Stopped by the police? You don't have to be a clown

By Andreea Ionescu • Updated on December 05, 2019

Have you ever been pulled over and asked to perform sobriety tests?  Thinking that you’ve aced them, did you eventually find yourself in handcuffs anyway?

This may not be your experience … yet. Because, in most cases, DWI field sobriety tests do not exist to benefit you.  And you would do well to refuse taking them even if you are completely sober.

Technically, Field Sobriety tests are a series of actions police officers should ask you to perform in order to determine your level of intoxication and to help assess whether or not you should be arrested for DWI.

See details on each field sobriety test here.

During sobriety tests, police officers are trained to look for specific clues. However, the problem here is that determining whether or not these clues amount to intoxication is completely subjective and 100% at the discretion of the officer administering the test. Additionally, the officer’s subjective assessment may be used against you in court regardless of how you thought you did.

The Horizontal Gaze Nystagmus Test (HGN)

For the HGN or the eye test, the officer is looking to see if your eyes are jerking. The reason why they do that is because they are trained that alcohol and/or certain drugs cause jerking of the eye.

The problem with this test is that there are at least 40 other reasons (medical and non-medical) for why the eyes may jerk during this test. And the officers are not trained to recognize the difference between the Horizontal Gaze Nystagmus and the other types of nystagmus. In this case, the officer could count clues against you that would get you arrested, even if you are not intoxicated.

The Walk and Turn Test Test

This test is also known as the divided attention test. The officer gives you a set of instructions that he then wants you to remember 100% and perform perfectly. The theory is that if you are not intoxicated, you should not have a problem remembering the instructions, and execute them.

This test may seem easy in theory. But in practice, it is not.

For starters, here are some issues with this test:

  1.  The instructions are given to you at the roadside with the possibility of onlookers, and passing traffic.
  2.  You are performing these actions with the implicit threat of going to jail and never reaching your intended destination.
  3.  You will likely be given more than 10 instructions to perform.
  4.  You have to remember these instructions and execute them PERFECTLY.
  5.   The instructions are given to you ONLY ONCE.
  6.  Each mistake will result in a clue being counted against you.

The officer will not take into consideration that you may be nervous, that you may not balance well, that you may not have the ability to remember all those instructions under pressure, etc. Among the hundreds of DWI cases I have handled,  I do not recall a single offense report where the officer has taken these into consideration.

The One Leg Stand Test

This one is also a divided attention test. You have to raise your foot 6 inches off the ground, point your toes forward and county to 30 out loud.

Regardless of whether or not you naturally have good balance, if you do any of the following, the officer will count it as a clue of intoxication.

  1.  Sway
  2.  Use your arms to balance
  3.  Hop
  4.  Put one foot down

And to top all this, you are being recorded the entire time, and the video will be used against you! However, the officer will never tell you that you can and should remain silent during the field sobriety tests.

The bottom line? It would be hard to find someone who would pass these tests. After you read this, go try and see how you fare. I would love to hear your results.