Field Sobriety Test: One-Legged Stand and PBT

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Lansing Michigan OWI Attorney

FST– One-legged Stand (OLS) and the Preliminary Breath Test (PBT)

This is the third and final standardized field sobriety test we will be discussing. It is known as the one-legged stand and the driver will be doing just that– standing on one leg for a period of time while maintaining balance. Many people would not be able to successfully perform this test stone sober.

 

The driver is told to hold one leg six inches off the ground while keeping both legs straight and arms at the sides. Then, they are told to hold the leg off the ground until told to stop. This should terminate after 30 seconds. Sometimes the officer counts silently or tells the driver to count out loud to 30.

There are four clues to judge how well the driver did:

  1. Swaying while balancing
  2. Using arms while balancing
  3. Hopping
  4. Putting the foot down

Any one of these will result in the driver failing this test. Just like with the walk-and-turn, there needs to be a reasonably dry, hard, and non-slippery surface. If the driver is wearing two-inch heels, has back, leg, or middle ear problems, or is 50 pounds overweight, the officer needs to take that into consideration when evaluating or possibly foregoing this particular test all together.

The officer is required to take detailed notes in standard note-taking guides as the descriptions in detail are important in establishing probable cause for the arrest. Unfortunately, they rarely do.

 

Preliminary Breath Test (PBT)

This is given or offered at the roadside where the officer is conducting the field sobriety tests. It is a portable device that uses an infrared beam that measures the change in energy created by the beam as it passes through the compound that is blown into the chamber. It gives a preliminary reading as to the driver’s blood alcohol content. In order to give an accurate reading, it must be regularly calibrated and have routine maintenance performed and used by someone who is properly trained to use it. Prior to the PBT being administered, the officer administering it must observe the subject for at least 15 minutes to make sure that nothing was placed into the mouth and that there was no regurgitation, belching, or vomiting. Any of these can throw off the reading of the machine. While the results can be used as probable cause for an arrest, it is rarely allowed at trial as evidence. Make sure you have the maintenance records, calibration logs, and certification of the administer to check for any problems. These can obtained through FOIA requests from the police department or sometime through discovery.

 

If you have been charged with OWI, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to our Michigan OWI attorney to review your case, especially the administering of the field sobriety test.

 

Representing DUI clients on drunk driving charges throughout Michigan in the counties of Ingham, Eaton, Barry, Clinton, Jackson, Shiawassee, Gratiot, Livingston, Washtenaw, Kent, Calhoun in the cities of Lansing, East Lansing, Mason, Haslett, Okemos, Eaton Rapids, Hastings, St. Johns, Bath, Ithaca, Alma, Jackson, Corunna, Durand, Brighton, Howell, Ann Arbor, Grand Rapids, Kalamazoo, Battle Creek.

Field Sobriety Test: Walk and Turn

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FST– Walk and Turn (WAT)

This is the second of the three field sobriety tests that we will be discussing in detail. This one requires standardized instructions. The subject is instructed to perform nine steps touching heel-to-toe and is then told to turn around and perform the nine heel-to-toe steps again. However, a demonstration by the officer only consists of three heel-to-toe steps.

 

The officer is taught to look for eight clues which can off the score of the subject. They are:

  1. Unable to keep balance while listening to instructions
  2. Starting before the instructions are finished
  3. Stopping while walking
  4. Not touching heel-to-toe
  5. Stepping off the line
  6. Using arms to balance
  7. Making an improper turn
  8. Performing an incorrect number of steps

If the driver exhibits two or more clues, they fail, thus indicating intoxication.

This test requires a straight line and a reasonably dry, hard level and non-slippery surface and enough room to turn. Often a burm line or parking space line will be used if available. If the driver is wearing two-inch heels, they should be given a chance to take them off. Take as many mental notes as possible to relate to your DUI lawyer about the surrounding area. It is also best to view the place in the daytime for a more accurate observation. Again, the police report and cruiser cam videos should be carefully scrutinized to make sure the instructions were given properly and the test was administered correctly.

 

If you are facing an OWI, contact our Michigan OWI lawyer today at Austin Legal Services, PLC at (517) 614-1983.

 

Defending OWI charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Shiawassee, Lenawee, Jackson, Barry, Livingston, Kent, Washtenaw in the cities of Lansing, East Lansing, Mason, Holt, Okemos, Delta Township, Lansing Township, Jackson, Bath, St. Johns, Jackson, Hastings, Howell, Brighton, Grand Rapids, Ann Arbor, Corunna.

Field Sobriety Test: Horizontal Gaze Nystagmus (HGN)

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Lansing Michigan OWI Attorney

FST– Horizontal Gaze Nystagmus (HGN)

The HGN supposedly detects an involuntary jerking of the eye (nystagmus) while the eyes attempt to follow a stimulus. In other words, it involves the eye following an object to determine characteristic eye movement. Police officers across the county have been trained to use this as a means of determining if a driver is inebriated even though there are more than three dozen potential causes of nystagmus other than intoxication. This is among the longest and most complex FST. Here’s how it goes.

First, the officer must check the eyes by holding a stimulus (usually a pen) 12 to 15 inches from the nose slightly above eye level and then move it smoothly across the field of vision checking for resting nystagmus, equal pupil size, and equal tracking. The test must begin with the left eye and then right at a rate of two seconds per each eye per pass. Then, the officer must check for distinct and sustained nystagmus at maximum deviation, tracking each eye separately starting with the left eye. He must hold the stimulus at least four seconds once the stimulus is at the farthest point and the eye is at maximum deviation. This is repeated to check for heavy or distinct, sustained nystagmus.

