Virginia DUI Field Sobriety Tests

Hi, my name’s Jamie Johnson. I’m a DUI attorney with offices in Woodbridge, Virginia. Now in another video we talked about when DUI’s start and the initial stop and what the officer’s looking for, but we’re going to talk about here is the actual field sobriety tests. At this point, you’ve already been pulled out of the vehicle by the officer. They’re going to say it’s because either for officer safety or it’s because they suspect you of driving under the influence. When they’re conducting the field sobriety tests, there are actually only three approved field sobriety tests. And a lot of people don’t realize that. The alphabet test is not a field sobriety test. Counting on your fingers or counting from a number and stop and or counting backwards, all that stuff, that is not an appropriate field sobriety test. Those are what we call alcohol indicators. They’re checking to see if you’re able to do or multitask because one of the things that happens when you consume alcohol, one of the first processes that goes out in the brain is the ability to multitask. So it’s called split attention tests. That’s why they’re asking you those things. That’s why they’re asking you to get your license out and also asking you verbal questions to answer at the same time. They’re trying to see if you can maintain your attention of searching for your driver’s license while also processing the question and then answering the question appropriately.

HGN Test (“The Eye Test”) – Horizontal Gaze Nystagmus Test

Now, when you’re doing a field sobriety test, there are three field sobriety tests. The first one, which is the most accurate one, is the HGN. It’s the horizontal gaze nystagmus test, also known as the eye test. This is where they hold a pen or a light. They tell you to stand still, don’t move your head, only move your eyes and then they take that pen or light and hold it about 18 inches from your nose and they move it side to side slowly at certain intervals.

Now what they’re doing is they’re testing to see how your eye vibrates. First of all, they’re looking to see if your eyes smoothly pursuing the pen as it’s going from side to side. Because the muscles in your eyes are so sensitive to alcohol, there’s a direct correlation between how your eyes are reacting to the horizontal gaze nystagmus to what your blood alcohol content is. First they’re looking for are your eyes jumping around or is there smooth pursuit of the eyes.

The next thing that they’re going to look for is whether or not there’s what we call continued nystagmus at maximum deviation. That’s where they take the finger and hold it all the way out here at the side by the edge of your shoulder and they hold it there for four seconds. They want to see if your eye, because when it gets to this point and your eye’s going to be vibrating a little bit, but then if you’re not under the influence of alcohol, or if you’re below a 0.08, your eye should settle down after three seconds and stop vibrating. If it’s continuing to vibrate and kind of shake at four seconds, that’s called nystagmus at maximum deviation. That’s the second thing they’re looking for.

The third thing they’re looking for is they’re looking to see if there’s onset of that prior to 45 degrees. Now 45 degrees is typically about your shoulder, the edge of your shoulder. They want to see if your eyes are going to go nice … That last one’s going to be nice and slow. They’re looking to see if your eyes are able to follow it without vibrating. Those are the three things they’re looking for in an eye test, and that’s the most accurate tester. It’s about 92% accurate, which also means that it’s 8% inaccurate. Approximately 10% of the time, it’s a false positive. These things aren’t foolproof.

Walk and Turn Test

The second thing they’re looking for is the walk and turn test. This is the second most accurate test. It’s only accurate about 80% of the time. And that’s where you stand heel to toe, you’re going to put your right foot in front of your left, hands by your side, and this is called the starting position. They’re looking to see if you can stay in that position without moving. So basically, you can stand still without swaying or falling over and losing your balance, while the officer is demonstrating tests. It’s also a divided attention test. Can you stay in your position and follow what the officer is asking you to do? Typically, the officer takes about three steps demonstrating what they want you to do, demonstrates how they want you to make the turn, taking several small steps, keeping your left foot planted and turning around several small steps with your right and then coming back heel to toe nine more steps.

What they’re going to do is one, can you go heel to toe? Two, can you stay on a line? Three, can you keep your hands down by your side. Are you swaying? Are you losing your balance? There are very specific things that they’re looking for there. And to be offline, one of the things that’s really important here is, is there an actual line painted on the road? And this is something that your DUI attorney should ask you. Was there an actual line or, as the officer says, imagine there’s a line? Or if there’s an imaginary line, how the hell does the officer know if you’re stepping off the imaginary line? They can’t see the same line you’re looking at.

Essentially what they’re looking to see is are your feet lining up like this or is your foot completely off to the side? If you’re completely off to the side, then you’re off the imaginary line. As long as your foot is somewhere within the frame of your other foot, that’s considered to be on the line and should not be counted by the officer. They’re looking to see if you take the correct number of steps and how you make the turn, are you able to follow directions. Normal things.

One-leg Stand Test

The third and final field sobriety test is the one leg stand. Now this one’s the least accurate. For the one leg stand, that’s where they let you pick up whichever foot you want. You’re going to balance on a foot, kind of like a pitcher in baseball. You’re going to pick a foot up, you’re just going to raise your foot about six inches off the ground, toe pointed up in the air. You’re supposed to keep your legs as straight as possible. Now, that’s kind of a cheat thing that the officers do there and don’t let them kind of push out on you. You’re allowed to bend your knee a little bit. I mean, you can’t bend your knee all the way down like you’re pitching a baseball, but you’re allowed to bend your knee a little bit because it’s just a normal physical thing. You can’t balance on one leg when your leg’s straight. It needs to be bent a little bit.

If an officer is telling you, don’t bend your knee, don’t bend your knee, officer’s cheating and not doing the test properly. When the foot’s being raised up, you’re supposed to look at the foot and you’re supposed to count to 30. They want to see, are you raising your arms up to balance yourself? Are you swaying? Are you hopping? Do you put your foot down? These are the things that they’re looking for. If you do put your foot down, you need to pick your foot back up and continue counting. Don’t stop because if you put your foot down, that’s only one positive mark. There has to be two indicators in order for it to be a failed test. If you’ve put your foot down once and then you pick it back up and you continue on, you’re able to count to 30 and you’re not swaying or moving or anything else, you pass that test. Don’t just stop if you put your foot down, keep going. That test is only accurate I believe it’s 78% the time. It’s not a very good test.

Other Factors affecting Field Sobriety Tests in Virginia

Now of course, all these field sobriety tests are subject to multiple factors that the officers are supposed to take into account and should note in their field notes as well as in the criminal complaint, whether or not they’re abiding by this and make them valid tests. If you’re a heavyset guy like myself, these tests, they can’t be logistically applied to you. I mean the walk and turn test and one leg stand, forget about it. I mean, if you’re considered to be 30 pounds overweight, if you’re slightly obese, that’s not supposed to happen. If you have a history of knee and ankle injury, especially for former athletes or military, I’ve had a military client who got out who had issues with a hip and was discharged because of that.

They still put them through the field sobriety test and tried to count that against them. Instantly had that tossed. There are certain things that just because they say you failed your field sobriety test, doesn’t mean that it’s legitimately failed. That’s why, thank God they had the body cams nowadays. We can sit down, we can review your performance on the field sobriety tests and point these things out. Because the field sobriety tests are standardized nationally, the officers have to implement them and administer them in specific ways. They’re not allowed to deviate, otherwise it throws out the whole tests. I know this because I’m trained in the same tests that they are. In fact, I’m an instructor for field sobriety tests. When you’re meeting with an attorney to discuss this, make sure you’re going over the video from the dash, either body cam from a Prince William County police officer, or if it’s a state trooper, the dash cam, make sure that you’re looking at field sobriety test and make sure they’re being administered properly.

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