Field Sobriety Tests: Non-Standardized FST

Suspected drunk drivers in California typically take field sobriety tests before getting arrested. These exercises shouldn’t be called tests because they’re designed to be failed. They exist only to generate evidence and create probable cause for a drinking and driving court case. This evidence can be effectively challenged by a skilled defense attorney. A knowledgeable defense lawyer from The Kavinoky Law Firm can use the driver’s performance on a field sobriety test to demonstrate that the driver was not impaired.

Field sobriety tests fall into two categories: Standardized and Non-standardized. Three standardized tests recognized by the National Highway Traffic Safety Administration (NHTSA) are the Horizontal Gaze Nystagmus Test, the Walk-and-Turn Test, and the One-leg Stand Test.

There is a second category of tests so unreliable in gauging alcohol intoxication that they aren’t even recognized by the NHTSA, yet are still used by police. These Non-standardized field sobriety tests include the Rhomberg Balance Test, the Finger-to-Nose Test, the Finger Tap Test, the Hand Pat Test, the ABCs, the Numbers Backward Test, and coin tricks.

Non-standardized field sobriety tests are more easily challenged in court because they aren’t recognized by the NHTSA as accurate indicators of intoxication. While police claim that these tests measure mental and physical impairment from alcohol use, many of these so-called signs can be traced to physical problems other than alcohol.

A key aspect of successful DUI defense is the fact that experts agree that when it comes to alcohol intoxication, mental impairment always occurs before physical impairment. Some individuals have a high tolerance for alcohol and can mask signs of physical impairment, but mental impairment can never be disguised. If a driver is physically impaired but not mentally impaired, then physical impairment must have come from a source other than alcohol and the jury must acquit the driver on any driving while impaired charges.

Keep in mind that in order to return a DUI conviction, a jury must be convinced of the driver’s guilt beyond a reasonable doubt. An experienced DUI attorney knows that the inherent flaws in non-standard field sobriety tests pose great problems for the prosecution and create doubt in the minds of jurors.

Obviously, many factors unrelated to alcohol intoxication can cause physical impairment, including injury, illness, fatigue, or nervousness. By looking at the driver’s complete medical history, a lawyer who specializes in California DUI cases can establish whether causes other than alcohol impairment contributed to any physical impairment. Ultimately, the results of field sobriety tests can be successfully challenged.

Rhomberg Balance Test

The Rhomberg Balance Test is a non-standardized field sobriety test used by police investigating drunk driving or driving under the influence of drugs (DUI) in California. Many drivers hope they will avoid an arrest by “passing” a field sobriety test, but that’s almost never the case. Field sobriety tests exist solely to create probable cause to make an arrest and to generate evidence to support a drunk driving court case. A skilled DUI defense attorney from The Kavinoky Law Firm can effectively challenge a field sobriety test and other evidence in a drinking and driving case as part of an aggressive defense strategy.

The Rhomberg Balance Test is not a standardized test recognized by the National Highway Traffic Safety Administration (NHTSA), so it carries less weight in court than a standardized test.

Police administer the Rhomberg Balance Test by instructing the driver to stand with feet together, head tilted back, and eyes closed. The driver must estimate the passage of 30 seconds, tilt the head forward, open his or her eyes, and say “stop” when 30 seconds have elapsed.

Unfortunately, the Rhomberg Balance Test is rarely passed. If the driver overestimates the 30-second period by counting too slowly, the officer will likely conclude that the driver has been drinking. If the driver underestimates the passage of 30 seconds by counting too quickly, the officer may conclude that the driver has been using stimulants.

During the test, besides watching out for swaying, muscle tightening, or tremors, the officer is also testing the driver’s ability to follow instructions. The officer will take note any statements the driver makes, as well as the pattern of speech.

It isn’t difficult to see how a driver can “fail” the Rhomberg Balance Test. While the officer is using a watch to gauge the passage of 30 seconds, the driver is standing next to a busy street or freeway with his or her eyes shut and can only guess at how much time has passed.

