Field sobriety tests are tests that a police officer will have you take on the side of the road as a part of a DUI investigation. Many people agree to take these tests thinking that they are legally required to do so. The fact is that you can refuse to take field sobriety tests. Your refusal cannot be used against you in court except if you refuse the HGN or eye test. That’s because you’re right to remain silent protects you from either answering questions, or performing certain behavioral tasks that could be considered what the Supreme Court has called “testimonial” in nature. It’s considered compelled speech according to the Supreme Court.
The first of these tests is one that most people are familiar with. It is called the walk and turn test where the officer asks you to imagine a straight line, and walk that line heel to toe until you have walked nine steps. Then you have to turn around in a specific way, and walk nine steps back, heel to toe. Most people think that they can pass that test if they simply don’t fall over but they don’t know all of the things that the officer is looking for. The officer tells you how to do it, but unless you have read DUI police reports, or the manual that tells you how to do this, you don’t know what he’s really looking for.
Connecting all nine steps perfectly heel to toe is something that you would have to do. Any missed heel to toes is one clue but probably the trickiest part of it is the turn. It’s doubtful that even the officers know how the turn is really supposed to be executed. People generally fail because it’s an awkward thing to do correctly. If you use your arms for balance that’s another clue. You also have to keep your gaze down at the line. You can’t look up. If you sway while you’re walking, even if you don’t raise your arms, that could also be a clue. If you take the wrong number of steps, you did it wrong and that’s going to be another clue.
The other field sobriety tests that you don’t have to take is the one legged stand where you stand on one leg, stick the other leg straight out, and stare at your toe for 30 seconds. Most people don’t have that kind of balance even when they’re sober. Again, any minor slip up can be a clue that you’re impaired.
These two tests, the walk and turn, and the one leg stand test, are the field sobriety tests that you’re not required to take because the Supreme Court has determined that they are testimonial in nature. If you refuse to take them, that cannot be used against you in a court of law. A prosecutor can’t argue that you are more likely to be guilty because you declined to take the field sobriety tests.
There is one field sobriety test where refusal can be held against you. That is the eye test. In the eye test, the officer will hold a pen or other stimulus in front of your eyes and have you watch the end of it while he moves it from side to side, following the motion with your eyes only (no head movement).
What he’s looking for is an involuntary eye condition called nystagmus, which is the involuntary jerking of your eyeball in response to it’s horizontal limits to the left or right. This involuntary jerking is going to happen if someone is under the influence of alcohol. However, other things can affect it too. For example, caffeine can cause nystagmus. Some people just have it and they have it all the time. The eye test is one of the field sobriety tests that you may not want to refuse. If you do refused to take that test, they can hold that against you later in trial.
Knowing your rights is empowering, which is why hiring an experienced DUI lawyer to help you navigate Oregon’s complicated DUI laws, can seriously benefit the outcome of your case. No matter if it’s your first DUI or you’ve already had a few, DUI attorney Henry LeSueur has an exceptional track record helping people get the best outcome possible in a DUI or Diversion case.