Field Sobriety Test in a Chicago Drunk Driving Case
Here’s a common scenario: You are in your automobile, and you have either been pulled over for a possible traffic or vehicle equipment violation, or you were with your vehicle, and while parked, you have been approached by police intent on finding out what you are up to, or whether you “need assistance.” The Officer then asks you if you had been drinking, and indicates to you that he smells the odor of alcohol; or the Officer asks you if you had been smoking anything, and then indicates that he smells the odor of marijuana coming from your car.
Generally, the best course of action at this point is to NOT answer such a question, but instead inform the police officer that you decline to answer any of his questions (although you are required to immediately produce your license and proof of insurance upon request, as you should when an Officer approaches you following a traffic stop). The Officer is almost certainly going to direct you to exit the vehicle for the purpose of performing certain tests, referred to as Standardized Field Sobriety Tests. Although an Officer has the authority to order occupants of an automobile to exit, in most circumstances, save for one, which will be discussed below, an Officer cannot “order” someone to perform these tests, he can merely “request” the performance, which one can refuse to do.
History of DUI Field Tests (FSTs)
The history and the use of certain tests by Police to detect drunk drivers goes back generations. At first, these tests were invented by officers in the field and were not uniformly executed. The tests were meant to divide one’s attention, and poor performance meant that one was possibly intoxicated and subject to arrest and prosecution. Among some of the old tests were: counting backwards from one random number, say, 84 to another number, such as 71; reciting a portion of the alphabet without singing; touching one’s tip of the finger to one’s tip of the nose; picking up coins (pick up the dime, pick up the penny, etc.) and, of course, the one leg stand and the walking heel to toe tests. After some time, it became clear that the tests needed to be made consistent across the board for everyone, with the same set of directions, and the same decision points for the officers to key in on.
Years ago, the National Highway Traffic and Safety Administration (NHTSA), developed a group of tests that, if uniformly used by law enforcement across the country, would ensure that field investigations were based upon objective factors that were put to the test through research and development, before being authorized for use in the field. Today, these tests have the full weight of recognition in the courts across the USA, and are taught to Officers in the Academy, and through on the job refresher courses. In addition to the One Leg Stand and Walking Heel to Toe, there is another test that was developed through research, and has been approved—the Horizontal Gaze Nystagmus Test (HGN).
Purpose of DUI Field Sobriety Testing in Chicago
The stated purpose of these tests, according to the NHTSA training manual, is to allow the Officer in the Field to make an objective assessment of the possible level of impairment of a motorist, and to determine whether or not there is probable cause to believe he or she is impaired by alcohol and/or drugs, etc. Although that is the stated purpose of these tests, the performance and scoring of these tests are also introduced at trial as evidence of impairment in an effort to prove the guilt of the defendant beyond a reasonable doubt.
Horizontal Gaze Nystagmus Test, Heel to Toe & One Leg Stand Tests
The problem with these tests, is that they test one’s ability to divide attention with more dexterity than driving an automobile will ever require: how many times have you had to stand on one leg, counting from One One-Thousand up to Thirty One-Thousand, while holding your leg up in front of you at least 6 inches off of the ground, while holding your arms perfectly at your sides? How many times have you had to walk 9 paces, touching your heel to your toe, while holding your arms at your sides, facing down, counting your steps, executing a specific turn, then doing the same again while on a straight line (real or imaginary)?
The way the tests are graded also makes it very easy for an officer to “decide” to make an arrest. For example, the Walking Heel to Toe Test, also known as the Walk and Turn Test, requires you to stand in a position with one foot directly in front of the other, touching heel to toe, arms at your side, while the officer demonstrates the test while giving the instructions. If you cannot hold that position, a point is assessed. If you do not take the correct number of steps, a point is assessed. If you stop to steady yourself, sway, raise your arms more than 6 inches from your sides, step off of the line, miss touching heel to toe by ½” or more, or execute the turn improperly, points are assessed. Out of nine (9) possible points, if only 2 (two) are assessed, the Officer is trained to call that performance a failure. With the one leg stand, there are 4 points of observation, and 2 or more is a failure there as well.
As for the HGN test, it is impossible to have independent proof of a result of any performance, because only the officer executing the test can see the suspect’s eyes in motion. The HGN test operates on the theory that a sober person’s eyes can smoothly track a moving object, but an intoxicated person’s eyes will have a distinct nystagmus, or jerkiness, to the movement. It can best be explained like this: imagine a marble on a glass surface, smoothly rolling across—throw sand on the glass, and see the marble jerk and bounce ever so slightly as it rolls across. Among the problems with this test, some people have a natural nystagmus even when totally sober. Any sort of movement in the field of vision of the suspect can cause involuntary eye focus on the movement. Flashing lights, passing cars, other officers standing in the peripheral moving around, many things can affect a motorist’s ability to perform this test.
According to the NHTSA manual, these three tests have been shown to accurately predict that an individual is over the legal limit of 0.08 approximately 70 percent of the time. This means that for every 70 intoxicated motorists that fail these tests, 30 innocent motorists also fail. Yet, Judges and juries rely upon testimony about the performance of these tests every day in finding suspects guilty of DUI.
No Suspension from Refusal to Take Fields Tests in Chicago
There is, ordinarily, no legal requirement to take these tests. Of course, refusal will most likely result in one’s arrest, but then the benefit is that there is no demonstrably poor performance to bolster the officer’s observations, just a refusal, which carries NO recognized “consciousness of guilt” or admission that you refused because you knew you’d fail. Of course, one should be polite and courteous when refusing, a simple, “No, Thank You” suffices, without argument or explanation. Your driving privileges cannot be suspended simply because you refused to do these field tests. Although a suspension may follow a DUI arrest if the driver refuses chemical testing or if sufficient drugs or alcohol are present after chemical testing, the officer still has to show reasonable grounds to believe that you were impaired by alcohol or whatever at the time of driving or actual physical control of the automobile.
The one exception to this rule was recently created by our Illinois Legislature, under Section 11-501.9 of the Vehicle Code, which allows that anyone with a Medical Marijuana Card has given implied consent to the performance of Standardized Field Sobriety Tests upon request of an Officer during a DUI investigation, where the officer has an independent reasonable basis to believe the motorist is under the influence of Cannabis. Refusal to perform Field Tests in this context will result in a Statutory Summary Suspension of the motorist for 12 months, while performance/failure of the tests will result in a 6 month suspension. Still, the basic premise of these tests is the same: to help the officers obtain evidence that they will use against you in the prosecution of a DUI arrest. A polite refusal to comply with these tests will tell anyone else much less about your level of impairment than actual failure of the tests ever will.
Think of it this way: Silence leaves others with doubts as to your ignorance, yet speaking removes any doubt. So it is with Field Tests. Refusal may leave one wondering whether or not you are impaired, whereas failure of the tests may leave no room for doubt.
Contact Our Chicago DUI Field Sobriety Test Attorneys
If you have been arrested for a DUI, you need the help of a knowledgeable lawyer to fight for you and for your rights in court. Contact us online, or call us 24 hours a day at (800) 996-4824. The Chicago drunk driving defense lawyers at Mitchell S. Sexner & Associates LLC have the knowledge and experience to make sure your rights are fully protected. We have handled thousands of such cases before and are ready to help you as well.