Why You Should Never Do Field Sobriety Exercises in Fort Lauderdale, Florida: DUI Lawyer in South Florida Explains
First things first – whenever police officer pulls you over while you’re driving in South Florida, they need to have probable cause to do so.
Probable cause is the reasonable suspicion that you, the driver, is violating the law. Some examples that may allow an officer to pull you over are: speeding, recklessly driving, or expired tags. These examples may lead an officer to pull you over, and could quickly turn into a Driving Under the Influence (DUI) investigation after a few questions on how your day or night is going.
What are some actions you could do that would lead the officer to reasonably believe you are under the influence of drugs or alcohol while driving (DUI)?
- Perhaps you were recklessly driving, and may have been swaying through lanes or driving on the wrong side of the road
- Physical appearance indicators such as blood shot or glazed eyes or even slurred speech
- The officer is likely to ask you if there has been alcohol consumption, and if you answer by admitting to drinking that will allow the officer to pursue a DUI investigation (you can always tell the officer you are asserting your 5th amendment right to remain silent, and refuse to answer ANY question)
- A part of a DUI investigation is Field Sobriety Exercises. These exercises are meant to help the officer determine if the driver is truly impaired. Some exercises were created to test the driver’s ability to keep his or her attention as other exercises are meant to test the driver’s coordination
What are Field Sobriety Exercises? DUI Lawyer explains
When police do a DUI Investigation, it often includes requiring a person to do a set of exercises to help the officer test and determine if a person is under the influence of drugs and alcohol.
The secret of the exercises is police are looking for both what they tell you to do – and other undisclosed “cues”. Each exercise has a very specific list of cues police are trained to notice, and if the person being questioned does enough “cues” per exercise the result will he or she is more likely to be under the influence.
Basically, a “Cue” is almost interpreted as a “clue” that the person may be intoxicated. That is why police look for a certain number of cues, as if many occur it’s more likely the person is under the influence of alcohol or drugs.
These sobriety field exercises are not “pass” or “fail,” but the more cues the person in question presents, the more likely the officer will end the DUI investigation by making an arrest for DUI. Chances are, if an officer begins a DUI investigation, you’re likely getting arrested no matter what.
Police are taught to look for specific cues, but if the person doing the field sobriety exercises conducts the requested exercise slightly “off” from the instruction – for example losing his or her balance for one second but afterwards maintaining balance for the rest of the instructed time in a One Leg Stand – the officer will likely assume the one second of imbalance was a cue of intoxication.
These exercises, however, are not that easy and have the opportunity to make anyone look intoxicated which usually results in the officer requesting a breath test.
You Don’t Have to Do the Field Sobriety Exercises in Florida
Guess what? In Florida there is no legal consequence for not doing the field sobriety exercises. If you say no, you simply don’t have to do them – and you can’t get in trouble for saying “no.”
Even if you are completely sober, even if you haven’t had an alcoholic beverage in days – we still recommend that you say no to the field sobriety exercises. The exercises are difficult to do sober, and the last thing you want is to “fail” the sobriety exercises and get arrested in South Florida for what an officer assesses as you being DUI even though you’re completely sober.
Below, we’ll teach you more about each exercise and specifically why you shouldn’t do each one.
STANDARDIZED FIELD SOBRIETY EXERCISES
The Eye Test: Horizontal Gaze Nystagmus
In the Horizontal Gaze Nystagmus Drill or HGN, in short,exercise the officer asks the person in question to follow an object with their eyes. Usually the officer holds a pen or a flashlight and asks the person in question to follow the object with their eyes only – not by moving their head.
What’s the purpose of the Eye test?
This exercise tests the Nystagmus. Nystagmus is when your eyes involuntarily shake or jerk – this can be a cue for intoxication.
Consuming alcohol or depressants (perhaps other drugs) hampers the brain’s ability to control the eye muscles. As a result, these shakes or jerks, known as Nystagmus occur.
What’s the Officer Looking For?
The officer is trained to notice specific impairments as a cue of inebriation. For this exercise, the cues are lack of smooth tracking of the object, any distinct shakes or jerks by the eye at maximum deviations and having nystagmus before having the eyes be at 45 degrees.
Why You Shouldn’t do the Eye Test
HGN isn’t a completely accurate exercise because Nystagmus may occur with someone who has health issues. Sometimes it can be due to side effects of a stroke, past head injuries and impaired vision. This exercise is unreliable to give complete accuracy if the person in question is intoxicated.
