And How This Local Attorney May Be Able To Beat Them
In Okaloosa County and Walton County, police use the same basic types of DUI physical tests. An experienced and aggressive DUI lawyer can really go after a cop during cross-examination regarding any Field Sobriety Test in order to call into question whether or not they are fair and legitimate physical tests, or just a prosecutorial tool.
Horizontal Gaze Nystagmus
This is also called the “Pen Test.” The officer will ask you to keep your head still while you track a pen with your eyes. Sometimes they will continue this test for several minutes, which makes it difficult to endure. They are looking for small twitches as they bring the pen to an angle toward your peripheral vision. If you move your head or stop tracking the pen, they count it as a failure. The problem with this test is that some people have suffer from eye spasms and twitches even perfectly sober. In addition, during tiredness or periods of eye strain will also cause nystagmus. Although every cop thinks they can detect a level of alcohol impairment from this test alone, it is usually not admissible in court.
Walk and Turn Test
In addition to the Horizontal Gaze Nystagmus Test, these are the two most commonly used Field Sobriety Tests at Drunk Driving stops. It requires that the subject walk nine steps in a perfectly straight line, heel touching toe, then turn around and walk back nine steps in the opposite direction.
The Walk and Turn is hugely popular by law enforcement for several reasons:
- It requires a lot of detailed instructions for the subject to remember before they can begin the test.
- While you have probably never done the Walk and Turn Test before, law enforcement officers are not only trained on how to do the test perfectly, but they also practice the test often so their demonstrations look good on video.
- Police will require that the subject walk “heel to toe” with the heel and toe touching on every step. While this is easy for police wearing hard soled boots, people wearing softer athletic shoes or sandals—it will cause them to lose their balance or not walk in a straight line. Not to mention that most women’s shoes make this task nearly impossible.
- If you happen to be a military member and are used to doing an “about face” turn, the cop will tell you that is wrong because they wanted a “series of small steps.” Even if the “about face” is executed perfectly, they will characterize it as a failure for an “inability to follow their instructions.”
One Leg Stand Test
The next most common test is the One Leg Stand Test. This is a balancing exercise that most people have difficulty with regardless of their level of sobriety. Standing on one foot while counting silently to yourself for 30 seconds or more is not easy when you are scared, anxious, nervous, and worried about an officer that is scrutinizing every bodily movement. In addition, police will rarely, if ever, take into account your prior foot, knee, back, hip, or other injuries.
Just to give you an idea of how crazy this test is, here are the different ways you can fail according to DUI investigators:
- Putting your foot down once, you fail.
- You hop, you fail.
- Not keeping your foot exactly 6 inches off the ground, you fail.
- If you do not point your toes of your raised foot up at the proper angle, you fail.
- Using your arms for balance, you fail.
- Any swaying whatsoever, you fail.
- While counting silently for the 30 seconds, the officer will be timing you on a stopwatch. If you get to 30 too early or too late, you fail.
- If you open your eyes during the test, you fail.
Finger to Nose Test
Another blind test, you must stand with your feet together, tilt your head back and try to touch the very tip of your index finger only to the exact tip of your nose. This test is difficult for several obvious reasons, not to mention, you probably have never practiced this before. The first problem that I always point out during trial is when you have a lack of depth perception, it is impossible to consistently touch a target with your finger. With both eyes open, it is possible, but with one or both eyes closed, touching the tip of your finger to the tip of your nose is downright impossible unless you have practiced.
These four tests are the most commonly used Field Sobiety Tests by local law enforcement. Okaloosa County Deputies and Florida Highway Patrol Officers sometimes add the Rhomberg Alphabet Recitation Test, also known as the “ABC Test,” but because this is not as difficult as the others, they are starting to avoid using it during their DUI investigation.
A Local DUI Attorney Who Knows What to Expect from Local Cops
As an attorney that has handled hundreds of DUI cases locally in the Destin, Crestiew, and Fort Walton Beach areas, I know what Field Sobriety and Breath Tests are used, the particular tendencies of a particular DUI investigator as well as common mistakes that they make that could lead to a reduction in charge or case dismissal.