What If I Fail a DUI Field Sobriety Test

Categories: DUI Defense

A-woman-asked-by-a-cop-to-be-tested

If you have failed a DUI field sobriety test (FST) in Colorado, then chances are that you have been arrested and charged with a DUI. If so, then you should contact a DUI defense attorney immediately. There are many defenses against a DUI arrest resulting from an FST, and your first step is to get the representation you need to protect your rights.

Do You Have to Take a Field Sobriety Test in Colorado?

Many people don’t know it, but FSTs in Colorado are voluntary! You do not have to give your consent to take the test. If an officer pulls you over on the suspicion that you are driving under the influence, he may tell you that he wants you to take the field sobriety tests so that he is sure you are safe to drive home. If you haven’t had anything to drink or think you could easily pass these tests, then you may be tempted to take the test.

Unfortunately, if an officer has pulled you over for suspected DUI, they are already likely to be convinced you are impaired. By getting you to take these tests, they are usually just trying to confirm their suspicions and give themselves more probable cause to arrest you. The problem with these tests is that they require you to move in a way that is not natural for human beings. The officer typically runs through complex instructions quickly and then expects you to perform these awkward movements perfectly.

We caution against taking these tests because of how inaccurate they can be. However, if you decline, do so with respect. Politely tell the officer that you do not feel comfortable with the accuracy of the tests and, therefore, respectfully decline to take them. If you so refuse, be forewarned that you will likely then be asked to take a breathalyzer test. However, chances are that you will be asked to take the breathalyzer, regardless of whether you do the FSTs or not.

Should you choose to take the FSTs, however, we recommend that you have the officer either use his body camera or dashboard camera to record your performance. While an officer can exaggerate his findings on a police report, a video will record your test so it can be assessed by a more impartial observer at a later time.

Types of Field Sobriety Tests

There are three FSTs for which the National Highway Traffic Safety Administration (NHTSA) has created standardized procedures.

The Horizontal Gaze Nystagmus (HGN)

With this exercise, the officer will ask you to stand with your hands to your side and your head facing straight forward. Then the officer will use a light or a pen and ask you to follow the movement of the object with your eyes from side to side without turning your head. During the HGN, the officer is observing:

  • If your eyes begin to jerk before they have tracked to 45 degrees,
  • If your eyes sustain an involuntarily jerky motion while following the object, and
  • If your eyes are unable to smoothly follow the object.

If your eyes exhibit any of the above traits, the officer will see that as evidence that you are impaired.

The Walk-and-Turn Test (WAT)

The walk-and-turn test is supposed to determine whether you can multitask. The officer will ask you to stand heel to toe, with both feet pointing straight forward. You must then walk heel-to-toe with your arms by your side for nine steps while counting each step out loud. Then you must pivot, turn, and take another nine steps back. In this exercise, the officer is looking for a variety of things.

  • Can you walk heel-to-toe in a straight line without pausing or stopping?
  • Are your steps even and smooth?
  • Do you lose your balance at any time?
  • Do you step off the line at all? The officer can use even one misstep as a signal that you are impaired.
  • Do you take exactly 9 steps forward and 9 steps back?
  • Do you properly count out loud in unison with your steps?
  • Did you turn properly? If you do not execute the pivot turn exactly as instructed, the officer can assume that you were too impaired to understand the instructions and/or too impaired to execute the turn properly.

The One Leg Stand (OLS)

With this exercise, the officer asks you to stand straight with your feet together and arms at your side. Then the officer asks you to raise one foot 6 inches off the ground and hold it there while looking at your raised foot. You must hold your raised foot steady and count out loud for 30 seconds by using the “one thousand one,” “one thousand two” method. Signs of intoxication with this exercise include:

  • Swaying or losing your balance at all during the 30 seconds,
  • Hopping (usually in an attempt to maintain balance), or
  • Touching your foot down to the ground, even temporarily, before the 30 seconds are up.

Defenses against Field Sobriety Conclusions

Even the NHTSA has conceded that these field sobriety tests are only accurate 65 to 77 percent of the time. Additionally, many reasons other than impairment can account for your inability to perform these exercises.

An imperfect Horizontal Gaze Nystagmus test could be caused by eye diseases, sunstroke, glaucoma, inner ear conditions, changes in barometric pressure, cardiovascular disease, and substances such as caffeine, nicotine, or aspirin.

People who are overweight, ill, injured, or who have chronic issues such as knee or back pain can have difficulty balancing even under the best of circumstances. This can account for “failing” the Walk-and-Turn and/or the One-Leg Stand tests.

The reported accuracy of these tests allows for at least a 23% failure rate, even under controlled environmental conditions. But in the real world, environmental conditions are not perfect, and any of the following things can negatively affect your performance.

  • Heavy or other restrictive clothing that makes the test more difficult,
  • Uneven surfaces (like the side of the road),
  • Prescription drugs,
  • Over-the-counter drugs,
  • Fatigue,
  • Unclear instructions,
  • Weather conditions,
  • Inadequate lighting,
  • Extreme nervousness caused by a police interrogation, and
  • An officer who has not been adequately trained to administer these exercises.

Get an Experienced DUI Defense Attorney

If you or a loved one has been arrested for DUI in Colorado, you need an attorney by your side who is familiar with all of the possible defenses available to you. A DUI can cause major upheaval in your life, so don’t sit idly by and allow the courts to determine your future. Call us for a free consultation or fill out our online contact form. Let us put our experience to work for you today.