Akron

Field Sobriety Tests

Seek Guidance from Our OVI Defense Attorneys in Ohio

Police officers throughout the state are tasked with performing field sobriety tests (FSTs) to determine whether a driver may be operating their vehicle under the influence of drugs or alcohol. Though these tests seem effective in theory, they are actually subjective and often unreliable. In fact, FSTs are administered not to prove that a driver is impaired but to help officers gather evidence against a suspected drunk driver.

The most important thing a person should know about field sobriety tests is that you DON’T have to perform them. If a police officer smells alcohol, they will ask a person to get out of their car and tell them they are going to check them to make sure they are ok to drive. Most people do not realize that they can and should refuse to take these tests. Many people cannot pass these tests under any circumstances due to balance issues, or injuries. In most cases, it is in your best interest not to take these tests.

At DiCaudo, Pitchford & Yoder, our OVI defense lawyers in Akron, Ohio represent individuals who have been arrested after completing FSTs. We also defend individuals who exercised their right to refuse a field sobriety test. You can count on our team to fight for you every step of the way.

Discuss your situation with our trusted Akron field sobriety test lawyers today. Call 330-762-7477 to schedule a free consultation.

Types of Field Sobriety Tests in Ohio

Law enforcement officials and police officers in Ohio generally conduct one or more of three common field sobriety tests. These FSTs are intended to assess the degree of a driver’s impairment. The results of a field sobriety test can and will be used as evidence against you if the officer arrests you and you are charged with OVI.

The three FSTs include the:

• Horizontal gaze nystagmus (HGN) test
• Walk and turn test
• One leg stand test

These tests have a very arbitrary scoring system. There is no definitive way to say whether a person is said to be too intoxicated to drive. If you are thought to be over the legal limit, you may be placed under arrest and taken to the station for a chemical breath test. This test does have a mandatory penalty of one year driver’s licenses suspension if you refuse to take it. If you do take the breath test and blow above a 0.08%, you will be charged with an OVI/DUI.

Ohio Field Sobriety Tests Explained

Horizontal Gaze Nystagmus Test

Horizontal Gaze Nystagmus (“HGN”) is the involuntary jerking of an individual’s eye that occurs naturally as the eyes gaze to the side. Normally, nystagmus only occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object.

In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his or her eyes. The examiner looks for three indicators, or “clues”, of impairment in each eye:

1. Is the eye following the moving object smoothly?
2. Is there jerking of the eye is at maximum deviation, i.e. the farthest point it can move to the side?
3. Is the angle at which the jerking begins within 45 degrees of center

If the officer observes four or more clues, the individual is presumed likely to have a blood alcohol content of 0.08 or greater. The most often raised challenges to the HGN test are that it fails to account for various health conditions, such as inner ear problems, influenza, hypertension, arthritis, and glaucoma, that have been proven to affect an individual’s performance. Further, the use of items like aspirin, antihistamines, caffeine, and nicotine can also cause signs of nystagmus.

Walk and Turn Test

The Walk and Turn Test (“WTT”) is often referred to as a “divided attention” test, that, under normal circumstances, are easily performed by most people. The theory behind a divided attention test is that impaired people have difficulty with tasks requiring their attention for both mental and physical exercises.

In the WTT, the individual is instructed to take nine steps, heel-to-toe, along a straight line, turn on one foot and return in the same manner to the beginning point. In the WTT, there are eight clues indicating impairment:

1. Poor balance while listening to the instructions.
2. Beginning before instructed to do so.
3. Stopping to regain balance.
4. Failing to touch heel-to-toe.
5. Stepping off the line.
6. Using arms to balance.
7. Making an improper turn.
8. Taking an incorrect number of steps.

If the officer observes two or more clues, the individual is presumed likely to have a blood alcohol content of 0.08 or greater. The WTT has been criticized however, because the test is often administered on uneven surfaces, at night, on a surface with no actual line to walk on, or all three. Further, the test is unsuitable for people with back or leg injuries, individuals older than 65, and those with inner-ear disorders.

One Leg Stand

In the One Leg Stand Test (“OLST”), is also a divided attention test wherein the individual is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands until told to put the foot down. The test is timed for 30 seconds. In the OLST, there are four clues indicating impairment:

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

If the officer observes two or more clues, the individual is presumed likely to have a blood alcohol content of 0.08 or greater. Many of the same criticism made of the WTT apply to the OLST, as both can be affected by the surface they are conducted on, as well as various health conditions, discussed above, of the test-taker discussed above.

Ohio Law on Field Sobriety Tests

Standardized Field Sobriety Tests (“SFST”) are a set of tests administered by law enforcement officials to individuals suspected of being intoxicated and are designed to elicit certain indicators, known as “clues, of impairment. SFST’s were developed from research performed at the Southern California Research Institute and sponsored by the National Highway Traffic Safety Administration (“NHTSA”). The three SFST’s developed by NHTSA, and most commonly used, are the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, and the One-Leg Stand Test.

Ohio Revised Code 4511.19(D)(4)(b) establishes the standards for admissibility of the results of SFST’s in OVI/DUI cases. In order for SFST’s to admitted as evidence, the State is required to prove by clear and convincing evidence that the tests were administered in “substantial compliance” with standards for any reliable, credible, and generally accepted test such as those developed by NHTSA.

The Ohio Supreme Court has addressed the meaning of “substantial compliance” only once, in the case State v. Burnside (2003), 100 Ohio St. 3d 152. in Burnside, the Court determined that minor errors, referred to as “de minimus“, in the administration of SFST’s are not substantial and will not render the results of said tests inadmissible.

The effectiveness of SFST’s to determine impairment often depends on the law enforcement officer’s adherence to the standardized procedures for test administration and scoring. NHTSA has published materials describing ideal conditions for the administration of SFST’s, while also recognizing that ideal conditions do not always exist in the field. The effect of less-than-ideal conditions and errors in the administration SFST’s correlates with the weight such evidence should be given.

We Are Ready to Fight for You

Our Ohio OVI lawyers at DiCaudo, Pitchford & Yoder are extremely familiar with the field sobriety tests that Ohio law enforcement officials use to gather evidence against suspects. The unfortunate reality is that many of these tests are flawed for a variety of reasons.

Our Akron field sobriety test lawyers may be able to defend you by arguing that:

• The officer did not administer the test properly
• The officer did not explain the instructions adequately
• The officer did not inform you of your rights
• Other circumstances – such as a medical condition or weather conditions – affected your performance

With over 85 years of combined legal experience, or field sobriety test lawyers in Akron, Ohio know how to effectively defend you while protecting your rights and seeking a positive outcome. Don’t put your future in jeopardy – secure representation from DiCaudo, Pitchford & Yoder.

Contact us at 330-762-7477 to request a free consultation with our Akron field sobriety test attorneys.