Georgia, meeting at least two (2) of these criteria can justify an arrest for Driving Under the Influence.

Remember: The officer likely already suspects you of Driving Under the Influence (DUI), and is just looking for more evidence to stack against you.  The officer’s initial suspicions may very well affect his or her opinions on whether you performed this test adequately.

Remember, too, that this test is never performed in a vacuum.  It must be performed under optimal conditions (the best being a hard, dry, level, unobstructed surface), and essentially expects people of all ages, physical and pre-existing conditions, to perform and be subject to the officer’s unchanging set of standards.

It may be unreasonable to expect a 65-year old man with arthritis to perform as well as a 22-year old ballerina, and the results can be surprising, but nonetheless, the criteria remain the same.  As such, the officer’s conclusions are always subject to attack and interpretation by a skilled defense attorney.

Like all Field Sobriety Tests (FSTs), this test is voluntary, and you do not have to submit to it.  Additionally, even if you do and the results indicate a presence of alcohol on your breath, there are many alternative explanations for these results that can create a reasonable doubt that the driver was actually under the influence of alcohol.

Many people think that the PBT is same as the “Breathalyzer,” and while it is similar in idea and form, it is much different.  While the Breathalyzer may be administered roadside, it is most often administered after arrest at the police station.  The PBT, however, is administered roadside, and is used to determine whether or not there is a presence of alcohol in a driver’s breath.

The PBT is often called an alco-sensor, and is used to determine probable cause for arrest for DUI.  The Breathalyzer, however, is used to determine one’s Blood Alcohol Content (BAC).  Though the PBT indicates an estimated BAC, this value is not admissible in court.  The PBT is only admissible to show the presence, or non-presence, of alcohol in one’s breath.

REMEMBER: The PBT is notoriously unreliable, as many factors can cause it to incorrectly indicate positively for alcohol — including acid reflux, and certain tobacco, mouthwash, or mints.    Mere indication of the presence of alcohol on one’s breath, without more, is insufficient to establish that one was driving under the influence (DUI) beyond a reasonable doubt.

If you do, however, keep in mind that the results are subjective.

You may think that if you “pass” the test, you will not be arrested, but that is rarely the case.  For one, because the results of the test are not so easily defined as “pass/fail,” and for two, this is just one of the tests that any officer will ask you to submit to.  He or she may not tell you how well you did on the test; he will just make his notations and ask you to submit to more.

The officer is looking for a combination of clues (probable cause) that you are Driving Under the Influence (DUI), and will administer as many tests as you agree to take to stack up this supposed evidence before making his or her determination.

The Walk and Turn test is an evaluation not only of your physical dexterity in performing the test, but also in your ability to pay attention to and follow the officer’s directions.

Procedure:

First, the officer will explain the directions and offer a short example of the procedure.  You will be asked to take nine heel-to-toe steps forward, pivot in a very particular manner, and take nine heel-to-toe steps backwards to the starting position.  The officer will ask you to count each step out loud.  He or she is looking for indications that you can follow directions, and that you may be physically impaired (for instance, not counting your steps out loud, taking more or less than nine steps in each direction, using your arms to balance, swaying, not pivoting correctly…).

Missing just two of these criteria can result in arrest in Georgia.  However, that doesn’t mean that you are guilty of DUI.

You may just be nervous. You may have a medical condition that makes it impossible to perform this test to the officer’s satisfaction.  The belief that you are under the influence is merely one inference that the officer may draw.  The results are subjective, and the officer is just looking to stack up probable cause for arrest.

Even ballerinas can fail this test.

The HGN (Horizontal Gaze Nystagmus) test is often known as the “pen” or “light” test.  This is because the officer administering the test usually uses a pen or flashlight to perform the test.

Without moving your head, the officer will ask you to follow a “stimulus” (usually a pen, a flashlight, or his or her finger) with your eyes as it arcs further and further towards your periphery.  In administering the HGN test, the officer is looking for up to six (6) clues of a twitching or jerking of your eyeballs prior to 45 degrees.

REMEMBER: Nystagmus is generally defined as the involuntary movement of the eyeballs, and can be , but does not by definition have to be, a result of a high blood-alcohol content.

Though that is certainly the  conclusion that an officer administering the test would like to draw, there are many alternative and justifiable explanations for nystagmus that do not require any blood alcohol concentration at all.

For instance, one may suffer from Nystagmus due to a neurological disorder, inner ear problems, congenital disorders, or occupational or labrynthine irritability.  If you suffer from any medical conditions including but not limited to these (there are about 100 non-alcohol related conditions that might cause nystagmus) and the officer administering the HGN test does not inquire about them, and/or the test was not administered properly, the scientific weight and admissibility of these results may be attacked.