Field Sobriety Tests

THE ROADSIDE TESTS ARE VOLUNTARY AND SHOULD BE REFUSED

Want to help police officers build a DUI case against you? If so, take their tests in ignorance. Want the real truth? Then protect yourself and read on.

"Field sobriety testing" (or FSTs) as practiced on the city streets and highways of Washington State is not an effective indication of a person's level of intoxication. There are no conclusive studies linking the results of any field test to legal intoxication. The best studies show less than an 80% rate of accuracy.

Only three of the tests available to officers have been given any shroud of "scientific" legitimacy by the National Highway Traffic Safety Administration (NHTSA). These tests are:

• The Horizontal Gaze Nystagmus Test
• The Walk-and-Turn Test
• The One-Leg-Stand Test

All other tests are not validated in any official way. In fact, many of the tests involve closing your eyes and balancing. Without a visual frame of reference, no "balance" test can honestly claim to measure sobriety or intoxication.

Therefore, tests such as the Finger-to-Nose Test and the Rhomberg Balance Test should be avoided.

Other tests, such as counting or saying the ABCs backwards, counting one's fingers, or playing "pattycake", have no correlation whatsoever to one's ability to operate a motor vehicle safely.

Officers regularly testify that FSTs are gauged to measure "divided attention." For instance, when you drive, you must divide your attention between several tasks, such as steering, breaking, navigating, and signaling. The theory is that alcohol impairs one's ability to divide attention.

You have the absolute right to refuse to submit to field sobriety testing. If you decide to take the tests, the officer casts his/her own interpretation of your performance on your case. Keep in mind that the officer is already investigating you for DUI and, in all likelihood, will arrest you even if you take the FSTs.

THE DRAWBACKS OF REFUSING THE TESTS

Contrary to common misunderstanding, refusing to submit to field testing will not result in the suspension of your driving privileges (unless you are on probation and/or have another case pending in which a judge has ordered you not to refuse to take the tests). The biggest drawback of refusing these tests is that the prosecutor will argue that you refused out of a "consciousness of guilt." The prosecutor will try to make the jury believe that you didn't take the tests because you knew you were drunk and would fail them. The other major drawback is that the officer will probably arrest you right away. Usually, this just speeds up the inevitable. The officer might also threaten that if you don't take the tests, you will be booked into jail. If threatened, generally it is okay to do them, just let the officer know that you are cooperating out of respect for him/her and politeness and that you are doing so under protest. That way, your DUI attorney can later make a motion to suppress the tests because they lacked your voluntary consent.

CONCLUSION

As a general rule subject to very few exceptions, I recommend that you politely refuse to take the tests.

At my Seattle-based law firm, Peter J. Peaquin, Attorney at Law, I concentrate solely on Washington state DUI defense for individuals throughout the Western Washington and Puget Sound areas, including the locales of King County, Snohomish County, and Pierce County and Bellevue, Everett, Tacoma, Everett, Lynnwood, Mukilteo, Bothell, Redmond, Kirkland, Mercer Island, Issaquah, Burien, Renton, Seatac, Tukwila, Kent, Des Moines, Auburn, Federal Way, Lakewood, Puyallup, Bremerton, and Bainbridge Island, please contact us today for a free consultation