Some drivers are physically unable to perform the Rhomberg Balance Test for reasons that are unrelated to alcohol use. For example, a driver with a neck or back injury may not be able to tilt his or her head back for 30 seconds. Although this inability to perform the test is caused by a genuine disability, police may regard it as an inability to follow test instructions.

To know how field sobriety tests’ reliance on physical ability is inherently unfair, it’s useful to understand how alcohol affects the human body. Alcohol intoxication causes both mental and physical impairment, but mental impairment always comes first. Physical difficulties can be hidden in individuals with a high tolerance for alcohol, but mental impairment cannot be masked. Therefore, if a driver displays physical impairment but no mental impairment, physical difficulties must stem from a source other than alcohol.

The bottom line is that the Rhomberg Balance Test and other field sobriety tests can be effectively challenged. An experienced California DUI criminal defense attorney will attack field sobriety tests and other evidence in a drunk driving prosecution as part of a proven defense strategy.

Finger-to-Nose Test

Police investigating a DUI in California often have the driver take the Finger-to-Nose Test or another field sobriety test before making an arrest. Field sobriety tests shouldn’t be called tests at all because they’re designed to be failed. They’re used only to establish probable cause to make an arrest and generate ammunition for a drunk driving court prosecution. The good news is that results of field sobriety tests can be successfully challenged by a skilled attorney. An experienced DUI defense lawyer from The Kavinoky Law Firm can aggressively challenge the Finger-to-Nose Test and other drunk driving evidence to create reasonable doubt of the driver’s guilt.

The Finger-to-Nose Test is so unreliable an indicator of alcohol impairment that it’s not even standardized by the National Highway Traffic Safety Administration (NHTSA), and therefore holds less weight in court than a standardized test.

Police officers conduct the Finger-to-Nose Test by instructing the driver to touch his or her nose with his or her index finger, with eyes closed and head tilted back. The driver is told to continue touching the nose with the left or right index finger at random. While administering the test, the officer is watching for the following signs of intoxication: An inability to follow instructions, poor depth perception, swaying, muscle tightening, tremors, or an inability to hold the finger directly on the tip of the nose. The officer will also take note of any statements made by the driver during the test.

Clearly, drivers don’t take the Finger-to-Nose Test under the best of circumstances; it is usually given by the side of a busy freeway or street as cars whiz past. The driver is typically nervous after being ordered from his or her car. And the Finger-to-Nose Test has no objective scoring system – the outcome of this “test” is based entirely on the officer’s opinion. Some officers don’t even conduct the test properly.

There are many conditions unrelated to alcohol use that could cause a driver to perform poorly on the Finger-to-Nose Test. Injury, illness, motor-skill difficulties, or just plain nervousness could cause a driver to “fail” the test. However, police rarely take these issues into consideration when conducting the Finger-to-Nose exercise or any other field sobriety test.

In fact, police often fail to tell drivers that the Finger-to-Nose Test and other field sobriety tests are completely optional. Unlike chemical tests given after a motorist is arrested for drunk driving, field sobriety tests are totally voluntary. If given an option, obviously drivers arrested for DUI would decline to create evidence to be used against them in court, but police are usually less than forthright about the test being voluntary.

An attorney with experience defending driving under the influence cases will challenge the officer’s interpretation of the Finger-to-Nose Test and demonstrate that the results indicate the driver wasn’t impaired. A California defense lawyer skilled in fighting drunk driving cases can mount an aggressive defense and contest the results of any field sobriety test.

Hand Pat Test

The Hand-pat Test is a field sobriety test used by law enforcement investigating suspected DUI in California. Unfortunately, police don’t use the test to help them decide whether to make a drunk driving arrest. Field sobriety tests such as the Hand-pat Test are merely tools used to create probable cause for an arrest and generate evidence for a DUI court case. However, field sobriety tests can be successfully challenged by a skilled attorney. An experienced DUI defense attorney from The Kavinoky Law Firm will attack field sobriety test results as part of an aggressive defense strategy.

During the Hand-pat Test, the driver is instructed to extend one hand palm up and place the other hand palm down on top. The driver is then told to pat the bottom hand with the top hand while alternating the top hand’s palm position – facing up then facing down between pats – and counting out loud with each pat.

