Whether at a checkpoint stop or just being pulled over, you may be asked to take a field sobriety test to determine if you are driving under inebriation. However, you do have the right to refuse to take these “roadside tests” even if you have consumed alcohol.
But if you’re sober, why not take them and prove that you are? Because like a breath alcohol device, field sobriety tests are not always accurate, and may not be properly administered. You could end up being arrested for “driving under the influence” when you’re anything but.
Field Sobriety Testing (FST)
North Carolina officers administer a series of three roadside tests to determine if a driver is impaired:
· The “Walk-And-Turn” Test—the officer will ask you to walk in a straight line, one foot in front of the other so that the officer can observe your sense of balance. He or she may also ask you to take a specific number of steps, and observe if you can remember the number. Unfortunately, a number of variables can affect your balance, from foot pain to uncomfortable shoes to other physical impairments.
· The “One Leg Stand” Test—the officer will ask you to stand on one leg for 30 seconds and count to 30. The officer will observe both balance and your ability to count. The officer is looking for four things:
- Swaying while balancing
- Balancing with arms
- Putting down the raised foot
Like the previous test, a number of variables can affect the outcome, including your age, weight, street or weather conditions or your current physical condition, such as an injury like a pulled muscle. Officers who incorrectly administer the test may interpret the results incorrectly, declaring you “impaired.”
· The “Horizontal Gaze Nystagmus Test” (HGN)—this is the test where an officer asks you to stand still, hands at your sides, and follow his finger, a light, or some other object put in front of you. If your eyes don’t move smoothly side to side, but in a jerking fashion, you’ll be determined to be “impaired.”
Additionally, breath alcohol testing mechanisms may not be used or calibrated properly, leading to even more inaccurate evidence.
These tests are, by some accounts, designed to make you fail them. The passing and failing of these tests is a personal decision made by the officer.
Obviously, a number of factors can affect the outcome. Fatigue, allergies, injuries and other ailments can lead to a “failed attempt.” An elderly driver not in peak physical condition may not be able to hold his or her leg up for 30 seconds or do a walk-and-turn to the officer’s satisfaction.
No matter how well you perform these tests, if the police officer renders an opinion in court that you didn’t perform them adequately, this would indicate to him or her that you were indeed “impaired,” even if you weren’t. A jury may well side with the officer based on his or her opinion.
Additionally, breath alcohol testing mechanisms may not be used or calibrated properly, leading to even more false evidence.
Refusing The FST
So what happens if you refuse to take these tests?
You are within your rights to refuse to take the FSTs, as well as inform the officer that you have a medical condition that can affect the outcome (such as recent knee surgery.) You will not lose your license. But because of the high incidence of incorrect results, it’s better to decline the FST rather than explain to a court why you failed them. This way, you’ll be arguing that the testing is unreliable and wasn’t suitable instead of defending yourself against a “failed” FST.
CAVEAT: refusing the EC/IR-II Breathalyzer test is another matter and can lead to a year-long suspension of your license. This is not the same as refusing the FST. But like the FST, these devices are also subject to incorrect results, especially if the officer is not properly trained in their use, or it has not been properly calibrated or maintained.
Miranda warnings are also not required before a Breathalyzer is administered.
Have You Failed An FST? Call An Experienced DUI Attorney
If you’ve been subjected to a suspected DUI traffic stop, Dewey P. Brinkley is a Raleigh attorney who can aggressively defend you and protect your rights in court. He will review all the evidence in your case and ensure that you have a fair trial.
Call the Law Offices of Dewey P. Brinkley today for a free initial consultation to discuss your DUI case at (919) 832-0307. You can also email us at firstname.lastname@example.org, or use our online contact form.