Prior to making a DUI arrest, a police officer will ask the subject to perform a series of field sobriety tests unless there is a legitimate concern for the subject’s safety. The primary tests are: Horizontal Gaze Nystagmus (eye test), the Walk and Turn, and the One Leg Stand. Occasionally, the officer will request additional tests, but there has not been much peer-reviewed literature suggesting the accuracy of other tests. A lot of people agree to take these tests whether they are sober or not, “If I don’t feel drunk, I’ll be able to pass these, easy peasy.” When someone then gets arrested for DUI, he or she is a bit shocked thinking all the tests were passed except perhaps the breathalyzer. However…

If you have been arrested for DUI, you probably failed the tests.

In many respects, these tests are designed to make you fail as law enforcement look for various signs that they do not tell you about while performing the tests. For example, one of the tests, the Walk and Turn, the officer asks the subject to take nine heel-to-toe steps forward, turn and nine steps back. Sounds easy enough right? However, simply “completing” this test upright is not enough to pass…not even close. The officer is looking for eight different “clues of impairment” and only need to observe two in order to conclude that you “failed” the test. For example, missing heel-to-toe even on just one of the eighteen steps is one of the clues and if just one more of the other seven clues is presented, it is counted as a failure (a few of the other clues include stepping off the line, even when imaginary; starting the test too soon; and making an improper turn).

Needless to say, these tests are not easy. Importantly, if the officer incorrectly observes the clue or fails to properly administer the test, the results become suspect but may still be difficult to challenge. I know exactly what the officers are looking for and I would still be hesitant to take any of the tests sober!

It is worth noting, that refusing the field sobriety tests may be used against you in Court. State ex rel. Verburg v. Jones, 211 Ariz. 413, 415, 121 P.3d 1283, 1285 (App. 2005). However, officers need probable cause to make an arrest and sufficient evidence of a DUI is sometimes lacking without test results. As a result, it is typically advisable to politely decline to take any pre-arrest tests and immediately request an attorney.

If you have been stopped or arrested for DUI, call defense attorney Matt Maerowitz for a free consultation at 602-912-5897.

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