As the test progresses, the officer watches for signs of intoxication. These include starting the test too soon, an inability to follow instructions, an inability to count as directed, an inability to pat the hands as directed, and ending the test before being told to do so.

The Hand-pat Test shouldn’t be called a test at all because the driver is set up to fail. The Hand-pat Test is so subjective that it is not even standardized by the National Highway Safety Traffic Administration (NHSTA). The NHSTA doesn’t regard the Hand-pat Test as an accurate indicator of alcohol impairment since it has no objective scoring system and relies solely on the officer’s opinion of whether the driver passed or failed.

A lawyer skilled in defending drunk driving cases will argue that a driver could have “failed” the Hand-pat Test for reasons that had nothing to do with alcohol intoxication, such as injury, illness, or a nervous-system disorder. The attorney can challenge the officer’s test instructions, or even argue that it wasn’t administered properly.

Even nervousness can cause a motorist to perform poorly on the Hand-pat Test. The test isn’t given under the best of conditions; the driver usually takes the test next to a busy freeway or roadway with cars speeding past and the police cruiser’s lights flashing red and blue. Anyone would get rattled under those conditions.

Contrary to popular opinion, “failing” the Hand-pat Test or any other field sobriety test doesn’t equal a slam-dunk conviction. Field sobriety test results can be interpreted in a number of ways. A skilled California DUI criminal defense attorney can challenge the results of a field sobriety test and craft a strategy to defend drunk driving charges.

ABC Test

Drivers suspected of DUI in California often take the ABC Test or another field sobriety test before being arrested. Drivers often hope that by passing this “test” they will avoid a drunk driving arrest. Unfortunately, the test only serves to justify an arrest and generate evidence for a court case. However, field sobriety test evidence such as the ABC Test can be challenged in court by a skilled DUI defense lawyer from The Kavinoky Law Firm as part of a strategic defense plan.

When administering the ABC Test, a police officer directs the driver to write or recite the alphabet while standing with his or her feet together and the arms down. While the test is in progress, the officer looks for signs of intoxication. These include starting the test too soon, an inability to follow directions, slurred speech, or an inability to write or recite the alphabet correctly.

Police and prosecutors may believe that this test is valid. After all, everyone knows their ABCs. In reality, anyone would be nervous after being forced from a car along a busy street or highway. The test isn’t given under the best of conditions – there are cars speeding by and there are too many distractions to count. Mistakes aren’t uncommon under these circumstances. The ABC Test doesn’t even really qualify as a test because the driver is doomed to fail regardless of his or her mental or physical condition.

There are many conditions unrelated to alcohol intoxication that might cause a driver to perform poorly on the ABC Test including illness, motor skill impairments, and nervousness. An experienced drunk driving attorney will collect a driver’s full medical history to determine whether reasons other than alcohol impairment may have caused a driver to “fail” the ABC Test.

The ABC Test is so unreliable a gauge of the mental and physical impairment caused by alcohol that it isn’t even standardized by the National Highway Traffic Safety Administration (NHTSA). Because the NHTSA doesn’t recognize the ABC Test, it carries less evidentiary weight in court than a Standardized field sobriety test. The ABC Test has no objective scoring system, and only the officer’s opinion determines whether the driver “passes” or “fails.”

Many drivers fear there’s no point in fighting a DUI charge because they mistakenly believe that “failing” a field sobriety test means a surefire conviction. However, that’s simply not true. The results of field sobriety tests such as the ABC Test can be successfully challenged in court.

A skilled defense attorney will question the arresting officer’s conclusions during cross-examination and bring out points that work in the driver’s favor. A California defense lawyer experienced in fighting DUI charges will dismantle the officer’s testimony as part of a strategic defense plan. Through careful cross-examination, a savvy defense attorney can demonstrate that the results could just as easily show that the driver was not impaired.

Number Backwards Test

Police who suspect a driver of DUI in California typically require the driver to take a field sobriety test such as counting numbers backward before making an arrest. Although many drivers hope that by “passing” a field sobriety test it will help them avoid an arrest, these “tests” exist solely to create a probable cause for an arrest and to generate evidence for a drunk driving court case. Fortunately, a skilled DUI defense attorney from The Kavinoky Law Firm can challenge the results of field sobriety tests as part of a strategic defense plan.

