Challenging FSTs (Field Sobriety Tests) in a Michigan OWI Case

When police officers suspect someone is driving while under the influence of alcohol, one of the first things they ask the driver to do is perform Field Sobriety Tests, or “FSTs”. But what are Field Sobriety Tests? Are the results admissible in court? And are you required to comply?

While a suspect’s performance on Field Sobriety Tests can provide information on whether a driver is impaired, the test results are not reliable and can be challenged in court. You are not required to submit to the Field Sobriety Test. And, unlike a chemical test, your driver’s license will not be suspended for failure to comply. Even if you completed the FSTs, the results are subjective. An experienced OWI / DUI defense attorney can challenge which tests the officer asked you to perform and the manner in which they were administered, and can seek to have the results excluded from consideration in court.

What Are Field Sobriety Tests?

When law enforcement officers suspect a driver is under the influence of drugs or alcohol, they may ask them to submit to various Field Sobriety Tests. While police officers and prosecutors want us to believe the test results are infallible, they lack scientific reliability. The results are subjective and based on the officer’s opinion of the driver’s performance, and they are simply intended to provide the officer with “evidence” they can use to describe the driver’s alleged level of intoxication.

The National Highway Transportation Safety Administration (NHTSA) has approved three tests that can be used to establish probable cause that a driver is under the influence of alcohol or drugs.

• Walk-and-Turn. In the walk-and-turn test, the suspect is asked to take nine heel-to-toe steps in a straight line. When the suspect reaches the end of the line, they are instructed to turn on one foot and return to the starting point in the same manner. The officer may cite the driver’s failure to take the required number of steps, failure to follow instructions, or balance issues as evidence of impairment.
• One Leg Stand. The officer will ask the suspect to stand on one leg with the other foot raised approximately 6 inches off of the ground while counting aloud for 30 seconds. Officers use the One Leg Stand test to assess a driver’s balance, coordination, and ability to follow instructions. The officer may cite swaying, hopping, or putting one foot down as evidence of impairment.
• Horizontal Gaze Nystagmus. Nystagmus refers to the involuntary jerking of the eye. It naturally occurs when a person looks to the side at an extreme angle. When conducting the test, the officer moves a pen or finger in front of the driver’s eyes while the suspect’s head remains still. The officer is looking for “clues” that could indicate the driver is under the influence of alcohol (the test has not been approved to determine whether a driver is under the influence of drugs).

Nonetheless, some officers ask drivers to perform tests that have not been approved by the NHTSA, such as reciting the alphabet backward, counting backward, or touching the nose with a finger.

Are You Required to Take a Field Sobriety Test?

In Michigan, drivers are not required to submit to Field Sobriety Tests. Unlike chemical tests of a driver’s breath, urine, or blood, which fall under the state’s implied consent law, there is no penalty for failing to submit to a Field Sobriety Test. Nonetheless, if a police officer asks you to perform FSTs, they likely already believe you are under the influence of alcohol or drugs and may arrest you on suspicion of OWI regardless of whether or not you take the tests.

Prosecutors may point to your refusal to submit to Field Sobriety Tests as evidence of alleged intoxication, but the lack of test results can make it more difficult to prove you were impaired.

Challenging Field Sobriety Tests

Police officers typically ask suspects to perform FSTs with the intention of gathering evidence to prove a driver was too intoxicated to operate a vehicle. However, they are not a scientifically accurate way of proving intoxication. An experienced OWI defense attorney can challenge how the tests were administered and the officer’s opinion of your performance on the FST as part of an overall OWI defense strategy.

Physical Limitations

The driver’s physical limitations can impact their performance on the FSTs. Drivers who are overweight or have a medical condition, injury, poor coordination, or are taking medication may have difficulty performing the Field Sobriety Tests, even when they are completely sober.

Testing Conditions

Field Sobriety Tests are conducted at the side of the road, often at night. The suspect’s performance could be affected by an uneven road surface, road debris, oncoming traffic, or lights from the officer’s cruiser.

Mental State

Being stopped by the police is a stressful experience. In times of stress, the body responds by releasing adrenaline and other hormones that could impact the driver’s performance on Field Sobriety Tests.

Officer Instructions

The NHTSA guidelines require that all FSTs be administered consistently. But in practice, each officer conducts the tests slightly differently. Some officers may never have been taught the correct way to administer the tests, or they may omit certain elements when conducting them. Regardless of the cause, FSTs are not administered uniformly. The officer may have provided unclear or incomplete instructions, made an error in conducting the test, or incorrectly scored the driver’s performance.

Elmen Legal Provides Aggressive Defense Against Michigan OWI Charges

Errors in the administration and evaluation of Field Sobriety Tests can arise for various reasons. Elmen Legal can identify these shortcomings and use them to seek to have a driver’s performance on FSTs excluded from trial, or use them during cross-examination of the police officer. Either way, challenging a driver’s performance on FSTs increases the likelihood of having the case dismissed or that the prosecutor will agree to reduce the charges.

Contact Elmen Legal Today

Elmen Legal is located in Ann Arbor and represents individuals in criminal matters throughout Michigan. Call (734) 707-8915 or contact Elmen Legal online to schedule an appointment to discuss your situation and how Robert Elmen can help.