Walk-and-Turn
The Walk-and-Turn or WAT, in short, is an exercise to see the person’s ability to pay attention. Officers can choose to describe the rules differently, such as talking through them quickly or being more instructive. The person is instructed to walk nine steps, heel to toe, along a straight line. When reaching the ninth step, the person is instructed to turn by one foot to do another nine heel-to-toe steps to return to the starting place. Lastly, the person is asked to count out the steps, one through nine, both times.
What’s the Officer Looking For?
There are a handful of cues the officer is looking for to show intoxication during the Walk-and-Turn. The cues are:
- Unable to keep balance while listening to the Officer’s instructions
- Beginning the exercise before the Officer gives the green light to do the walk
- Inability to stay balanced while walking the nine steps heel-to-toe method and stopping if needed to recover his or her balance
- Not touching heel to toe in each of the 18 steps of the person raises his or her arms to help with balance at any time
- Not properly conducting the turn as it was instructed with only one foot
- Not completing the correct number of steps in the instructions, such as taking too many or too little steps
Why you Shouldn’t do the Walk and Turn
The WAT is not completely accurate, as it depends on outside circumstances and the person’s health. This exercise may be affected by the weather, such as if it rained beforehand, or if the surface the officer asks a person to do the WAT is not completely flat and level. If the person doing the exercise has an injury, is disabled in any way, has inner ear issues for balance, or even is over a certain number of pounds overweight — all these factors could contribute to a person showing “cues” of intoxication – whether they’re intoxicated or not.
One Leg Stand
The One-Leg Stand or OLS, in short,is a divided attention exercise and test. The officer will instruct the person to stand on one foot with the other about six inches above the ground. The person will have to count “one-one-thousand, two-one-thousand,” etc, all the way up to 30.
What’s the Officer looking for?
The cues the officer is looking for to see intoxication during the one-leg stand are:
- Swaying while trying to keep balancing
- Using arms to balance
- Hopping to keep his or her balance
- Putting the elevated foot below the six inches or completely down to the floor
Why you Shouldn’t do the One-Leg Stand
This exercise is unreliable due to unreliable environments – such as if the area is flat and dry, for example.. Additionally, if the person has a physical injury, past or present, it could hamper his or her ability to properly conduct the One Leg Stand. An injury could be a major reason for any cues presented instead of the person’s possible intoxication.
NON-STANDARDIZED FIELD SOBRIETY EXERCISES
Finger-to-Nose Test
This exercise isn’t even actually approved by the National Highway Transportation Safety Administration (NHTSA). It’s important to note that this exercise doesn’t have measurable criteria to determine if an individual is intoxicated. It also doesn’t have any standard guidelines as to what counts as a “cue” of intoxication.
What’s the officer looking for?
Due to not being approved and standardized, what the officer interprets from a person doing the finger to nose test is highly subjective.
For this exercise, the officer will ask the person to stand with his or her feet apart with hands to the side. The palms of the hands will be facing the officer, who is in front of the person. The officer will ask the person to tilt his or her head back and close his or her eyes. The person will be asked to touch the tip of their nose with their finger, and then bring their hands back to the original position. The officer will cue the person to do this each time, until the person has touched their nose with each of their fingers three times.
These are the cues the officer is watching for:
- Can this person follow instruction properly
- Is this person swaying and if so, in what kind of direction
- Overall does this person’s legs, body or eyelids shake or twitch more than expected
- this person more calm or stiff than normal
- s this person making noises, or comments
- Throughout the exercise, the officer will watch the person’s depth perception
- In each request for finger to nose, the officer will be checking if the person has the ability to touch their nose
An officer may adapt this exercise for a person who has a physical inability to stand and conduct the finger to nose exercise. If a case like this arises, the officer will have the person sit in the patrol car or a place where the person feels comfortable to sit and still able to conduct the exercise. After confirming the area where the person will sit, the officer will proceed with the Finger to Nose exercise.
Rhomberg Balance Test
This sobriety field exercise is not approved by the NHTSA; therefore, the Rhomberg Balance test is not standardized. The officer who chooses to do this test will ask the person to do the following:
- Stand with his or her feet together
- Tilt his or her head slightly back
- Close his or her eyes
- Estimate when 30 seconds have passed, and when the person believes that 30 seconds have passed to tilt their head forward and open his or her eyes.
What’s the officer looking for?
The officer will be trying to see a specific set of cues of intoxication which are:
- Is this person swaying and if he or she is then in what direction?
- How accurate is this person in estimating the time frame of 30 seconds?