The Numbers Backward Test is very subjective in indicating alcohol impairment that it isn’t even standardized by the National Highway Traffic Safety Administration (NHTSA). Because the test isn’t endorsed by the NHTSA, it carries less evidentiary weight than Standardized field sobriety tests. The numbers backward exercise has no objective scoring system, and only the officer’s opinion determines whether the driver passes or fails.

When administering the Numbers Backward Test, the officer instructs the driver to count from one to ten, then back down to one. Sometimes the driver is instructed to begin at 100 or 1,000, and told to count backward until told to stop. As the test progresses, the officer will watch closely for signs that could be interpreted as alcohol impairment.

The Numbers Backward Test is a divided-attention test that’s designed to force the driver to concentrate on two tasks simultaneously. The officer will interpret the following as signs of intoxication: an inability to follow instructions, an inability to count, swaying or other balance problems, or starting or stopping the test too early.

However, many factors unrelated to alcohol intoxication could cause a driver to perform poorly on the test, including nervousness, fatigue, or motor-skills impairment. Some officers explain the instructions poorly or even administer the test incorrectly. An experienced DUI lawyer can successfully challenge the results of the numbers backward exercise or any other field sobriety test.

Many drivers fear there’s no hope of successfully fighting a driving under the influence charge after a poor performance on a field sobriety test. However, counting backwards and other field sobriety tests can be successfully challenged in court. A California drunk driving attorney who focuses on DUI defense can evaluate a driver’s performance on a field sobriety test and use the results to convince a jury that the driver was not impaired.

Finger-Count Test

Drivers suspected of DUI in California often must take a field sobriety test such as the Finger-count Test when stopped in traffic by police. Many drivers hope that by passing the field sobriety test they’ll avoid being arrested. What drivers don’t know is that police don’t use the Finger-count Test to determine whether to make a driving under the influence arrest. That decision is typically made long before the field sobriety test is given. The test results merely create probable cause for an arrest and evidence for a drunk driving court case.

However, regardless of the results of a field sobriety test, it’s still possible to fight drunk driving charges and win. A skilled DUI attorney from The Kavinoky Law Firm can aggressively challenge the results of the Finger-count Test and demonstrate that the results could just as easily prove a driver was not impaired.

The Finger-count Test isn’t standardized by the National Highway Traffic Safety Administration (NHTSA), and therefore carries less evidentiary weight in court than a standardized Field Sobriety Test. It’s extremely subjective; it doesn’t have an objective scoring system and depends solely on the officer’s opinion of whether the driver passed or failed the test..

Police officers administer the Finger-count Test, also called the Finger-tap Test, by asking the driver to hold out one hand, palm up, and touch the tip of each finger to the tip of the thumb. The driver is told to count out loud after each tap, forward and backward, for three consecutive sets.

While administering the Finger-tap Test, the officer watches for certain signs of intoxication, including starting the test too soon, an inability to count as directed, not following instructions, an inability to touch fingers as instructed, an inability to perform the correct number of sets, and stopping the test before told to do so.

The finger-count exercise shouldn’t even be called a test because it’s nearly impossible to pass. The symptoms of intoxication that police look for are extremely subjective, meaning they can be interpreted in a number of ways. Fatigue, illness, injury or even nervousness can make the driver fail the Finger-count Test. Sometimes the test isn’t even conducted properly.

Because the Finger-tap Test and other Non-standardized Field Sobriety Tests are so subjective and inherently unfair, they can often be successfully challenged in court. A California DUI lawyer who is skilled in the art of cross-examination will question the officer skillfully and bring out details that work in the driver’s favor.

Drivers who feel they failed a field sobriety test, like the Finger-tap Test often are reluctant to fight a drunk driving charge in court because they fear an automatic conviction. However, driving under the influence charges can be fought and won. Anyone arrested for drunk driving should contact a California lawyer skilled at defending suspected DUI rivers.