Should I Do Field Sobriety Exercises?
I know your looking for a simple yes or no, a definite "always refuse fields and always refuse breath test". However, I don't believe that anything in law is definite. There may be a time when giving a breath sample is the smart play, or talking to an officer (with an attorney present) is the right move and there may be a time when performing the ridiculous field sobriety exercises (FSEs) is a good thing.
You are not required in Florida to perform FSE!
Unlike refusing to provide a blood, breath or urine sample, you will not have your drivers license suspended if you refuse to perform the FSEs. The choice is yours.
Before you make any decision, you should understand what the officer will be looking for and what information will be provided to the jury in your trial. For starters, if you refuse to perform FSEs, the State will disclose your refusal to the jury.
Below are a few of the most common FSEs, in addition, click the link to view a sample field sobriety report written up. You can see the different items the officer is looking for and what they believe to be relevant to proving you are intoxicated.
The horizontal gaze nystagmus test (HGN) is often the first field sobriety test administered. You have probably seen this test before, where the officer holds a pen up straight and request the person to follow the pen with their eyes as the officer moves it side to side and up and down. Nystagmus is an involuntary jerking or bouncing of the eyeball that occurs when there is a disturbance of the vestibular (inner ear) system or the oculomotor control of the eye. Horizontal gaze nystagmus (HGN) refers to a lateral or horizontal jerking when the eye gazes to the side. In the impaired driving context, alcohol consumption or consumption of certain other central nervous system depressants, inhalants or phencyclidine, hinders the ability of the brain to correctly control eye muscles and may cause the jerk or bounce associated with HGN. As the degree of impairment becomes greater, the jerking or bouncing, i.e. the nystagmus, becomes more pronounced. This is assessed in the horizontal gaze nystagmus test.
The Walk and Turn
You stand in a heel-to-toe fashion with arms at the sides while a series of instructions are given. Then, the suspect must take nine heel-to-toe steps along a line, turn in a prescribed manner, and take another nine heel-to-toe steps along the line. All of this must be done while counting the steps aloud and keeping the arms at the sides. You should not stop walking until the test is completed.
One Leg Stand
This exercise requires you to stand on one leg. The other leg is to be extended in front of the suspect in a stiff-leg manner, with the foot held approximately six inches above and parralel with the ground. The suspect is to stare at the elevated foot, and count aloud until told to stop, in this fashion "one thousand and one, one thousand and two, one thousand and three..."
You can see from the sample field sobriety report the officer is looking at a number of things, including balance and the ability to follow directions. These exercises are not set up for someone to "pass". Each of the checks or comments of things done incorrectly are supposed to be "indicators of intoxication". As you can see, there are no checks for things that are done correctly, the only options on the report are for "indicators of intoxication", things done wrong. This one sided report is an obvious danger to anyone performing FSEs.
Things to consider if you are pulled over and asked to do FSEs:
- Be very clear about any injuries you may have that would hinder your ability to perform FSEs, including any issues with balance, hearing or vision.
- Always be polite. You can see on the bottom of page one of the sample, there are several boxes for an officer to check regarding Attitude. It is a tremendous help during trial when I can refer this section and have the officer say you were polite and cooperative.
- Ask if the FSEs are going to be videotaped. Videos can be very important in a DUI, because so much of the evidence against a defendant is based upon a police officers observations. As you can imagine sometimes these observations are a bit exaggerated. I had a DUI trial recently where the Arrest and Booking Report described a young woman as off balance, not being able to stand still, not "passing" any of the field sobriety exercises and very clearly trying to paint the picture of a drunk young woman. Upon viewing the video, nothing could have been further from the truth. The video showed a young woman being polite, following all directions and completing all the field exercises (while in high heels) as instructed. Her balance was impeccable. During the trial, the officer kept referring to the "indicators of intoxication" he observed. On cross examination, I slowly went through the entire video with him, having him admit to every positive thing this young woman did and the jury came back in 8 minutes with a not guilty verdict. If we did not have that video, the officer's testimony would have had more credibility and the innocent young woman could have been found guilty.
- You are not required to do FSEs, however, your refusal can be used against you at trial.
If you have been arrested for a DUI and You Have Questions About Your Case
Please contact Clifton Law Office, you can reach me at my contact page online or call me directly at 904-209-4883.