Field sobriety tests (FSTs) are exercises that test a subject's balance, coordination, recollection and ability to follow instructions. A driver can refuse to take FSTs, but FSTs are not subject to Miranda warnings and safeguards prior to their administration.

FSTs are qualitative, gauging the effect of drug or alcohol ingestion, as opposed to quantitative, which suggest what and how much of it was ingested. FSTs only present an opportunity to observe the effect that an intoxicant (alcohol, illegal drugs, prescriptive medicines or over-the-counter medications) may have had on a subject. Thus, observation of FST performance provides police with insight into a driver's condition and ability to safely operate a motor vehicle.

Therefore, it is imperative that an officer conduct FSTs properly. He or she must both explain and demonstrate the procedures prior to asking the subject to take them, so that there can be no doubt that the instructions were clearly understood. Where this is not done, poor or incomplete performance can be attributed to misunderstanding, rather than inebriation. In short, a poor or incomplete test erodes the officer's once-steady foundation for an arrest for a DUI offense.

Attorney Elisabeth K.H. Pasqualini understands the mistakes officers can make while administering field sobriety tests, and she uses this information to aggressively pursue elimination or a reduction of her clients' charges. Contact our firm by calling 717-827-4074 to learn more about how we can help you fight DUI charges.

Approved Field Sobriety Tests

The National Highway Traffic Safety Administration (NHTSA) has approved five standardized FSTs. These tests are the

  1. Romberg balance test
  2. Walk-and-turn test
  3. One-leg stand test
  4. Finger-to-nose test
  5. Horizontal-gaze nystagmus test

The first four test balance and divided attention, or the ability to perform multiple tasks at the same time. While balance is not necessarily a factor in driving (bad knees, for instance, can create problems for many drivers), the lack of balance is an indicator that there may be other problems. Poor divided attention skills relate directly to a driver's exercise of judgment and ability to respond to the numerous stimuli presented during driving.

Nonstandardized Field Sobriety Tests

Nonstandardized tests are any one of many tests employed by officers around the Commonwealth and the country in the course of normal DUI/DWI investigations. They are not approved by NHTSA for one reason or another. Nonstandardized tests include the:

  • Alphabet test (reciting the alphabet or reciting the alphabet backwards)
  • Numbers test (doing multiplication sets or other counting)
  • Finger counting dexterity tests

These tests are often used to gather unofficial proof of intoxication, much like other symptoms such as slurred speech, incoherent speech, inability to focus or the presence of a strong alcoholic odor. They can be used as a basis for additional tests, such as the standardized FSTs or a portable breath test.

The problem with these tests and why they are not approved by NHTSA is because most require a level of education or linguistic ability that a given driver may lack. All of these tests have been previously evaluated by Shaffer & Engle Law Offices, LLC, to determine their strengths and weaknesses, and we have no problem questioning the validity of FST results or their use in court.

What About Portable Breath Tests?

Portable breath test (PBT) results are not admissible in court. While the PBT is an approved device, it is not one that is calibrated and approved for accuracy. A PBT serves as an aid to police in determining probable cause for arrest of a suspected drunk driver.

Thus, PBT results may be used by police for the sole purpose of establishing the presence of alcohol in a suspect's system. They then would have the grounds to conduct further chemical testing by more conclusive methods such as a blood, urine or Breathalyzer sample.

A Special Note About Your Miranda Rights And FSTs

"Don't the police have to read me my rights before they ask me to do field sobriety tests or take a portable breath test?"

This is one of the most commonly asked questions by our clients charged with a DUI offense. The "Miranda rights" is a common law rule set forth by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 346, 86 S.Ct. 1602, 16 L.Ed.2d 694, in which the Supreme Court held that absent a suspect's intelligent waiver of his or her constitutional rights, the suspect, before any "custodial interrogation," must be warned in clear and unequivocal terms that:

(1) He or she has a right to remain silent

(2) Any statements made may be used against him or her

(3) He or she has the right to consult with an attorney prior to or during such interrogation

(4) If he or she cannot afford an attorney, one will be appointed to represent him or her

"Custody" is defined as anytime someone has been deprived of his or her freedom of action in any significant way. "Interrogation" is defined as questioning initiated by a law enforcement officer for the purposes of eliciting a response.

The courts of Pennsylvania and other states have repeatedly held that an ordinary traffic stop is not "custody" [U.S. v. Butler, 249 F.3d 1094 (9th Cir. 2001); Com v. Mannion, 725 A.2d 196 (Pa.Super. 1999)]. Therefore, such rights do not apply to motorists stopped for routine traffic offenses and then asked to complete a set of field sobriety tests or a PBT.

Contact Shaffer & Engle Law Offices, LLC, For More Information

Regardless of whether you were asked to complete FSTs or take a PBT, timing is critical. Contact us to discuss your legal rights and options with one of the DUI lawyers at Shaffer & Engle Law Offices, LLC.

Learn more about DUI arrests and field sobriety testing on our Criminal Law Blog.

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