Part III – Roadside Sobriety Tests
Welcome back to “What To Do If You’re Pulled Over for DUI”. Today we’re going to talk about the roadside sobriety tests. A DUI investigation is a standardized investigation, which means that police nationwide are trained from the same manual to perform the same procedures in every traffic stop DUI. At Farnsworth Law Offices, we’ve spent hours reviewing these manuals and know these procedures inside and out. This means that we can use a cop’s own training against him to win your case.
Once you are asked to step out of the vehicle, most likely the officer has already decided to charge you with DUI, but he isn’t going to tell you that. He is going to ask you to perform a series of tests that are theoretically designed to show whether or not you are under the influence. You are not obligated to participate. If you’ve had anything to drink, the smart move is to politely decline to take the tests. Understand that unfortunately that means you are probably going to jail. However, keep in mind that if the officer has asked you to step out of the car, he probably already has his mind made up. He just wants you to seal the deal. Don’t give him the satisfaction. Refuse the tests, shut your mouth, go to jail, and call us in the morning. We’ll take it from there.
If you haven’t had anything to drink at all, you may decide you want to take these tests. Before you do, please keep in mind: 1) the tests are designed for you to fail (they are even difficult to pass when sober), 2) the tests are not even valid if given to someone 50 pounds or more overweight, or someone over 60 years of age (funny how the police won’t tell you this), and 3) everyday people are wrongfully arrested for DUI when they truly are not under the influence. The lawful definition of Under the influence is that you’ve consumed enough to “materially and appreciably affect your mental or physical faculties”. So basically, if you have had a few drinks and they haven’t affected your ability to drive safely, you AREN’T Under the Influence. The officers have a whole different outlook. They believe you are guilty of DUI if you’ve had anything to drink, and are trained to arrest you even when they are not sure if you’ve had too much. Do you really want to take that chance?
If you don’t know what’s good for you, or if you think you’re the one-in-a-million that can convince the cop that you’re not drunk by acing the tests, here is what you will be asked to do:
Walk nine steps heel-to-toe on a straight line in one direction, turn around, and return to where you started in the same manner. Looks easy, but it isn’t. If you’re wearing high-heeled shoes or have a history of leg injuries it will be even more difficult. Keep in mind that you will be terribly nervous, and they won’t tell you this, but raising your arms for balance will count as a fail.
2) HGN Test
HGN stands for “Horizontal Gaze Nystagmus.” Don’t worry about what that means (that’s our job!). The officer is going to stand close to you and ask you to follow his finger (or sometimes a small light) with just your eyes as he slowly waves it back and forth in front of your face. He will be watching your eyeballs for a distinctive wobble that occurs when people are feeling the effects of alcohol. Keep in mind that whether you “pass” or “fail” this test will depend on the officer’s subjective opinion about whether he saw a very tiny wobble in your eye. It is also important to note that many people exhibit this wobble when they are completely sober, for a variety of reasons. Our Courts have acknowledged at least 47 causes for nystagmus besides being under the influence.
3) One-leg Stand
The officer is going to ask you to stand on one leg, raise your other leg with your toe pointing up, and count, out loud,”one-thousand-one, one-thousand-two…” up to thirty. This one is tough! Try it right now; I bet you can’t pass even if you’re dead sober.
For all of these tests, the officer would demonstrate them before you’re asked to try. He’ll make it look real easy, but keep in mind that he’s been trained extensively in these tests and has practiced thousands of times. Don’t be fooled.
If you’ve come this far, this is the point where the cop is probably going to inform you that you are under arrest for DUI. Many of our clients are surprised by the officer’s decision to arrest them after they’ve done well on these tests. Again, there are incentives for DUI arrests to be made and the police often do not see these things objectively. (All the more reason to have a good lawyer who has made a reputation on challenging questionable arrests). This would be a good time to inform him that you won’t be answering any more questions or participating in any investigation until you get to talk to your lawyer at Farnsworth Law Offices.
Next week: The Breathalyzer….