Disputing the Field Sobriety Tests – “Failure” doesn’t necessarily mean intoxicated. (Part B)

FST #2 - 9 Step Walk and Turn

With the 9 Step Walk and Turn. You are told to place your left foot on a line (real or imaginary) and to place your right foot in front of your left foot, touching heel to toe. You must place your arms at your sides. You remain in this "Instructional Position" while the police officer explains the test instructions. You cannot start the test until the police officer states, "Begin."
The instructions are:

  • When told to begin, you will walk nine heel to toe steps, turn, and take nine heel to toe steps back;
  • During the turn, keep your front foot on the line and execute the turn by taking a series of small steps with your other foot;
  • While walking, keep your arms at your sides, watch your feet at all times and count each step;
  • Do not stop until you have finished the test

You will then be asked if you have any questions. If there are none, the police officer will tell you to begin the test.

The police officer is looking for the inability to remain in the "Instructional Position," starting the test too soon, stopping during the test, failing to touch heel to toe, stepping off the line, using arms for balance, executing an improper turn, and finally, taking an incorrect number of steps.
If you miss the heel to toe once with a gap of two inches or greater, the suspect will have failed the heel to toe requirement. The police officer looks for other clues as well. There are a total of 8 clues the officer is observing for.  2 out of 8 clues is considered a failure from the officer's perspective.  However, the officer should not be allowed to testify to pass or fail in court.  Rather he can report the results of the test for the judge to draw conclusions from.  This leaves room for advocacy by a DUI lawyer over what the test shows or does not show.  

FST #3 - One Leg Stand

The One Leg Stand is the final standardized FST. This test requires you to raise either foot off the ground six inches. Your arms must be at your sides. You must look at your raised foot and point your toe forward. You must count one thousand and one, one thousand and two, one thousand and three, and so forth until the police officer tells you to stop. The police officer will require you to perform this test for 30 seconds. The police officer will look for you to sway during the test, raise your arms six inches away from your body, drop your foot or hop.

Much like the HGN test, the reliability of the 9 Step Walk and Turn and the One Leg Stand are premised on the officer performing the tests in a very specific manner. However, even when performed in the proper manner, and even when performed under perfect conditions in a laboratory, NHTSA's own studies find that there is a very high error rate with these tests. When you add in the poor lighting, stress, and other environmental and situational factors present in a roadside encounter, it is no stretch of the imagination to see how and why people who are not intoxicated "fail" these tests.

It is important for a Fairfax DUI defense attorney to understand why an officer classified the test as a "fail" - was it because of a technical failure or was it because the test truly demonstrated a problem with motor skills and balance. In reality, the tests require a person to do unnatural things. It is often possible to elicit testimony from the officer about how the driver had no problems with fine motor skills in retrieving his or her license, using the controls of the vehicle, stepping out of the vehicle, etc. An officer's conclusion that a motorist failed a test should not go unchallenged.

Let a Fairfax DUI Lawyer Review Your Field Sobriety Tests

If you would like your DUI case reviewed by an experienced Fairfax Virginia DUI DWI Defense Lawyer and former prosecutor, call 703-556-0004 or use the Contact Us page to set up a free, no-obligation consultation.

Kyle Manikas
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