In Arizona, field sobriety testing is voluntary
Want to help the police officer build a DUI case against you? If so, take their tests in ignorance. Want the real truth? Then protect yourself and read on.
"Field sobriety testing" (or FSTs) as practiced on the city streets and highways of Arizona is not an effective indication of a person's level of intoxication. There are no conclusive studies linking the results of any field test to legal intoxication. The best studies show less than an 80% rate of accuracy.
Only three of the tests available to officers have been given any shroud of "scientific" legitimacy by the National Highway Traffic Safety Administration (NHTSA). These tests are:
- The Horizontal Gaze Nystagmus Test ("The Eye Test," see below for more details)
- The Walk and Turn Test
- The One Leg Stand Test
All other tests are not validated in any official way. In fact, many of the tests involve closing your eyes and balancing. Without a visual frame of reference, no "balance" test can honestly claim to measure sobriety or intoxication.
Therefore, tests such as the Finger to Nose Test, and the Rhomberg Balance Test should be avoided.
Other tests, such as counting or saying the ABCs backwards, counting your fingers, or playing "pattycake" have no correlation whatsoever to ones ability to operate a motor vehicle safely.
Officers regularly testify that FSTs are gauged to measure "divided attention." For instance, when you drive, you must divide your attention between several tasks, such as steering, breathing, navigating and signaling. The theory is that alcohol impair one's ability to divide attention.
You have the absolute right to refuse to submit to field sobriety testing. If you decide to take the tests, the officer cast his/her own interpretation of your performance on your case. Keep in mind that the officer is already investigating you for DUI, and in all likelihood will arrest you even if you take the FSTs.
THE DRAWBACKS OF REFUSING THE TESTS:
Contrary to common misunderstanding, refusing the submit to field testing will not result in the suspension of your driving privileges. The biggest drawback of refusing these tests is that the prosecutor will argue that you refused out of a "consciousness of guilt." The prosecutor will try to make the Jury believe that you didn't take the tests because you knew you were drunk and would fail them.
There is case law in Arizona that states that admitting the fact that you refused to take field sobriety tests during your arrest is admissible in court as it doesn't violate your Fifth Amendment right against self incrimination and to have an attorney present prior to questioning. However, your lawyer can still argue that field testing involves a search. Anytime a search is conducted under the 4th Amendment of the United States Constitution there must either be a warrant for the search or a valid exception to the requirement of a warrant. Consent is a valid exception to the 4th Amendment. If you exercised your right to refuse the search (the FSTs) under the 4th Amendment, it should not be used against you.
The other major drawback to refusing field testing is that the officer will probably arrest you right away. Usually, this just speeds up the inevitable. The officer might also threaten that if you don't take the tests, you will be booked into jail. If threatened, generally it is okay to do them, just let the officer know that you are cooperating out of respect for him/her and politeness, and that you are doing so under protest. That way, your DUI attorney can later make a motion to suppress the tests because they lacked your voluntary consent.
More on the Horizontal Gaze Nystagmus Test
The Horizontal Gaze Nystagmus test (HGN) is the eye test that officers give you roadside when they are doing a DUI investigation.
DO I HAVE TO TAKE THE EYE TEST?
Like all field tests, the answer, in Arizona, is&no. If you refuse, the officer will likely arrest you. However, it is better to be arrested before, rather than after the test. Why? Because if you take the test, the prosecution and cops will try to make the result that the officer records (nearly always a "fail") seem like irrefutable evidence of your guilt.
HOW ARE OFFICERS IN ARIZONA TRAINED IN HGN?
Most officers take a weekend length class in the curriculum prescribed by NHTSA (National Highway Traffic Safety Administration). The class consists of roughly 20 hours of classroom and "hands on" experience.&Here's a dirty little secret... I have never met anybody who fails the testing at the end of the course and does not graduate, and I defy any prosecutor or police officer to name one currently employed police officer who has.
Once the officers do their initial HGN training (which is combined with training on the One Leg Stand and Walk and Turn tests), then they must get experience in the field. They must do approximately 20 total tests& before they are deemed certified to testify about the test in court.
Keep in mind that DUI officers are trained by other police officers. They are not trained by doctors or neurologists to diagnose nystagmus, which is essentially what this field test asks them to do.
HOW CAN I COMBAT THE COP'S ASSERTION THAT I FAILED?
Any DUI defense lawyer worth his/her salt will be well versed in this test, and able to recite numerous alternative causes for the phenomenon of nystagmus (other than, of course, alcohol). Some of the causes include:
- problems with the inner ear labyrinth;
- irrigating the ears with warm or cold water under peculiar weather conditions;
- streptococcus infection;
- muscular dystrophy;
- multiple sclerosis;
- Korchaff's syndrome;
- brain hemorrhage;
- motion sickness;
- eye strain;
- eye muscle fatigue;
- changes in atmospheric pressure;
- consumption of excessive amounts of caffeine;
- excessive exposure to nicotine;
- circadian rhythms;
- acute trauma to the head;
- chronic trauma to the head;
- some prescription drugs, tranquilizers, pain medications, anti-convulsants;
- disorders of the vestibular apparatus and brain stem;
- cerebellum dysfunction;
- exposure to solvents, PCBS, dry cleaning fumes, carbon monoxide;
- extreme chilling;
- eye muscle imbalance;
- continuous movement of the visual field past the eyes;
- antihistamine use.
The point is this: how can any officer, who is not trained in medicine or neuroopthamology distinguish between any of the above 39 other possible causes of HGN, and alcohol as a cause? The answer is simple, he/she can't. It is your DUI defense attorneys job to make the Judge and Jury see and understand this simple fact.