DUI Standardized Field Sobriety Test & Possible Defenses

Make no mistake about it; you are NOT legally required to submit to a field sobriety test in the state of Nevada. Nor will Nevada’s DMV suspend your license solely on the grounds that you refused to do a field sobriety test. Nevada’s DMV will suspend your license after you have been arrested for a DUI or if you request a DMV hearing after the arrest and then the DMV finds you guilty in their own hearing.

Let’s also make it clear that if an officer has probable cause to believe you are intoxicated, then you MUST submit to a Breathalyzer/Intoxilyzer machine or blood draw from a nurse at the police station. If you refuse both Breathalyzer/intoxilyzer machine and blood draw, they will take your blood either with your cooperation or take it by force. It is strongly recommended that you request to do the Breathalyzer/Intoxilyzer machine, and NOT the blood draw. Blood tests are more accurate and generally there are less chances of error.

The purpose of the field sobriety test is to test your coordination and concentration abilities. Police use this test to obtain validated indicators of impairment and to build probable cause against you so they may arrest you for a DUI. Police may still arrest you for a DUI even if you do not perform a field sobriety test if they believe they have probable cause from other facts, such as failing to maintain your lane, bad driving, glazed eyes, slurred speech, or any fact that may suggest you are intoxicated.

If you do happen to do a field sobriety test, you will have to perform several tests, which you will most likely fail, sober or not.

The typical field sobriety tests one will have to perform in Nevada are

• Horizontal Gaze Nystagmus (HGN) – This test looks for the involuntary jerking of the eyes as they move side to side. This test is conducted when an officer ask the suspect to track his finger, pen, or light from left to right. The officer is looking for exaggerated eye jerking at lesser angles, such as looking straight ahead, in both eyes. The officer will also be looking for difficulty tracking his finger side to side, because this may imply impairment. The officer is looking for 3 indicators of impairment in each eye: if one cannot follow the moving object smoothly; if jerking is distinct when the eye is at the maximum deviation; and if the angle of onset of jerking is prior to 45 degrees of center. If the officer, between the two eyes, observes 4 or more clues, then this is considered to show that one has a BAC of .08 or greater. There can be non-alcoholic related reasons for failing this test and there may be issues with the officer not properly conducting the test. Depending on your case, this may be used as a defense in pretrial or trial. See Video.

• Walk-and-Turn (WAT) – This test looks to see if the suspect can follow directions and perform some physical actions. The Walk-and-Turn requires the suspect to take 9 heel-to-toe steps in a straight line and then return in the same manner. The officer conducting this test looks for 8 indicators of impairment: suspect cannot keep balance while listening to instructions; begins before the instructions are finished; stops while walking to regain balance; does not touch heel-to-toe; steps off the line; uses arms to balance; makes an improper turn; or takes an incorrect number of steps. If two or more indicators are found, then this allegedly tends to show impairment. There are numerous reasons why someone who is completely sober can fail this test. Shoes, uneven walking surface, lighting, age, weight, prior injuries, or any other physical conditions can cause one to fail. In fact, the suspect should not perform this test in Nevada if over 65 years of age or 50 pounds overweight. See Video.

• One Leg Stand (OLS) – This is another test that tests the suspect’s ability to follow directions and one’s physical ability. One will be instructed to stand with 1 foot approximately 6 inches off the ground and count aloud by thousands until told to put foot down (e.g. up to one thousand thirty). The suspect will be timed for 30 seconds and the officer will look for 4 indicators of impairment: swaying while balancing; using arms to balance; hopping to maintain balance; and putting the foot down. The officer will consider just 2 indicators as a sign of impairment. Various physical and environmental factors can cause someone who is not impaired to fail this test. See Video.

You can see why it is important to NOT do any field sobriety tests, they are difficult for the average person and various non-alcoholic factors will cause people to fail. Politely decline to do any of these tests, even if threatened with arrest, because it is better not to incriminate yourself with these tests and be arrested than to fail them and be arrested. See Traffic Stops and Your Rights Link.

Attorney Garrett T. Ogata is trained and certified by the National Highway Traffic Safety Administration (NHSTA). He is a co-founder of Las Vegas DUI Center and a member of the National College of DUI Defense. Schedule a free consultation with The Law Offices of Garrett T. Ogata.