Driving While Intoxicated and the Field Sobriety Tests
Field Sobriety Tests (FST) are a common method to determine whether there
is reasonable cause to believe that a person is
Driving While Intoxicated (DWI). The New York State police, local police and county police use FST as
part of any DWI stop and DWI investigation. In those tests a motorist
is asked to step out of their vehicle and engage in a number of physical
acts which are designed to test a person’s coordination for the
purposes of determining intoxication. Motorists generally cooperate with
these tests and rarely refuse to take these FST. If the FST are refused
your driver’s license will NOT be suspended unlike a chemical test refusal.
In any DWI investigation in New York State, these tests will be offered.
In Bedford Court in Westchester County, White Plains City Court in Westchester
County, Yonkers City Court, Southeast (Brewster) Court, or any other court
in Westchester, Rockland, Orange, Putnam or Dutchess Counties the Courts
will provide a motorist a list of FST at arraignment. It is usually a
form with boxes checked off regarding the test, if the tests were refused
and if the motorist passed or failed the FST. The State Police have a
standardized form but local police may used their own form.
What are These Tests?
The FST commonly use include the following:
Horizontal Gaze Nystagmus Test (HGN) – In this test the office asks you to follow his pen with your eyes.
The test looks for an involuntary jerking motion of your eyes. Although
this test can be used by the officer to determine intoxication it is rarely
admitted into evidence at trial.
The Walk and Turn Test — In this test you are asked to walk heal to toe, turn and walk
heal to toe again. Usually it is anywhere from 1-10 steps. Rarely is this
test given on a flat surface on a painted line. Usually its on the side
of the road with cars driving by at 60-70 miles per hour, at night with
the police car lights flashing in the background.
One Leg Stand — The officer will ask you to stand on one leg for 30 seconds. The
officer is looking for swaying, moving arms up more than six inches for
balance (most individuals keep their arms to their side making the test
very hard), hopping or putting your foot down.
Finger to Nose Test — In this test a motorist is asked to stand with their feet together,
close their eyes, extend their arms out and touch the tip of their finger
to the tip of their nose.
ABC Test — In the Alphabet test, the officer will ask the motorist to recite
the alphabet test usually from the middle to the end.
The Defense to the DWI, Field Sobriety Tests
There may be additional tests but the above are the major tests a police
officer will use to determine intoxication. The tests are all defensible. The best
criminal defense to a DWI charge is an attack of these tests including:
- Lack of instructions regarding how to perform the test.
- Lack of officer demonstration regarding how to perform the test.
- Conditions during the test, such as performed on a busy highway.
- The subjective nature of the test.
- Officer’s presumption of guilt that they are just “going through
the motions” before an arrest.
- The officer rushing the tests.
- The motorist actually passed the test and the officer marked it as failed.
There are of course more ways to defend the FST test but this is just a
general line of attack for the best criminal defense, every person is
in a different position. For example, in the defense of a DWI charge on
684 in North Castle (Armonk), New York the officer allowed a women to
take her 2 inch high heals off but was told to perform the one leg stand
test and walk and turn test on the side of the road with rocks, dirt and
even glass under her feet clearly putting her at a disadvantage. The defense
of a DWI charge is always tailored to your specific facts and circumstances.
Criminal Defense of the Field Sobriety Tests
FST in any
criminal defense must be attacked since the District Attorney will use that test as strong
evidence of guilt. Since all the police have to do is check off a box
there is the temptation to rush through the tests and check off as many
boxes as possible. That is the first and best criminal defense to DWI,
FST. Our DWI criminal defense lawyers cross examine the administration
of the tests and the motorist’s performance but also the validity
of the tests as an indicator of intoxication and the subjectivity of the
judgment of the police officer.
FST and a Chemical Test Refusal
As a criminal defense attorney and a DWI criminal defense attorney I always
prepare the best defense for my clients. I review the evidence from the
District Attorney and determine if they have a strong case or a weak case.
FST will be used as evidence of guilt but your driver’s license will
NOT be suspended if you refuse to take any of those tests. However, if
you refuse to submit to a chemical test your driver’s license will
be suspended and you may also face civil penalties. A chemical test will
also be used a evidence of guilt.
If its one’s goal to minimize the amount of evidence against them
at trial and they refuse a chemical test to accomplish this the FST should
be refused as well.
The DWI Arrest
If the police feel you are intoxicated or impaired (DWI) (DWAI) they will
make an arrest. The best course of action after any arrest is to call
a DWI criminal defense attorney. Not only can a lawyer explain your rights
to you and the best defense for your case but you should immediately feel
better that your lawyer is attacking the case and will do whatever necessary
to protect you.
If you or a family member is charged with a DWI related offense call my
office for a free consultation. We regularly appear in the Courts of Westchester,
Putnam, Dutchess, Orange, Rockland and the Bronx.