- Does this person’s body shake in regard to his or her body, eyelids, legs, arms?
- When taking this test, is this person more stiff or relaxed than normal?
- When the person is taking this test, does he or she make any sounds?
- Does this person have the ability to follow directions correctly?
- A major emphasis for this test is the lack of standard and lack of approval by the NHTSA. The person who has an officer that chooses this sobriety field exercise is at their mercy.
Finger-Count Test
This Sobriety Field exercise is not a standardized test, which means throughout the exercise is being completed the defendant is at the mercy of how the officer’s impression of what the “cues” are. The exercise will be as follows:
- The defendant will be asked to put one hand in front of him or herself with their palm facing upwards
- With the top of the thumb of the hand, the defendant will touch the tip of each finger while asked to count out loud “One, Two, Three”
- The process will be asked to do in reverse order while being counted out loud
- This will repeat to have done three complete sets
What is the officer looking for?
The officer will be trying to see a specific set of cues of intoxication which are:
- The person’s ability to listen and follow the officer’s instructions.
- Able to count correctly in a continual manner by completing the three sets.
- Able to touch each finger with the correct sequence of the matched number.
- See the overall manner of the person on how he or she begins and ends the sets.
- Observe if the defendant completes the proper amount of completed sets as instructed.
Standing vs. Seated Field Sobriety Exercises
In a DUI investigation, the officer will ask the defendant if there are any physical issues with him or her that could affect their ability to complete the exercise. Also, if there is a weight conflict for completing the exercise, the officer will request specific exercises that can accommodate the defendant. The officer usually asks the defendant to conduct each exercise standing to see the potential level of impairment, but if the defendant has a physical issue then the officer will request only exercises that can be completed seated. Some exercises can be completed by either standing or seated while others are exclusive to only one route to complete.
SEATED FIELD SOBRIETY EXERCISES
Hand Pat: A Seated Exercise
This exercise, just like the Finger to Nose, is not approved by the NHTSA; therefore, the Hand Pat is not a standardized test. The officer will ask the person to place one hand extended, his or her palm up out in front of his or her body. The Officer will then instruct the person to place the other hand on top of the other hand with the palm facing down. The officer will tell the person to have his or her top hand begin patting the bottom hand and rotate 180 degrees from the back to the palm of the bottom hand. As the person pats their top hand the officer will instruct him or her to count out loud “One..Two..One..Two, etc.”.
What’s the officer looking for?
This exercise has four cues the officer is looking for to see if the person conducting the Hand Pat is intoxicated:
- The person’s ability to follow instructions properly.
- The person’s ability to count correctly.
- The person’s ability in their rotation and the sequence of their hand patting.
- By the command of the officer, the person’s ability to start and stop the hand pat.
This exercise has no standard set, and as a result this is solely under the discretion of the officer because this is a very subjective test.
Conclusion: Don’t Do Field Sobriety Exercises in Florida
It is up to the discretion of the officer to decide which field sobriety exercises they’ll use as part of the DUI investigation.
Some exercises are approved by the NHTSA, which means they are standardized. Other exercises are non-standardized because they lack approval by the NHTSA.
Whichever exercises the officer chooses, these tests are not reliable to see if a person is intoxicated or not. Many factors may cause an individual to conduct them improperly, even in a sober state. An officer has a duty to ask if there are any physical injuries or issues that will prevent the person from conducting any exercise but the questioning by the officer is usually more vague than specific, in order to have the person in question present cues when he or she does the exercises.
Field Sobriety Exercises are heavily subjective to the officer present at the scene and you will be under their prejudices, mercy, opinions and training, or lack of, of the particular officer.
These exercises are not reliable, and you will likely present a cue by the opinion of the officer with his or her discretion of what that cue is. If asked by an officer to conduct Sobriety Field Exercises, it is best to simply say no and to not do any of them. Not doing the exercises makes it more difficult for the State Attorney’s Office to prosecute you. It limits the amount of evidence for your case. It is always best for your case if there isn’t anything recorded as evidence that may be used against you. Anything you do for the police will be used against you, rather than used to help you.
If you have been charged with a DUI in Fort Lauderdale or anywhere in South Florida, don’t hesitate to reach out to the Rossen Law Firm today at (754) 206-6200. We offer FREE Strategy Sessions where we listen to your side of the story and then with you we tell you the strategy we would use to protect you and defend your rights.
Schedule your FREE DUI Consultation today:
- Fort Lauderdale: 754-206-6200
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