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Why You Should Never Take the Field Sobriety Tests--They Are Designed for Failure

Posted by Tom Hudson | Mar 05, 2014 | 0 Comments

This is why you should never take the Field Sobriety Tests.

The police do them wrong almost every time, and never in your favor.  Here's an example.  This is a typical recent arrest in Sarasota County.  The test in the video is the "Horizontal Gaze Nystagmus Test."  It is supposed to see if your eyes jerk as you move them from side to side.  That can be caused by alcohol.  The problem is, it can also be caused by flashing or passing lights.  There is a specific caution in the instructions that strobe lights or passing traffic in the subject's field of vision will also make the eyes jerk.  The Manual says "Always face the subject away from strobes, rotating lights or traffic passing in close proximity."  So what's wrong with this picture?

As you can see, this officer has faced his subject directly into the passing traffic.  He is looking at the subject's eyes, while about thirty cars--each with multiple lights--goes directly through the subject's field of vision. The officer is completely unaware of his error.

I can guarantee you.  This subject is going to have jerky eyeballs.  Even if he hasn't had a drop to drink.  And jerky eyeballs means eight hours at the station riding a metal bench.

I have written about this subject in my book but I feel it's important enough to write about again.  The Standardized Field Sobriety Tests which were "validated" by the U.S. Department of Transportation, are nothing but pseudoscience.  In fact, they have never been scientifically tested in field conditions, and claims of 90% accuracy in determining who is over the legal limit are sheer balderdash..

The Standardized Field Sobriety Tests were created in 1977 by the National Highway Traffic Safety Administration, which examined the many field tests being used by various police agencies around the country. When NHTSA finished its study, it recommended a battery of three field tests to be used in a standardized manner nationwide.  The three test battery they recommended was

  • The Horizontal Gaze Nystagmus Test
  • The Walk and Turn Test
  • The One Leg Stand

At the time that the tests were published, NHTSA claimed that they were about 80% accurate in predicting who would score over 0.10 on a breath alcohol test.  (0.10 was the legal limit in all 50 states at the time.) They never published how they reached this conclusion.   It should be some indication of how un-serious these "scientists" are that when the nationwide alcohol limit was reduced from 0.10 to 0.08, they never repeated their research.

That's correct.  Instead of doing additional testing to see if the tests which were 80% effective at 0.10 were equally effective at judging people at the lower limit, they just changed the text of the manual.  Everywhere it had previously said the tests were 80% effective at 0.10, they just slapped on a 0.08, as if there was no difference in a 20% reduction in the legal limit.

The truth is this:  If you are legally sober, the odds are about one in three that you will be arrested if you take the field sobriety tests.  I go through the math in the book, but it is simply true that the tests are designed for failure.  There is no research on how long the average unimpaired person can stand on one foot without swaying or hopping.  It is total guesswork.  And that's when the police perform the tests correctly, which they do not often do.

There are few things that I know for sure, but one of them is this:  you should decline when offered the chance to participate in the Roadside Olympics.

About the Author

Tom Hudson

Known nationwide as a leading DUI defense lawyer, Tom has tried over 350 jury trials, including numerous death penalty cases. He now limits his criminal practice to DUI defense. His civil practice is devoted to getting fair compensation for the victims of negligence. Tom has attained multiple verdicts and settlements in excess of $1 million, and is a Life Member of the Multi-Million Dollar Advocates Forum. In 2008, Tom Hudson passed the National Board Certification Test for DUI Attorneys in Honolulu, Hawaii. NOTE: The State of Florida does not yet recognize DUI defense as a Specialty.


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Why We're Different

Board Certification as a DUI Specialist by the National College for DUI Defense. Formal NHTSA Certification as an Instructor of the Standardized Field Sobriety Tests given by police in DUI cases. Formal training as a NHTSA Drug Recognition Evaluator. ("Drug Evaluation & Classification") Formal training to operate the Intoxilyzer 8000, Florida's official breath test instrument. Extensive experience in teaching other attorneys how to handle DUI cases. Hundreds of jury trials both as defense lawyer and as prosecutor.