The next step is to check for an onset of nystagmus prior to 45 degrees for the stimulus to reach the edge of the driver’s shoulder. The officer must stop if he sees any signs of jerking to see if it continues. This is repeated so that each eye is checked twice. The full four seconds must be used because if the stimulus moves too fast, the officer may go past the point of onset or miss it altogether.

Officers are trained to look for three clues when evaluating the nystagmus in each eye:

  1. An inability to follow a moving object smoothly
  2. A distinct and sustained nystagmus at maximum deviation
  3. An onset of nystagmus at prior to 45 degrees

There must be a total of 14 passes for approximately 84 seconds. If the officer does a different number of passes than this or the time if significantly above or below 84 seconds, you know they’ve done it wrong. It is very important that the police report and cruiser cam videos be carefully examined to scrutinize the administration of this test.

 

If you have been charged with an DUI, call Austin Legal Services, PLC at (517) 614-1983 to speak to our Michigan OWI Attorney about your case.

 

Representing OWI Clients throughout Michigan in the counties of: Ingham, Eaton, Jackson, Livingston, Shiawassee, Kent, Clinton, Barry, and Gratiot and in the cities of: Lansing, East Lansing, Mason, St. Johns, Bath, Ithaca, Charlotte, Jackson, Brighton, Howell, Corunna, Grand Rapids. 

Field Sobriety Tests

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Lansing Michigan DUI Lawyer

Field Sobriety Tests (FST)

Field Sobriety Tests (FST) are a series of test established by the National Highway Traffic Safety Administration (NHTSA) to help police officers determine when a driver is at or above the legal limit of .08 blood alcohol content. They are not designed to determine impairment of the driver. Police officers nationwide administer these tests at the roadside, usually around 2:30 a.m. to motorists suspected of drunk driving. They are not without controversy however as many believe them to be unreliable and unscientific. The three standardized FST they are often administered are the Horizontal Gaze Nystagmus, Walk-and-Turn, and the One-legged Stand. There is also a portable device called a Preliminary Breath Test which gives a precursory reading of your blood alcohol content. I will discuss each of these in more detail.

In 1991 Dr. Spurgeon Cole from Clemson University conducted a study on the accuracy of field sobriety tests. His staff videotaped 21 people performing FST and then showed the videos to 14 police officers and asked them which ones “had too much to drink and drive.” The police officers concluded that 46% of the subjects were too drunk to drive. Unknown to the officers, all of 21 subjects in the video had a BAC of .00. According to studies conducted by the NHTSA, the Walk-and-turn only has an accuracy rate of 68% while the One-legged stand is only 65% accurate. Keep in mind that these statistics reflect when the tests are supposedly performed correctly. The accuracy rates will be much lower when not administered correctly.

It is easy to see why you should never attempt any FST. They are often not administered properly and even when they are, you will almost assuredly fail at least one of them which is enough to land you in handcuffs and an escort to the police station. They are designed for failure so do not attempt them. Ever.

 

Non-Standardized Field Sobriety Tests

Watch out for when the police try to have you perform FST that are not standardized, or scientifically validated, by the NHTSA. These can include having you recite the alphabet, sometime backwards (yes, they actually do that), or reciting the days of the weeks or months of the year in some mixed up order, touching your nose with your finger. These tests are not standardized nor are the officers trained to administer them, so under no circumstances should you ever attempt any of these tests. For that matter the police shouldn’t even be asking people to do them, but they do.

 

FAQs About Field Sobriety Tests (FST)

Can I Refuse to Take a Field Sobriety Test?

Yes and you should. This refusal has no penalty and cannot be used against you. Virtually no good can come from taking the FST as undoubtedly you will fail one or all of them. By taking them you are only arming the government with more evidence against you so you should always politely decline. Refusing the roadside Preliminary Breath Test (PBT) is a no-point civil infraction with a fine running between $100-200. Do not confuse this with the DataMaster breathalyzer at the police station. Refusing any chemical tests at the police station has serious penalties and consequences.

 

If I Pass All the FST, Can They Still Arrest Me?

Yes, if the are other factors that the officer can articulate that suggest intoxication. These can include: a strong odor of intoxicants, bloodshot eyes, slurred speech, disoriented as to time and place, lack of coordination, weaving while driving, being slow to respond to questions or requests, fumbling for your driver’s license or registration, admitting to drinking alcohol. This is another good reason why to refuse to take the FST because even if you pass (which is rare) it still doesn’t mean you’re home free. Keep in mind that you only have to fail one FST to establish probable cause for the police to arrest you.

 

Can Refusing a FST or a PBT be Used Against Me in Court?

No. At least, not usually. Refusing to perform a FST will almost never be used at trial, especially as evidence of your guilt. The PBT refusal is usually not allowed to be brought into evidence at trial, but it can if the defense raises the defense of a rising blood alcohol content (the BAC was higher at the police station than the roadside, thus meaning that maybe your BAC was below the legal limit at the time of driving) or if the defense contends they were never offered a PBT. Other than that, your refusal has no penalties and cannot be used against you.

 

If you have been charged with OWI you need an experienced attorney representing you. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan OWI Lawyer about your case.

Representing OWI Clients throughout Michigan in the counties of: Ingham, Eaton, Jackson, Livingston, Shiawassee, Kent, Clinton, Barry, and Gratiot and in the cities of: Lansing, East Lansing, Mason, St. Johns, Bath, Ithaca, Charlotte, Jackson, Brighton, Howell, Corunna, Grand Rapids.